Metis Constitutional Law Issues

Alberta Law Review, 2004

Steve Powley and his son, both members ofa Metis community near Sault Ste. Marie, were charged with hunting a moose without a licence and with knowingly possessing game hunted in contravention of Ontario's Game and Fish Act. 1 The Powleys were acquitted at trial and at every subsequent appeal, 2 up to and including the Supreme Court of Canada. Ruling for the first time on the issue of Metis rights under s. 35 of the Constitution Act, /982, 3 the Supreme Court recognized that the Powleys, as Metis, had a constitutionally protected Met is Aboriginal right to hunt for food. 4 However, the decision has far more importance beyond the recognition of subsistence rights of the Metis in and around Sault Ste. Marie. The unanimous decision of the Court suggests that provinces which ignore the existence ofMetis hunting rights do not have a valid legislative objective to infringe this right, or which fail to consult with affected Metis rights holders on issues of accommodation are in breach of the Canadian constitution. When considered with the decision of the Supreme Court of Canada in R. v. Blais,' released on the same day, Powley also raises questions about provincial jurisdiction to regulate in an area which, if Metis peoples or their Aboriginal rights fall withins. 91 (24) of the Constitution Act, I 867, 6 may be of core federal jurisdiction. Acknowledging for the first time that Metis are a distinct Aboriginal people with rights analogous to First Nation and Inuit peoples, the Supreme Court elaborates a new set of legal principles specific to the assertion of Metis Aboriginal rights based in historic customs, traditions, and practices of distinctive Metis communities. Building on the framework for analysis developed in the lower courts, the Supreme Court modifies precedent on site-specific Aboriginal harvesting rights to accommodate the unique historical circumstance of the Metis in Sault Ste. Marie. The Court also pronounces on fundamental questions, such as the historical foundations of Metis rights, identification of historic and contemporary rights-bearing Metis communities, Catherine Bell, Professor of Law, University of Alberta and Clayton Leonard, student-at-law. The authors gratefully acknowledge the helpful comments provided by Joseph Magnet on jurisdictional issues raised in this paper.

This article was written from a lecture in which the author summarized his arguments in his book Manitoba's Metis Settlement Scheme of 1870 (Saskatoon, Native Law Centre 1991). The book is the only published constitutional analysis of s 31 of the Manitoba Act which was at issue in the Dumont sub nom Manitoba Metis Federation case decided in the Supreme Court of Canada. The author presents a radically different interpretation of the history and the text of s.31 from the SCC decision.

2017

This paper argues that aboriginal rights in Canada have been greatly affected by 19 century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 of the Constitution Act 1982 are more restricted than the text might imply.

aboriginal policy studies, 2011

The United Nations Declaration on the Rights of Indigenous Peoples (2007) implicitly recognizes urban Indigenous self-determination and acknowledges collective and individual Indigenous rights. This essay examines the tensions associated with the Declaration’s acknowledged recognition of Indigenous collective self-determination. The purpose is to expose the complexities inherent when attempting to reconcile the Declaration with First Nations and urban Aboriginal political aspirations, Canadian court decisions, federal Indian policies, and the protective mechanisms of the Canadian Charter of Rights and Freedoms. The author cautions that additional studies are required probing these and other issues prior to First Nation, Aboriginal, and Canadian political leaders venturing forward in their desires to implement and activate the Declaration’s provisions to promote Indigenous community development.

This piece examines the Supreme Court of Canada's Daniels decision through the lens of Métis legal orders and human-fish relations. It offers watershed-level analysis of Métis relationships and responsibilities through space and time. In order to meet the Truth and Reconciliation Commission's Call to Action number 45, which acknowledges the need for Canada to reconcile Indigenous legal orders with Cana-dian law, courts must stop defining the Métis through outside discourses of who they are and how they govern themselves. Instead, there must be a shift towards acknowledging complex and rich Métis legal orders. Further, it is important for legal scholars to acknowledge how specific aspects of Métis legal orders are co-constituted through relationships with, and responsibilities to, more-than-human beings such as fish, and that these relationships are bound to and enacted through ongoing labour between humans and fish in particular waterways throughout the prairies. Scholars and policy-makers alike must de-anthropocentrize understand-ings of how Métis conceive of and govern their relationships to lands and waters. RÉSUMÉ Nous examinons dans cet article la décision Daniels de la Cour suprême du Canada depuis la perspective du système juridique métis et des relations humains-poissons. Nous proposons une analyse hydrographique des relations et des responsabilités métisses, dans l'espace et dans le temps. Afin d'accomplir le point 45 des appels à l'action de la Commission de vérité et de réconciliation, qui reconnaît la nécessité pour le Canada de concilier les affaires constitutionnelles et juridiques des peuples autochtones au droit canadien, les tribunaux doivent arrêter de définir les Métis selon des discours externes à propos de leur identité et de leur façon de gouverner. Au lieu de cela, un changement doit s'opérer pour reconnaître la complexité et la richesse de la structure juridique métisse. Il est par ailleurs important que les uni-versitaires dans le domaine du droit reconnaissent que certains aspects du système juridique métis sont co construits par des relations avec des êtres surhumains et par une responsabilité envers ces derniers. Ainsi, les relations avec les poissons, entre autres, sont à la fois enchâssées et réalisées par le travail continuel humains-poissons partout dans les cours d’eau des Prairies. La recherche et l’élaboration des politiques doivent en outre « désanthropocentrer » leurs approches pour comprendre la relation des Métis aux terres et eaux.

