The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: 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. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal rights,” protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test...
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ftyorkunivohls:oai:digitalcommons.osgoode.yorku.ca:ohlj-3589 2023-08-15T12:40:56+02:00 The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta Madden, Jason 2021-01-14T08:00:00Z application/pdf https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6 https://doi.org/10.60082/2817-5069.3589 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3589/viewcontent/uc.pdf unknown Osgoode Digital Commons https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6 doi:10.60082/2817-5069.3589 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3589/viewcontent/uc.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ Osgoode Hall Law Journal Law text 2021 ftyorkunivohls https://doi.org/10.60082/2817-5069.3589 2023-07-22T23:05:22Z In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal 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 seventeen 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 Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 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 potential to see the two ... Text Chipewyan Fort Chipewyan Metis York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons Canada Fort Chipewyan ENVELOPE(-111.121,-111.121,58.722,58.722) Osgoode Hall Law Journal 57 1 195 229 |
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York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons |
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ftyorkunivohls |
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Law |
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Law Madden, Jason The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
topic_facet |
Law |
description |
In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal 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 seventeen 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 Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 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 potential to see the two ... |
format |
Text |
author |
Madden, Jason |
author_facet |
Madden, Jason |
author_sort |
Madden, Jason |
title |
The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
title_short |
The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
title_full |
The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
title_fullStr |
The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
title_full_unstemmed |
The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta |
title_sort |
re-emergence of previously slayed metis rights-denial dragons: the dangers and duplicity in fort chipewyan métis nation of alberta local #125 v alberta |
publisher |
Osgoode Digital Commons |
publishDate |
2021 |
url |
https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6 https://doi.org/10.60082/2817-5069.3589 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3589/viewcontent/uc.pdf |
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ENVELOPE(-111.121,-111.121,58.722,58.722) |
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Canada Fort Chipewyan |
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Canada Fort Chipewyan |
genre |
Chipewyan Fort Chipewyan Metis |
genre_facet |
Chipewyan Fort Chipewyan Metis |
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Osgoode Hall Law Journal |
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https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6 doi:10.60082/2817-5069.3589 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3589/viewcontent/uc.pdf |
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http://creativecommons.org/licenses/by-nc-nd/4.0/ |
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https://doi.org/10.60082/2817-5069.3589 |
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Osgoode Hall Law Journal |
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57 |
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1 |
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195 |
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229 |
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