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
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 t...
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ftyorkunivohls:oai:digitalcommons.osgoode.yorku.ca:ohlj-3513 2023-05-15T15:54:13+02:00 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 Madden, Jason 2020-07-20T07:00:00Z application/pdf https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/20 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3513&context=ohlj unknown Osgoode Digital Commons https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/20 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3513&context=ohlj http://creativecommons.org/licenses/by-nc-nd/4.0/ Osgoode Hall Law Journal Indigenous Indian and Aboriginal Law text 2020 ftyorkunivohls 2023-03-19T00:02:19Z 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 ... Text Chipewyan Fort Chipewyan York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons Canada Fort Chipewyan ENVELOPE(-111.121,-111.121,58.722,58.722) Indian |
institution |
Open Polar |
collection |
York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons |
op_collection_id |
ftyorkunivohls |
language |
unknown |
topic |
Indigenous Indian and Aboriginal Law |
spellingShingle |
Indigenous Indian and Aboriginal Law Madden, Jason 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 |
topic_facet |
Indigenous Indian and Aboriginal Law |
description |
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 ... |
format |
Text |
author |
Madden, Jason |
author_facet |
Madden, Jason |
author_sort |
Madden, Jason |
title |
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 |
title_short |
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 |
title_full |
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 |
title_fullStr |
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 |
title_full_unstemmed |
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 |
title_sort |
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 |
publisher |
Osgoode Digital Commons |
publishDate |
2020 |
url |
https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/20 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3513&context=ohlj |
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ENVELOPE(-111.121,-111.121,58.722,58.722) |
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Canada Fort Chipewyan Indian |
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Canada Fort Chipewyan Indian |
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Chipewyan Fort Chipewyan |
genre_facet |
Chipewyan Fort Chipewyan |
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Osgoode Hall Law Journal |
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https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/20 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3513&context=ohlj |
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http://creativecommons.org/licenses/by-nc-nd/4.0/ |
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