Métis Case Law Summary
Aboriginal rights lawyer, Jean Teillet, has provided a comprehensive overview of Métis case law in Canada in her report titled Métis Law in Canada, which was first published in 1999. This document is the only comprehensive analysis of all modern Canadian Métis case law. The below text is an excerpt from the document intended to highlight the history of Métis recognition in Canada referencing s.32(2) of the Constitution Act, 1982 and Métis legal cases including Powley, Manitoba Métis Federation vs. Canada and Cunningham. To access the full document, please click here.
“1.1 The Métis of the Northwest are an aboriginal people
The Métis are one of the “aboriginal peoples of Canada” within the meaning of s. 35(2) of the Constitution Act, 1982. Section 35 reads as follows:
s. 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.
This definition is for the purposes of the Constitution Act. However, Métis are also aboriginal people for the purposes of the common law. As noted by the Manitoba Court of Appeal in Manitoba Métis Federation v. Canada, the inclusion of the Métis in s. 35 is the recognition, not the creation, of the Métis as an aboriginal people.2 The Supreme Court of Canada in Cunningham held that,
The Métis considered themselves as one of three Aboriginal groups in Canada, but this was not recognized until the Constitution Act, 1982. Unlike Indians, however, they enjoyed no land base from which to strengthen their identity and culture or govern themselves. Their aboriginality, in a word, was not legally acknowledged or protected … The history of the Métis is one of struggle for recognition of their unique identity as the mixed race descendants of Europeans and Indians. Caught between two larger identities and cultures, the Métis have struggled for more than two centuries for recognition of their own unique identity, culture and governance. The constitutional amendments of 1982 signal that that time has come for recognition of the Métis as a unique and distinct people.3
In Powley, the Supreme Court of Canada held that the Métis have “full status as distinctive rights-bearing peoples,” a characteristic they share with the Indian and Inuit peoples of Canada.4 Unfortunately, a Federal Court Trial Decision of early 2013, Daniels v. Canada,5 confuses the Métis definition clarity that has gradually been achieved in the Powley, Manitoba Métis Federation and Cunningham decisions. Daniels defines Métis as “a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status.” The Daniels decision ignores the Supreme Court of Canada findings that the Métis of the Northwest are a distinct aboriginal people and lumps Métis into a large group with non-status Indians.
When Canada adopted s. 35 into its Constitution Act in 1982, it was a unique constitutional enactment. Since then several countries have amended their constitutions to include recognition and protection of aboriginal (indigenous) peoples.6 Indeed, such constitutional recognition appears to be emerging as a customary international law norm. However, Canada’s constitution remains unique in one respect. It is still the only constitution in the world that recognizes a mixed-race culture, the Métis, as a rights-bearing aboriginal people.
The Métis are appropriately considered aboriginal for two main reasons. First, because they grew into a distinct culture and became a people in the Northwest prior to that territory becoming part of Canada. In that sense they pre-date Canada, not just as individuals who happened to be in that territory first, but as a collective living in, using and occupying the Northwest. Second, they were not the culture-bearers of European civilization in the Northwest. Their culture was a unique response to the land. While they engaged in some farming, they were highly mobile and were not primarily ‘settlers.’ Theirs was a creative mixing of Amer-Indian and Euro-Canadian customs, languages and traditions. Métis culture in the Northwest had many long years to evolve before the settlers arrived.”
Pape Salter Teillet LLP Barristers and Solicitors. (2013). Métis law in canada. Vancouver, British Columbia: Jean Teillet (Original work published in 1999)