Constituting Aboriginal Collectivities: Avoiding New Peoples 'In Between'

Patriation of the Canadian Constitution, along with the addition of significant new provisions since 1982, has had a profound effect on the political, legal and social fabric of Canada. Perhaps only second to the inclusion of the Canadian Charter of Rights and Freedoms, the express recognition and affirmation that the existing aboriginal and treaty rights of the Indian, Inuit and Metis Peoples of Canada are part of the supreme law of the land through ss. 35(1) and 52(1) of the Constitution Act, 1982 has created a fundamental shift in attitudes and expectations on the part of both Aboriginal peoples and non-Aboriginal Canadians. Despite its relative maturity after twenty-two years, surprisingly little progress has been made in identifying what this recognition entails, or about the political geography of Aboriginal peoples, whether in the aggregate or of any one of the three peoples specifically mentioned in s. 35(2). This lack of development is particularly disturbing given the considerable efforts invested by so many people in pushing the infant constitutional baby into adulthood at an accelerated rate. The stunted development in the political recognition of collective identities for Metis, as well as for First Nations, is cause for considerable concern. This drawn out transition appears particularly problematic for the Metis. They have received the least focus from non-Aboriginal governments to date in constitutional efforts, Royal Commission on Aboriginal Peoples recommendations, and especially in tangible efforts to reach agreements on self-government. This article reviews the main contours of the challenge to Metis identities, drawing on a range of cases reflecting three broad relational contexts. First, it examines the treaty/scrip relationship - prominent from 1870 to 1929 in the numbered Treaties from #1-11. Second, it explores the same issue of Metis/Indian boundaries and collective identities in relation to non-scrip areas. Finally, it assesses the relationship in aboriginal title regions. The essay offers a set of organizing principles to aid what must increasingly become a legal-political process of reconciliation in the near future. In doing so, it stresses the need for a coordinated and national process of redress - and rectification - in relation to the identity regimes that will, and must, apply in relation to Metis, First Nations and, in some cases, to the Inuit.

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