The Re-Emergence of One of the Previously Slayed Métis Rights-Denial Dragons: A Comment on the Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v. Alberta

• Main Author: Madden, Jason
• Format: Text
• Language: unknown
• Published: Osgoode Digital Commons 2020
• Subjects: Indigenous; Indian; and Aboriginal Law; Canada; Fort Chipewyan; Chipewyan
• Online Access: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/20; https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3513&context=ohlj

In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R. v. Powley, 2003 SCC 43. Powley was—and remains—the high court’s only consideration of Métis rights, as ‘aboriginal’ rights, protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test for the establishment of Métis section 35 rights, Powley slayed a multitude of Métis rights denial dragons that had emerged over the generations, including, two of the dragons most often relied on by governments: (1) that difficulties in identifying Métis rights-holders, and, (2) competing Métis representation claims made Crown inaction in relation to Métis rights justifiable. Instead of accepting these arguments, the SCC in Powley recognized a positive Crown duty to negotiate with the Métis. The author, who is a Métis lawyer that has been involved in much of the Métis rights litigation and negotiations that have occurred over the last 17 years, argues that Powley and this duty have been effectively leveraged by rights-bearing Métis communities from Ontario westward to secure several significant negotiated agreements as well as keep most of the slayed Métis rights denial dragons at bay. This article goes on to review a disconcerting 2016 decision of the Alberta Court of Queen’s Bench on Métis consultation, which, if applied further, has the potential to re-invigorate these most duplicitous dragons. In in Fort Chipewyan Métis Nation of Alberta Local #125 v. Alberta, 2016 ABQB 713, while the trial judge recognized that Métis harvesting rights had been accommodated in the Fort Chipewyan area, the court accepted the Alberta government’s arguments that difficulty in identifying the ‘proper rights-holder’ and the potential of competing Métis claims were justifications for Crown inaction and its position of consulting with no Métis whatsoever. The author argues that the court’s flawed reasoning in Fort Chipewyan turns Powley and the Crown’s positive duties owing to the Métis on their head as well as has the ...