The Resilience of Métis Title: Rejecting Assumptions of Extinguishment for Métis Land Rights

The Crown long has disputed Métis title claims by contending that any previously existing Métis rights, including title, have been extinguished. We argue, however, that Métis rights, including title, remain unextinguished in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to April 17, 1982, and by constitutional amendment. When applied to the Métis homeland, we conclude that these means have not effectively extinguished all Métis rights and title. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title as set out by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia. Once the Métis have shown that their occupation of their traditional homeland was sufficient, continuous, and exclusive, the next step is to demonstrate that their title to land has not been extinguished. This chapter takes this next step, and thus further strengthens the argument in support of Métis title