Anthropologica, 1998

BC STUDIES an anonymous letter (which has been call for Euro-Canadian accountcirculating around First Nations ability: his work is a valuable resource education for the past twenty years) for those who seek a comprehensive purportedly written by "the mother of overview of Canadian residential an Indian child." Miller's conclusions schools,

Supreme Court Law Review, 2004

treaty rights in the Constitution. 2 At the same time, several non-Aboriginal bodies were also calling for constitutional reform that included protection for Aboriginal peoples. By the fall of 1980, there was public support for the idea of entrenching Aboriginal rights in the Constitution. The Canadian Bar Association, the Pepin-Robarts Task Force on Canadian Unity, a Joint Senate-House of Commons Committee on the Constitution, and several church groups all called for the constitutional protection of Aboriginal rights. 3 The political debates in both the House of Commons and in the Senate calling for constitutional protection for Aboriginal peoples and their rights are illuminating. There was a consensus that the Aboriginal peoples of Canada had "old and difficult grievances" that required reconciliation. 4 The debates reflect a unanimous recognition that government had ancient legal obligations to Aboriginal peoples and that the relationship with the Crown and the practices of the past needed to change. The move to give the rights of Aboriginal peoples constitutional protection was clearly intended to be a substantive change in the relationship between Aboriginal peoples and the Crown. The constitutional debates reflect this and show that section 35 was to be "a turning point in the status of native peoples in this country", "a renewal of our commitment to the native peoples", an "historic recommendation of equality of constitutional standing of the Aboriginal peoples with other communities in Canada" and "a political watershed in the lives of the Aboriginal people in Canada". Finally, that including section 35 in the Constitution would mean that, "no government or individual will again 2 Note that these three groups represented the Indians, Inuit and Métis peoples of Canada in the constitutional negotiations of the late 1970s and early 1980s.

etd.ceu.hu

The thesis investigates the ways to improve Aboriginal representation in Canada's central legislature. Using the framework of M. Murphy's relational model of self-determination and D.

Vibrant, 2021

In 2014, the Supreme Court of Canada issued a landmark decision in Tsilhqot'in Nation v. British Columbia. In this decision, the Supreme Court recognised Aboriginal title to a specific territory for the first time, along with Aboriginal rights to hunt, trap, and engage in other practices. While international human rights law relating to Indigenous peoples, notably the United Nations Declaration on the Rights of Indigenous Peoples, was not directly relied upon in this decision, the subsequent negotiations and outcome documents have gradually included the UN Declaration into the discussion, in conjunction with the political and legal shift towards recognition and acceptance of it in Canada. By exploring the political and legal struggles of the Tsilhqot'in, particularly after the 2014 decision, this paper considers a growing space for the UN Declaration in defining the declared Aboriginal rights and title.

Revue d'études constitutionnelles, 2013

This paper explores how the recognition and protection of Indigenous cultural practices became one of the central ways in which courts use the Constitution Act, 1982 to recognize and protect Indigenous rights. It considers the Court’s 1996 ‘distinctive culture test’ as a response to issues about cultural identity and citizenship raised in the Canadian politics and scholarship in the 1970s and 1980s. Whereas serious challenges and risks can develop when judges attempt to assess the cultures of Indigenous people, these challenges are a conventional part of co-existence in diverse societies to which there are effective responses. These challenges ought to be viewed as ones that public institutions are obligated to address in order to develop just and fair relations between Indigenous peoples and the Canadian state. That they have not done so effectively is uncontested, but that they don’t have the capacity to do so, I argue, is mistaken and can be misleading in seeking a solution to pr...

The British North America Act, 1930 (the Natural Resources Transfer Agreements) marked the end of lengthy battle between the provincial governments of Saskatchewan, Alberta, and Manitoba and the federal government of Canada. Prior to 1930, the provincial governments did not have administrative control over their natural resources and were not constitutionally equal to the other Canadian provinces. One of the terms of the constitutionalized agreements provided that after the transfer, the provincial governments would undertake all of the federal governments’ continuing obligations to third parties. One of these obligations was the redemption of Métis scrip issued by the federal government to extinguish the Métis interest in the lands. The provinces initially refused to accept this obligation, which led to an extensive debate over the constitutional responsibility for Métis scrip. The author examines this debate in order to shed light on the nature and extent of the constitutional obligations that were owed to the Métis prior to their inclusion in section 35 of the Constitution Act, 1982.

2006

Through an examination of the Supreme Court of Canada’s decision in R. v. Powley (2003), I argue that the Canadian state plays a significant interpretive role in defining Métis identity within the Canadian public discourse. Further, the reactions to this decision by the Canadian public, Métis and otherwise, reveal the processes by which Métis and other Aboriginal persons continue to navigate cultural dispossession within the historical context of Canadian colonialism.