Métis rights: beyond debate

Insider: Tom Isaac

Lawyer Tom Isaac: "There should be no more debate whether the Métis should have Aboriginal rights. It has been ruled on by the highest courts in the land"

Who Tom Isaac, Vancouver-based partner at Cassels Brock & Blackwell, is a nationally recognized authority in Aboriginal law, advising business and government clients on Aboriginal legal matters and constitutional issues.

Involvement In June 2015, Isaac was asked by the federal Minister of Indigenous and Northern Affairs to prepare a report with recommendations on how the government could best advance the cause of reconciliation with Canada’s Métis Nation, one of three identified Aboriginal peoples in Section 35 of the Constitution Act, 1982. Isaac met with Métis leaders across the country, other institutions and organizations and produced a report that was “welcomed” by the current minister, Carolyn Bennett, in July. Of the report’s 17 recommendations, four directly affect industry.

Listed What was your mandate?

Tom Isaac It was twofold. I was asked to develop a framework for dialogue on Section 35 rights. I was also directed to engage with the Manitoba Métis Federation in response to the Supreme Court’s 2013 ruling [in Manitoba Métis Federation et al. v. Canada] that the federal government had breached its honour to the Crown by failing to implement a land grant provision set out in the Manitoba Act of 1870. The government wanted my advice on the best way to implement that declaration.

Listed What should happen first?

Tom Isaac Governments across the country need to become educated about the Métis. It really struck me that when it came to the Métis question these otherwise very professional and intelligent public servants struggled. And it wasn’t just the Canadian federal government. I saw it with some of the provinces as well. With the Métis, governments have just tried to pass the hot potato. I saw evidence of it everywhere. There should be no more debate whether the Métis should have Aboriginal rights. It has been ruled on by the highest courts in the land—the honour of the Crown applies equally to First Nations, Inuit and Métis.

Listed Why has there been a lack of recognition of Métis rights in Canadian history?

Tom Isaac There was a much clearer lexicon describing First Nations and Inuit. The Métis have struggled with identity both at law and to some extent in the broader socioeconomic sense. Part of that has to do with the lack of direct government intervention. First Nations had the Indian Act for 125 years. It was clear who was a member of a First Nation and who wasn’t. The Métis didn’t have the benefit of a clear legal definition of who was Métis. In a sense they have been a forgotten people. Part of my message was that must change and not just because it might be the right thing to do. From a purely legal perspective there is no doubt.

Listed Is there now a clear definition of who is Métis?

Tom Isaac With some Métis there is no question that a group represents Section 35 rights holders. There may be other cases where it is not as straightforward. So it adds a level of complexity and subjectivity. However, just because something is difficult is no excuse. It’s not in the public interest to try to sweep things under the rug.

Listed Do the Métis have unresolved land claims?

Tom Isaac There are a number of outstanding Métis land claims. If you have a project in Saskatchewan or Manitoba or Alberta or Ontario you’re consulting with Métis. And they can assert the same rights as First Nations in many respects.

Listed What underlying message did you want to convey with your recommendations?

Tom Isaac I tried to articulate that the Métis are distinct Aboriginal peoples and different from First Nations and Inuit, but in terms of legal protection and rights they are no different. We have three Aboriginal peoples and in the past the Government of Canada has focused on just two of the three.

I believe there should be a comprehensive review of existing federal programs and services available to indigenous peoples as well as all future federal initiatives to ensure they deal with the Métis distinctly and equitably. I also believe that First Nations and Métis need to sort out how they are going to get along with one another instead of looking to government to solve these issues.

Listed Why is this an important issue for industry?

Tom Isaac There is a real need for reconciliation because it speaks to stability and predictability of regulatory mechanisms on the ground. Businesses have a strong interest to ensure the Crown carries out the duty to consult adequately, because improper consultation can negatively impact environmental assessments and other government and regulatory approvals.

Interview by Kerry Banks

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