The Métis Flag
This flag is the primary flag flown by the Métis Nation today. With a blue background and white infinity symbol, it represents both the joining of two cultures, and the existence of a people forever. >>Read more
- Métis and the Law
- s. 35 of the Constitution Act, 1982
- R v Powley
- Daniels v Canada
- Manitoba Métis Federation v Canada
Hon. John Norquay, Premier of Manitoba 1880.
The Métis people have long advocated for themselves as a people, but it is only until recently that there has been clarification regarding Métis constitutional rights.
More information about these decisions and Métis rights, as highlighted in this section, can be found here.
A subject guide on Aboriginal law can be found here.
Section 35 of the Constitution Act, 1982 recognizes Métis rights:
"35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada."
R v Powley, 2003 SCC 43,  2 SCR 207
This case established a test for how the Van der Peet test for aboriginal rights, which are constitutionally guaranteed by s. 35(1), must be applied to Métis rights. The issue in this case centred on whether members of the Métis community have a constitutional aboriginal right to hunt for food in the area of Sault Ste. Marie. The Court held that:
- The Van der Peet test for aboriginal rights should be applied to Métis rights as well, but must be modified to accommodate the fact that the Métis people did not exist prior to European contact. The focus should "be on the period after a particular Métis community arose and before it came under the effective control of European laws and customs."
- The term "Métis" in section 35 of the Constitution Act, 1982 refers to "distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears."
- A Métis community can be defined as a "group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life."
The Court held that to verify a Métis claimant's membership in the relevant contemporary community, the claimant must:
- Self-identify as a member of the Métis community;
- Present evidence of an ancestral connection; and
- Demonstrate that he or she is accepted by the modern community
Daniels v Canada (Indian Affairs and Northern Development) 2016 SCC 12,  1 SCR 99
This case established that Métis and non-status Indians are "Indians" under s. 91(24) of the Constitution Act, 1867. As a result, this means that Métis relations now fall under federal jurisdiction along with other Aboriginal groups, not provincial jurisdiction as was commonly practiced before. This was the only declaration granted of the three sought in this case. The other two declarations that were sought but not granted were that the federal Crown owes a fiduciary duty to Métis and non-status Indians, and that Métis and non-status Indians have the right to be consulted and negotiated with. In regards to the one declaration granted, the Court held that:
- "Indians" is a term that has been long used to refer to all Indigenous peoples, including the Métis
- "Indians" in a constitutional context has "a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term 'aboriginal peoples of Canada' used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples." Therefore, it would be "constitutionally anomalous for the Métis to be the only aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24)."
- The determination of whether individuals or communities are Métis or non-status Indians are "Indians" under s. 91(24) is "a fact-driven question to be decided on a case-by-case basis in the future."
- In applying the Powley definition of Métis, the "criteria in Powley were developed specifically for the purposes of applying s. 35, which is about protecting historic community-held rights. Section 91(24) serves a very different constitutional purpose." Therefore, "there is no principled reason for presumptively and arbitrarily excluding certain Métis from Parliament's protective authority on the basis of the third criterion, a 'community acceptance' test."
Manitoba Métis Federation v Canada (Attorney General),  1 SCR 623, 2013 SCC 14
In this case, the Supreme Court of Canada determined that the federal government breached its obligation to implement the promises it made to the Métis people in the Manitoba Act, 1870. Specifically, section 31 of the Act set aside 1.4 million acres of land to be given to Métis children; this was one of the conditions of entry into Confederation for the now-province of Manitoba. The Court held that:
- The "honour of the Crown" is engaged by by "constitutional obligations to Aboriginal groups." Section 31 of the Manitoba Act is a constitutional obligation as it was "a promise made to the Métis people collectively, in recognition of their distinct community," therefore engaging the honour of the Crown.
- The honour of the Crown required the Crown to interpret s. 31 in a "purposive manner and to diligently pursue fulfillment of the purposes of the obligation," which was not done. Instead, the implementation was "ineffectual and inequitable."
As a result of this decision, the Manitoba Métis Federation lobbied the federal government to enter into land claims negotiations to compensate the Métis for lost lands and resources. In 2016, a Framework Agreement was signed between the Indigenous Affairs Minister, Carolyn Bennett, and the president of the Manitoba Métis Federation, David Chartrand. Negotiations for the financial settlement of the land and other aspects must still be negotiated between the parties, but it is a step towards reconciliation of these claims.
Report of the Royal Commission on Aboriginal Peoples
The Report of the Royal Commission on Aboriginal Peoples (RCAP) concerns government policy with respect to the original historical nations of this country. Those nations are important to Canada, and how Canada relates to them defines in large measure its sense of justice and its image in its own eyes and before the world. The RCAP was established by the Order in Council on August 26, 1991, and it submitted its report on October 1996.
- Last Updated: Sep 27, 2021 1:50 PM
- URL: https://library.ucalgary.ca/guides/metis
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