- The Oxford Handbook of the Canadian Constitution
- Contributors
- Introduction
- Indigenous Constitutionalism: Pre-existing Legal Genealogies in Canada
- Constitutional Debates in French Canada, 1764–1774
- 1867: Confederation
- The British Legal Tradition in Canadian Constitutional Law
- The Crown in Canada
- The Executive, the Royal Prerogative, and the Constitution
- Political Institutions in Canada in a New Era
- Parliamentary Sovereignty in Canada
- The Supreme Court of Canada and Appointment of Judges in Canada
- Courts, Administrative Agencies, and the Constitution
- Amending the Constitution of Canada
- Contending Sovereignties
- Treaties as Constitutional Agreements
- The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation
- The Section 35 Duty to Consult
- Métis Constitutional Law Issues
- From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism
- Key Doctrines in Canadian Legal Federalism
- The Spending Power in Canada
- Federalism and Health Care in Canada: A Troubled Romance?
- Criminal Law in the Federal Context
- The Environment, Federalism, and the Charter
- Constitutional Aspects of Commercial Law
- The Exploitation of Natural Resources in the Federation
- Minority Languages, Education, and the Constitution
- Marriage, Family, and Federal Concerns
- International Treaty-Making and Treaty Implementation
- Interpreting the <i>Charter</i>
- Access to <i>Charter</i> Justice
- The Justification of Rights Violations: Section 1 of the Charter
- <i>Charter</i> Remedies
- The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms
- Democratic Rights
- The Right to Protest, Freedom of Expression, and Freedom of Association
- Freedom of Religion
- Section 7: The Right to Life, Liberty, and Security of the Person
- The <i>Charter</i> and Criminal Justice
- Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
- Social and Economic Rights
- Constitutional Interpretation: On Issues of Ontology and of Interlegality
- The Living Tree
- Canadian Constitutional Culture: A Genealogical Account
- The Role of Theory in Canadian Constitutional Law
- Feminist Constitutionalism in Canada
- The Politics of Constitutional Law: A Critical Approach
- Constitutional Principles in the <i>Secession Reference</i>
- The Rule of Law, the Separation of Powers and Judicial Independence in Canada
- Understanding Dialogue Theory
- The Canadian Constitution and the World
- Table of Cases
- Index
Abstract and Keywords
This chapter provides a review of some of the leading cases on Métis rights and jurisdiction. In terms of rights, the chapter reviews the Powley decision, critiques its determination of Métis identity, and contrasts this with the Métis right to self-determination and membership determination of Métis communities. This chapter also examines the recent Daniels case and the implications of finding that Métis are “Indians” for the purposes of section 91(24) of the Constitution, which is said to allocate power to legislate over Indians to the federal Parliament. The chapter questions this understanding and in particular the plenary nature of section 91(24) as a head of power and argues that it should be understood differently from all the other heads of power allocated between provincial and federal authority under sections 91 and 92 of the Constitution. This chapter also critically examines the definition of Métis adopted by the Supreme Court of Canada in Daniels as overly broad, resulting in problems of Métis identity legitimation and the preference for a race-based definition of Métis Indians as opposed to a political community definition of Métis.
Keywords: Métis, Indians, self-determination, Métis rights, Métis ancestry, Indigenous peoples, ethnogenisis, Indigeneity, non-status Indians, Aboriginal rights
Larry Chartrand, Full Professor, Faculty of Law, University of Ottawa
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- The Oxford Handbook of the Canadian Constitution
- Contributors
- Introduction
- Indigenous Constitutionalism: Pre-existing Legal Genealogies in Canada
- Constitutional Debates in French Canada, 1764–1774
- 1867: Confederation
- The British Legal Tradition in Canadian Constitutional Law
- The Crown in Canada
- The Executive, the Royal Prerogative, and the Constitution
- Political Institutions in Canada in a New Era
- Parliamentary Sovereignty in Canada
- The Supreme Court of Canada and Appointment of Judges in Canada
- Courts, Administrative Agencies, and the Constitution
- Amending the Constitution of Canada
- Contending Sovereignties
- Treaties as Constitutional Agreements
- The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation
- The Section 35 Duty to Consult
- Métis Constitutional Law Issues
- From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism
- Key Doctrines in Canadian Legal Federalism
- The Spending Power in Canada
- Federalism and Health Care in Canada: A Troubled Romance?
- Criminal Law in the Federal Context
- The Environment, Federalism, and the Charter
- Constitutional Aspects of Commercial Law
- The Exploitation of Natural Resources in the Federation
- Minority Languages, Education, and the Constitution
- Marriage, Family, and Federal Concerns
- International Treaty-Making and Treaty Implementation
- Interpreting the <i>Charter</i>
- Access to <i>Charter</i> Justice
- The Justification of Rights Violations: Section 1 of the Charter
- <i>Charter</i> Remedies
- The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms
- Democratic Rights
- The Right to Protest, Freedom of Expression, and Freedom of Association
- Freedom of Religion
- Section 7: The Right to Life, Liberty, and Security of the Person
- The <i>Charter</i> and Criminal Justice
- Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
- Social and Economic Rights
- Constitutional Interpretation: On Issues of Ontology and of Interlegality
- The Living Tree
- Canadian Constitutional Culture: A Genealogical Account
- The Role of Theory in Canadian Constitutional Law
- Feminist Constitutionalism in Canada
- The Politics of Constitutional Law: A Critical Approach
- Constitutional Principles in the <i>Secession Reference</i>
- The Rule of Law, the Separation of Powers and Judicial Independence in Canada
- Understanding Dialogue Theory
- The Canadian Constitution and the World
- Table of Cases
- Index