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MÉTIS LAW in CANADA by Jean Teillet Métis Law in Canada

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MÉTIS LAW in CANADA by Jean Teillet Métis Law in Canada MÉTIS LAW IN CANADA by Jean Teillet Métis Law in Canada. Copyright©2013 by Jean Teillet. All rights reserved. This book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, or by any information storage and retriev- al system, with appropriate credit. First Published: 1999 First Published on the web: 2005 First Published in Looseleaf Book: 2013 Published by Pape Salter Teillet, Vancouver, British Columbia, Canada www.pstlaw.ca ISBN: 978-0-9917027-0-1 Contents Dedication Page ................................................................................................. vi Foreward by Dr. Arthur Ray ............................................................................. vii About the Author – Jean Teillet, IPC .................................................................. xi Credits & Back Issues ....................................................................................... xii About the Publisher - Pape Salter Teillet ................................................ xii Introduction ..................................................................................................... xiii What’s New .......................................................................................... xiii What We’re Watching ......................................................................... xviii Chapter One: Who are the Métis? ...................................................................1-1 1.1 The Métis of the Northwest are an aboriginal people .....................1-1 1.2 Language and Naming ..................................................................1-2 1.3 Métis Identity ................................................................................1-4 1.4 Métis and the Indian Act ..............................................................1-13 1.5 Métis Identity FAQS ....................................................................1-17 1.6 A Brief Political & Legal History of the Métis of the Northwest ..1-22 1.7 What is a Métis Community? ......................................................1-28 Chapter Two: Métis Harvesting Rights.............................................................2-1 2.1 The Law of Aboriginal Rights ........................................................2-1 2.2 Métis Harvesting Rights ..............................................................2-17 2.2.1 The Powley test to determine s. 35 harvesting rights. ...........2-22 2.3 Commercial Harvesting Rights ....................................................2-29 2.4 Aboriginal Communal Fishing Licenses ........................................2-30 2.5 Provincial Harvesting Agreements ................................................2-31 2.6 Harvesting Policies and Guidelines ...............................................2-32 2.7 Migratory Birds ............................................................................2-33 Chapter Three: Métis Title and Land Claims ..................................................3-1 3.1 Aboriginal Title ..............................................................................3-1 3.2 Métis Title ......................................................................................3-5 3.3 Métis Land Rights Case Law ..........................................................3-7 3.4 Scrip .............................................................................................3-10 3.5 Specific Claims .............................................................................3-12 3.6 Métis Lands and Resources Negotiated Agreements ....................3-13 iii Chapter Four: Constitutional Interpretation .....................................................4-1 4.1 Jurisdiction .....................................................................................4-1 4.2 Section 91(24) ................................................................................4-2 4.3 Natural Resources Transfer Agreements .........................................4-3 4.4 1870 Order ....................................................................................4-6 Chapter Five: Human Rights ............................................................................5-1 5.1 Section 15 of the Charter of Rights and Freedoms – Equality .........5-1 5.2 International Human Rights ..........................................................5-3 5.2.1 UN Human Rights Committee .............................................5-3 5.2.2 UN Declaration on the Rights of Indigenous Peoples ............5-4 5.2.3 Convention No. 169 ..............................................................5-5 5.2.4 Organization of American States – Inter-American Commission on Human Rights (IACHR) ...................................................5-7 Chapter Six: Administrative Tribunals and Class Actions .................................6-1 6.1 Administrative Tribunals ................................................................6-1 6.2 Métis Settlements Appeals Tribunal (MSAT) ..................................6-2 6.3 Class Actions ..................................................................................6-3 6.3.1 Sixties Scoop Class Actions....................................................6-5 6.3.2 Residential School Class Actions ..........................................6-5 6.4 Indian Residential Schools Settlement Agreement – May 8, 2006 ...6-7 6.5 Truth and Reconciliation Commission ............................................6-8 Chapter Seven: Criminal Law ...........................................................................7-1 7.1 Aboriginal Sentencing .....................................................................7-1 Chapter Eight: Métis in Legislation ..................................................................8-1 8.1 Alberta – Constitution of Alberta Amendment Act, 1990 ...............8-1 8.2 Alberta – Métis Settlements Legislation ..........................................8-1 8.3 Saskatchewan – The Métis Act .......................................................8-3 8.4 Ontario Green Energy Act .............................................................8-3 8.5 Historic Legislation ........................................................................8-3 8.5.1 Manitoba Act ........................................................................8-3 8.5.2 Dominion Lands Act .............................................................8-4 8.5.3 Regulations & Orders in Council ..........................................8-4 8.5.4 Policies ..................................................................................8-5 iv 8.6 Riel Bills – Proposed Exoneration for Louis Riel ............................8-7 8.7 Métis Resolutions ...........................................................................8-8 8.7.1 Honoring Louis Riel ..............................................................8-9 8.7.2 The Year of the Métis – 2010 ................................................8-9 Chapter Nine: Obligations of the Crown ........................................................9-1 9.1 Fiduciary Law and the Honour of the Crown .................................9-1 9.2 Consultation and Accommodation .................................................9-4 9.3 Métis Consultation .........................................................................9-7 Chapter Ten: Self-Government .......................................................................10-1 10.1 Self Government ........................................................................10-1 10.2 Delegated Governance ................................................................10-2 10.3 Negotiated Agreements in Support of Métis Self-Government ...10-3 Case Law Summaries .....................................................................................11-1 List of Cases by Subject Matter ......................................................................12-1 Bibliography ...................................................................................................13-1 v Dedication Page Métis Law in Canada is dedicated to Richard B. Salter and the late Arthur C. Pape (1942-2012). In 1992, when I was still in second year of law school at the University of Toronto I walked into Rick Salter’s office. It was supposed to be a 20-minute interview for a summer position. Twenty-one years have passed and I have never left. I have never wanted to leave. I could never imagine another law firm that would provide such a rich, creative and supportive work environment. From the very first day Rick and Art mentored, supported and encouraged me in my wish to work in the field of aboriginal law. I walked into their law offices full of my desire to work on Métis law, which at that time was essentially a non-existent field of law. Rick and Art underwrote financially and with their mentorship all of those early Métis cases that I worked on – including Powley. They had been together as law partners for eight years before I came along. In 2005, I became a partner and the firm became Pape Salter Teillet. In 2012, Arthur Pape passed away and Rick is beginning a gradual retirement from the field. These two remarkable men have contributed generously and often in unacknowledged ways to the aboriginal peoples of Canada and to the field of aboriginal law. They have been participants in almost every major aboriginal rights case from Sparrow, Delgamuukw, Haida and Taku, Powley and many more. They have negotiated major land claims agreements in the Yukon and NWT. They have
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