When the Metis were included in section 35 of the Constitution Act 1982, Metis leaders
were euphoric. With the constitutional recognition of the Metis as on of the three
Aboriginal peoples of Canada and the protection of Metis Aboriginal rights in section 35
of the Constitution Act, 1982, it was thought that the battle for recognition was over.
Surely the next step would be the federal government's recognition of its jurisdiction for
the Metis and the recognition by the courts and the Crown that Metis have Aboriginal
rights that can be exercised along with those of the Indians and the Inuit.
But Metis expectations were short lived. More than twenty years later, Canada refuses to
recognize it has legislative jurisdiction for the Metis, arguing that Metis are a provincial
legislative responsibility. And both the federal and provincial governments have failed to
conduct themselves in keeping with the principle of the "honour of the Crown" because
they consistently deny that Metis have Aboriginal rights. Whenever Metis harvesters
attempt to exercise their rights, the Crown is there as a game warden, prosecutor or jailor,
but never as a fiduciary to maintain the Crown's honour. The Crown often argues that
without a clear understanding of Metis definition and identity, Metis Aboriginal rights
would be too difficult to administer. More importantly, the Crown has argued that if
Aboriginal rights are linked with pre-contact customs practices and traditions, the Metis
could not possibly meet the Aboriginal rights test that has been established by the courts.
But then came the decision in R. v. Powley making it clear that the Metis are a distinct
people, separate from the Indians and the Inuit, with Aboriginal rights flowing from the
customs, practices and traditions of Metis communities that emerged subsequent to the
period of first contact, and prior to the exercise of "effective control" by the Crown. The
Supreme Court of Canada found in favor of Powley by using a "purposive" approach in
the analysis of Metis Aboriginal rights and by not mechanically applying the section 35
justification analysis. The purpose of this thesis is to develop a core set of principles that
can be used as a framework for a purposive analysis of Metis Aboriginal rights. The
principles support the propositions that: Metis fall within the exclusive legislative
jurisdiction of the federal government; that Metis have Aboriginal rights that are
recognized and affirmed by section 35; and, that Metis Aboriginal rights are immunized
from the application of provincial wildlife regulations because of the doctrine of interjurisdictional
immunity. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/16200 |
| Date | 05 1900 |
| Creators | Stevenson, Mark L. |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 7099907 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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