Metis Aboriginal Rights: Four Legal Doctrines

Constitutional Forum / Forum constitutionnel

Section 35(2) of the Constitution Act, 1982 refers to “the Métis people” as one of the Aboriginal peoples of Canada whose existing Aboriginal and treaty rights are guaranteed by section 35(1).1 The subsequent First Ministers Conference on Aboriginal Constitutional Reform in the 1980s and the Charlottetown Accord in 1992 proved inadequate to the task of addressing the substantive content of these constitutional provisions. The unenviable task of defining a people and their rights has now fallen to the courts. The challenge facing them is the hard case of Canadian Aboriginal law.

A critical commentary on the Powley case at the Ont Court of Appeal level. This case was appealed and decided later in the Supreme Court of Canada. The author is critical of the judicial approach to the issue of identifying the Aboriginal peoples whose rights are recognized and protected by the law of the constitution of Canada.

An examination of the issue of defining 'the Metis people' in s.35 of Canada's Constitution Act 1982, including analysis of current Metis organisations' membership codes, and an argument for designing policy for just relations between Canada and all Aboriginal peoples.

Aboriginal policy studies, 2017

The Canadian state has constantly been faced with a paradox: differentiated rights and regulations required it to define the boundaries of the invented category "Indian," yet it was never able to do so satisfactorily. The existence of mixed-ancestry and Métis people disrupted its seemingly clear categories of "Indian" and "White." This thesis asks three central research questions: how did the Canadian state understand the category they called "half breeds;" what cultural and intellectual ideas informed these notions; and what was their impact? There was no single meaning or understanding of the term "Half Breed," but it was in fact characterized by inconsistency, ambiguity, contradiction, and confusion. There were two significant opposing forces at play: 1) the need to consolidate the power of the emerging state, which usually meant grouping the Métis and people of mixed ancestry in with “Indians” in order to better control them, and 2) the desire to save money, which usually meant separating out “half breeds” as a way of reducing the number of status Indians (to minimize the scope of the state’s fiscal responsibilities). The Métis presented themselves as a free “civilized” Indigenous People, but for the government, the term "half breed" was most useful as a floating signifier, with no stable meaning. In an era of increasing state rationalization, the sliding signifier allowed for flexibility in otherwise rigid laws and policy, aiding the state in navigating between its often-conflicting goals. Only in a few instances did the state recognize the Métis as a distinct People. Because of discrimination and the lack of official recognition, many Métis people were dispossessed and hid their heritage. On the other hand, this very ambiguity could provide a degree of freedom, and Métis today are working to define themselves as a distinct people and to fight for their inherent Indigenous rights.

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.

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.

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.

Osgoode Hall Law Journal, 2016

To predict what is on the horizon of the Métis legal landscape, we can look to jurisprudence on First Nations’ rights, given that Métis rights cases are typically ten to fifteen years behind those of First Nations. With the release of the Supreme Court of Canada’s decision in Tsilhqot’in, the next big issue in Métis law may be Métis title. Scholars have doubted the ability of Métis to establish Aboriginal title in Canada for two reasons: first, Métis were too mobile, and second, Métis were too immobile. This paper critically analyzes these positions and argues that the case for Métis title in Canada is a strong one. As such, governments in Canada would do well to focus on resolving outstanding Métis title claims.

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.