Exploring Legal Identity
If you are an avid news reader like myself, you may have come across an article or two discussing the rate at which the Indigenous population in Canada is currently growing. From 2006-2011, the Indigenous population in Canada grew by 56.8%, nearly four times faster than the non-Indigenous population. Part of the increase in the numbers is a result of individuals who are now comfortable enough to identify themselves as Indigenous- an indication of how changes in social factors, legislation and court rulings are beginning to have a positive impact.
Driving part of that growth is an expanding population of Métis in Canada which grew by 60.7% over the same time period- faster than any other Indigenous group. The term Métis, as it is found in s. 35 of the Constitution Act, 1982 does not encompass all individuals of mixed Indigenous and European descent, rather, it refers to a distinct group of people, who in addition to their mixed ancestry, “have developed their own customs, way of life, and group identity.” As discussed in yesterday's posting, the Supreme Court of Canada has said that the appropriate way to define Métis rights is to modify the Van der Peet test for Aboriginal rights. For the purpose of this blog, we will be exploring the first three factors in relation to discussing Métis identity.
The modified test, known as the Powley Test, sets out three broad factors to identify Métis rights holders: self-identification, ancestral connection to a historic Métis community and community acceptance.
Self-identification- Because Métis do not fall under the Indian Act, to identify as a Métis right holder, one must first self-identify as a member of a Métis community. As noted above, it is not enough to only self-identify, one must also prove an ancestral connection and have community acceptance.
Ancestral Connection-Métis right holders must have proof of an ancestral connection to a historical community.
Historical proof is evidence of an ancestor who had received a land grant or scrip under the Manitoba Act or the Dominion Lands Act. Alternatively, evidence that an ancestor was recognized as Métis in other government, church, or community records may also be acceptable. Once a Métis ancestor is identified in their genealogy, that individual passes on the Métis identity to their children, who pass it to their children, and so on.
Community Acceptance- In Powley, The Supreme Court said that “there must be proof of acceptance by the modern Métis community.” It is not enough to prove a genealogical connection to a historical Métis community. One must have a past and ongoing relationship with the community.
This week, we focused on the complexities surrounding Métis identity, Métis rights, and the damaging impacts of the issuance of scrip. The lack of recognition of Métis groups by the Canadian government throughout history has exacerbated issues within and between communities in relation to politics and representative authority. Nevertheless, last night, the Métis Nation of Alberta announced that its Constitution ratification vote passed, which is a very exciting next step toward Métis people exercising their inherent right to self-governance.
Until next time,
Team ReconciliACTION YEG
 “Indigenous Population Continues to grow and is much younger than the non-Indigenous population, although the pace of growth has slowed” (21 September 2022), online: Statistics Canada <https://www150.statcan.gc.ca/n1/daily-quotidien/220921/dq220921a-eng.htm>.  Peter Zimonjic, “Indigenous population hits 1.8M, growing at twice rate of non-Indigenous Canadians” (21 September 2022), online: CBC News <https://www.cbc.ca/news/politics/indigenous-housing-census-statscan-1.6589825>  Ibid.  “Métis Identity: Who are the Métis” (accessed on 1 December 2022), online: Métis Nation of Alberta <https://albertametis.com/metis-rights/metis-identification/#:~:text=Community%20acceptance-,SELF%2DIDENTIFICATION,to%20a%20historic%20M%C3%A9tis%20community> [Identity].  R v Van der Peet,  2 SCR 507.  Identity, supra note 4.  Indian Act, RSC 1985, c I-5. Ibid.  “Largest ratification by an Indigenous Nation in Canadian History ratifies Constitution for Métis Nation of Alberta” (1 December 2022), online: Yahoo! Finance <https://finance.yahoo.com/news/largest-ratification-indigenous-nation-canadian-033100438.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAABQ3ZgDRjn80Ep32yU6vQpSWDCgIZcWkHKBoZmPy7ZkAkBRjRTswCj48ia3LJ8CZp5Tp36uMtfxsgzj3I_4D8LR-NrH27nV9V0w8TQ0uKOwfo0N8S_MWiVToKLTsobkEHqjtdCAcAsNa8yNAzoHOO7uT0KwZDdmqnoY3lEpIXxg_>