Métis self-government in Canada is a non-starter

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Appeared in the Globe and Mail, September 12, 2017

The Liberal electoral strategy in the 2015 campaign included striking promises to attract the aboriginal vote. Thus Justin Trudeau pledged to negotiate self-government and land-claims with the “Métis Nation.” Early in 2017, the start of negotiations was announced between the federal government and the Alberta, Manitoba and Ontario provincial affiliates of the Métis National Council. Politicians are generally applauded for keeping promises, but this one has great potential for mischief.

Métis self-government in any large-scale, meaningful sense is a non-starter. Self-government requires territorial concentration of the sort that allows First Nations governments to exist on Indian reserves. But the Métis live all over Canada and are not likely to leave Edmonton, Saskatoon and Winnipeg to set up remote self-governing enclaves.

Métis land claims are another fiction, for which there is no principled constitutional basis. Canadian courts have never found anything fundamentally wrong with the distribution of land and scrip to the Métis that occurred in the nineteenth century. In Manitoba Metis Federation v. Canada (disclosure: I was an expert witness for the Crown), the Supreme Court of Canada criticized the distribution of land in the original postage-stamp province of Manitoba for being too slow and laden with mistakes; but it did not order remedial action, nor proclaim a Métis aboriginal title to land, nor discover a federal fiduciary duty for Métis lands. In the absence of a jurisprudential justification, a settlement of contemporary Métis land claims would be merely a give-away to build the Liberals’ political coalition.

The biggest of all problems is demography. The Métis National Council and its provincial affiliates claim to represent the descendants of the historic Métis of the fur trade. These were mixed-race people who worked for the Hudson’s Bay Company in what is now northern Ontario, the three Prairie provinces and the Northwest Territories. They have many descendants today, but they have also continued to intermarry with other races and ethnic groups. Marriages since fur trade days have given rise to new generations of partly indigenous ancestry. Striking a deal limited to the descendants of the fur trade Métis will prove to be impossible.

The self-identified Métis are one of the fastest growing groups in Canada, according to the census. They increased from 179,000 in 1996 to 418,000 in 2011. The explosive growth is due to what demographers call “ethnic mobility,” i.e., people changing the labels they give themselves. And behind the Métis are more than 200,000 self-identified non-status Indians who could plausibly claim to be Métis if they saw some financial incentive in it. There is, in other words, a pool of hundreds of thousands of people who may be drawn to seek official Métis status if these negotiations create a financial payoff to do so. “Build it, and they will come,” as the saying goes.

If the government negotiates an agreement with Métis associations conferring tangible benefits upon Métis people, it will then have to confront the question of who is eligible for those benefits. There will probably have to be something like a Métis Registry, similar in principle to the Indian Registry, which is an endless source of litigation. Métis associations already maintain so-called “citizenship” registries, but the government will have to be involved if public money is to be distributed. Do we really want government maintaining more of these quasi-racial lists?

When the federal government recognized the landless Qalipu Mi’kmaq First Nation in Newfoundland, it expected about 10,000 applications for membership. In the event, there were over 100,000 applications, about 20 per cent of the province’s population. The biggest financial draw was undoubtedly the Non-Insured Health Benefits plan available to everyone on the Indian Registry. Now more than 80,000 applicants have been rejected, and more litigation is expected. Métis negotiations could produce a rerun on a much bigger scale.

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