Métis Women and Aboriginal Self-Governance: Entrenching Inequality Through the Devolution of Discrimination

Posted 2002-02-17 by Kathleen A. Lahey | Jurisfemme Publications – Volume 21, No. 1, Winter 2002

Like Inuit, status Indian, and non-status women, many Métis women face extreme and lifelong poverty, labour market discrimination, and tremendous barriers to education, political representation, health resources, and other social programming. Métis women also experience high rates of unemployment. These forms of inequality are the legacy of generations of genocidal and deeply sexist state policies that have affected all Aboriginal peoples.

The manner of the federal government's devolution of its constitutional responsibilities, in a purported move toward Aboriginal self-governance, is a less visible cause of the disadvantaging of Métis women. In a series of program-specific devolution contracts that date back to the early 1990s, the federal government has been handing over funding and program authority to selected Aboriginal groups that it considers to be representative of the main sectors of the Aboriginal population. Not surprisingly, these groups -- the Assembly of First Nations (AFN), the Métis National Council (MNC), and the Inuit Tapirisat (ITC) -- are all male-dominated, and are often hostile to women's issues, women's interests, and even to women leaders themselves.

The long-term impact of this sexist model of self-governance is largely hidden by what appears to be increased acknowledgment that Aboriginal women as a class are subject to severe forms of disadvantage, and that Inuit, Métis, and status and non-status Indian women each face very different obstacles due to their distinct histories and identities. As early as 1994, Mr. Justice Sopinka of the Supreme Court of Canada bluntly stated that "Aboriginal women... face racial and sexual discrimination which impose serious hurdles to their equality" (Native Women's Association of Canada v. Canada (1994), 119 D. L. R. (4 th ) 224).

Even though the federal government has historically taken the position that "Métis" peoples do not fall within its sphere of responsibility because they are not "Indian" within the meaning of section 91( 24) of the British North America Act, 1867 (the courts have held that Inuit peoples are), section 35 of the Constitution Act, 1982 declares unequivocally that Métis, Indian, and Inuit peoples are all "Aboriginal peoples." The groundbreaking report of the Royal Commission on Aboriginal Peoples (RCAP), of which Madam Justice Bertha Wilson was a member, documented obstacles faced by Métis, Inuit, and Indian women in detail. Subsequent studies and consultations carried out by Status of Women Canada, the Department of Justice, and Health Canada have taken, as their starting point, the federal commitment to redressing the plight of Aboriginal women by addressing the distinct needs of Indian, Métis, and Inuit women.

To date, it has become clear that the rhetoric around recognizing the unique and distinct needs of Métis, Indian, and Inuit women has had almost no impact whatsoever on the model of Aboriginal self-governance that has been evolving since the early 1990s. Although the Métis National Council of Women (MNCW) has been actively representing the needs and interests of Métis women since it was formed in 1992, every time the federal government has begun the process of devolving another area of federal programming to Aboriginal groups through funding and management contracts, two things have happened: the MNC has refused to agree to enter into negotiations with the government if the MNCW is permitted to participate, and the government has refused to permit the MNCW to participate in the discussions, negotiations, contracts, management, and contract administration.

The areas of federal programming that have already been affected by this restructuring and devolution include health and healing, justice, job training and employment creation, the Riel reconciliation talks, negotiations over the directions to be taken in developing the government's "community-based" model of "self-governance," redress of past discrimination, language and heritage, and renewed constitutional discussions. As each new area of devolution is identified, and devolution agreements are generated, Métis women are pushed further away from the so-called "representative" structures with which the federal government claims it is dealing. They fall further behind in the development of the management, administrative, and leadership capacities that groups must show in order to be permitted to "transition" to "self-governance."

Both Métis and Inuit women are at a particular disadvantage in this process. In the early 1990s, the Native Women's Association of Canada (NWAC) sued the federal government for the right to participate in the funding and participation agreements the government had struck with the AFN, ITC, and MNC that enabled these groups to "represent" Aboriginal communities in the process of constitutional renewal. Although NWAC failed to persuade the Supreme Court of Canada to order the government to include NWAC in these funding arrangements, it did manage to establish that excluding Aboriginal women from such negotiations was at least litigable (Native Women's Association of Canada v. Canada). If the Department of Justice had not succeeded in delaying the appeal until after the actual constitutional process had ended, NWAC might have established even stronger legal doctrine on this issues.

As a result of this litigation, now NWAC is usually invited to participate in devolution discussions, negotiations, and, to a limited extent, funding agreements in some areas. Ironically, the federal government is now saying that to the extent that the MNC does not perhaps represent the interests of all Métis women and men, NWAC, and maybe even the Congress of Aboriginal Peoples (which also receives small funding contracts in some situations), ensure additional representation for Métis women.

Beginning in the late 1990s, both the MNCW and Pauktuutit, which represents Inuit women, began to initiate similar Charter challenges to the devolution model of self-governance. These proceedings have challenged devolution agreements from which the MNCW and Pauktuutit have been excluded in the areas of employment and job training, constitutional, and health. So far, these proceedings have been met with protracted procedural challenges. This procedural wrangling has made it possible for the federal government to claim, as it did in the NWAC constitutional challenge, that failure to get to the hearing stage during the life of the funding contract (which can often be as short as one to three years) renders such challenges moot (Métis National Council of Women v. Canada (Attorney General), [2000] F. C. J. no. 196 (T. D.), aff 'd [2001] F. C. J. No. 1761).

There is little doubt that when these Charter challenges can actually be heard by the courts, the short-term and long-term effects of devolving government funding and authority to male-dominated and sexist non-governmental groups will be found to be discriminatory. But in the meantime, the process of exposing and litigating the devolution of discrimination has become yet another way in which the historical disadvantaging of Métis women is being preserved for the future even as the essential contours of Aboriginal governance are undergoing radical transformation.

For more information on this area, please contact Sheila Genialle, president of the MNCW at info@ metiswoman. ca, or Kathleen Lahey, counsel for MNCW at kal2@ qsilver. queensu. ca

Kathy Lahey is a professor at Queen's Faculty of Law, and acts for the MNCW in its Charter litigation against the federal government.

Cites: Native Women's Association of Canada v. Canada (1994), 119 D. L. R. (4 th ) 224, per Sopinka J., McLachlin and L'Heureux-Dubé JJ. concurring as to result.

Métis National Council of Women v. Canada (Attorney General). [2001] F. C. J. No. 1761, 2001 FCA 357 (C. A.) (Court File No. A-209-01, November 21, 2001), per Stone, Evans, and Malone JJ. A., aff 'g [2000] F. C. J. no. 196 (T. D.) (Court File No. T-1804-98, November 28, 2000), per Pelletier J.