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The Community Conundrum: Metis Critical Perspectives on the Application of R V Powley in British Columbia

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The Community Conundrum: Metis Critical Perspectives on the Application of R V Powley in British Columbia The Community Conundrum: Metis Critical Perspectives on the Application of R v Powley in British Columbia by Karen L. Sloan B.A., University of British Columbia, 1989 M.A., University of British Columbia, 1991 LL.B., University of Calgary, 1998 A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the Faculty of Law Karen L. Sloan, 2016 University of Victoria All rights reserved. This dissertation may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee The Community Conundrum: Metis Critical Perspectives on the Application of R v Powley in British Columbia by Karen L. Sloan B.A., University of British Columbia, 1989 M.A., University of British Columbia, 1991 LL.B., University of Calgary, 1998 Supervisory Committee John Borrows, Faculty of Law Supervisor Hamar Foster, Faculty of Law Committee Member Jean Barman University of British Columbia Department of Educational Studies Additional Member iii Abstract Supervisory Committee John Borrows, Faculty of Law Supervisor Hamar Foster, Faculty of Law Committee Member Jean Barman University of British Columbia Department of Educational Studies Additional Member In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis iv community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities. v Table of Contents Supervisory Committee..................................................................................................................ii Abstract.........................................................................................................................................iii Table of Contents..........................................................................................................................v Acknowledgements.......................................................................................................................xi Dedication....................................................................................................................................xiv THE GIFT.........................................................................................................................................1 DISSERTATION SUMMARY.............................................................................................................3 INTRODUCTION TO PARTICIPANTS..............................................................................................13 Chapter 1: ADDRESSING THE “COMMUNITY CONUNDRUM”...............................................25 INTRODUCTION: THE NATURE OF THE COMMUNITY CONUNDRUM...................................25 PART 1 METIS RIGHTS IN BC: THE INTERSECTION OF LAW AND HISTORY.......................27 PART 2 A METIS RESPONSE TO THE COMMUNITY CONUNDRUM....................................39 Seeing the Community Conundrum through a New Metis Lens: Metis Critical Legal Theory....................................................................................39 PART 3 OUTLINE OF CHAPTERS AND PARTS......................................................................45 Introductory Sections............................................................................................46 Dissertation Summary and Introduction to Participants...........................46 Chapter 1: Description of the Community Conundrum and Proposal of Need for MetCrit............................................46 Chapter 2: Background to the Community Conundrum......................46 Chapter 3: The Legal Genealogy of the Community Conundrum........47 Approach Section..................................................................................................47 Chapter 4: Research Process and Concerns.........................................47 Analysis Sections...................................................................................................47 Chapter 5: Metis Responses to the Community Conundrum...............48 Chapter 6: Missing History: Historiography, Evidence and the Community Conundrum....................................................48 Chapter 7: Missing Metis Perspectives: MetCrit as a Response to the Community Conundrum..............................................48 Chapter 8: A Proto Met-Crit Analysis of Willison................................49 Reflective Sections................................................................................................50 Chapter 9: In Full View: Metis Perspectives on Resolving the Community Conundrum....................................................50 Chapter 10: MetCrit beyond Conundrums............................................50 vi MISSING IN FULL VIEW.................................................................................................................51 Chapter 2: HISTORY, TERRITORY AND COMMUNITY CONSTRUCTION: BACKGROUND TO THE COMMUNITY CONUNDRUM..........................................56 INTRODUCTION: MULTIPLICITY AND ABSENCE....................................................................56 PART 1 COMPLEX AND CONTENTIOUS: AN OVERVIEW OF DEBATES SURROUNDING METIS HISTORY, TERRITORY AND COMMUNITY...................................................57 An Introduction to Metis History: Complexity and Distinctiveness.....................57 The Metis: Many Histories, Territories, Community Identities............................59 BC Complexities....................................................................................................72 Metis Territories...................................................................................................86 PART 2 INTERNAL AND EXTERNAL FACTORS AFFECTING PERCEPTIONS OF METIS COMMUNITIES......................................................................................................92 Spectra of Metis Identities and Constructed Splits...............................................92 Racism, Conflict and Community Construction....................................................99 Academic Conversations and Community Construction.....................................103 PART 3 REFLECTIONS ON COMMUNITY CONSTRUCTION...............................................105 BC Context: The Missing Metis?.........................................................................107 CONCLUDING THOUGHTS...........................................................................................................110 A COMMUNITY DIALOGUE.........................................................................................................112 Chapter 3: THE LEGAL GENEALOGY OF THE COMMUNITY CONUNDRUM..........................114 INTRODUCTION...........................................................................................................................114 PART 1 POWLEY AND ITS APPLICATION TO OTHER METIS RIGHTS CASES......................117 PART 2 THE POWLEY CASE AND TESTS FOR “COMMUNITY”...........................................121 Application of Pre-SCC Powley Cases to Pre-Willison Cases in BC......................124 PART 2: ORIGINS OF POWLEY DEFINITION OF “METIS COMMUNITY”.............................128 PART 3 THE SIGNIFICANCE OF THE POWLEY CASE AND TESTS FOR “COMMUNITY”......138 Why Powley Didn’t Work for Greg Willison........................................................143 Kelly Lake: A “Real” Historic Metis Community in BC?......................................151 CONCLUDING THOUGHTS...........................................................................................................152 TELLING STORIES........................................................................................................................153 Chapter 4: RESEARCH PROCESS AND CONCERNS................................................................155 INTRODUCTION...........................................................................................................................155 CHAPTER OUTLINE......................................................................................................................157 PART 1 SITUATING MY RESEARCH...................................................................................158 Indigenous Research Methodologies: An Overview..........................................158 What Is Indigenous Research Theory and Practice?...........................................159
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