Rethinking the Doctrine of Aboriginal Rights: The Métis Cases

The 2003 Powley judicial discovery and recognition of a new “Métis” community far from the Métis Nation homeland usurped the historic prerogative of the executive to recognize a new Aboriginal people and is not warranted by section 35 of the Constitution Act, 1982 which contemplates political negotiations. The invention of a distinct test for proof of Métis rights was unnecessary and created doctrinal uncertainty and unfairness. This article reflects on changes to Aboriginal rights doctrine that would limit the judicial role to the determination of the local rights of local communities, while recognizing that the determination of national interests and rights ought to be left to constitutionally-mandated negotiations between Canada and each Aboriginal nation or people. A fair doctrine would adopt one date instead of the current three dates for proof of the various rights of any and all the Aboriginal peoples, without regard to their particular self-naming practices