Federal and Provincial Crown Obligations to the Métis

• Author: Jean Teillet
• Pages: 71-93

71

  

Fed eral and Prov inci al Crow n Ob liga tion s

to the Métis

 

A. INTRODUCTIO N

e language and purpose of section  in the Constitution Act, ,

imported equity into the federal common law of Aboriginal rights. e

Supreme Court of Ca nada has held that equit y governs the relationship

of the Crown to the Aborigi nal peoples of Canada becaus e the language

of section  establishes that the Crown is in a duciary relationship with

the “aboriginal peoples of Canada.” e equitable oversight has been

supported by the continuing iterations of the federal common law  with

respect to the duciar y relationship between the Crown and Aborigi nal

peoples, and t he honour of the Crown.

is paper explores whether the Crown has equity-based obliga-

tions to Métis as one of t he “aboriginal peoples of C anada” in section 

and concludes that the Crown indeed has such obligations. e Crown’s

obligations to the Métis arise from a purposive, equitable, a nd remedial

 Roberts v. Canada , []  S.C.R. , where the Supreme Cou rt of Canada found

that Aborigin al title was federal com mon law. For more on federal common law,

see Peter Hogg, “Constit utional Law — Limits of Federal Cour t Jurisdiction — Is

ere a Federal Common Law? ” ()  Can. Bar Rev. .

 R. v. Sparrow, []  C.N.L.R.  at  (S.C.C.) [Sparrow], where the Court found

that “the Govern ment has the responsibility to ac t in a duciary capacity w ith respect

to aborigina l peoples. e relationship between the G overnment and aboriginal s is

trust-like, r ather than adversaria l, and contemporary recognit ion and armation

of aboriginal r ights must be dened in lig ht of this historic relationship.”

72  

analysis of section , which call s for the recognition, armation, and

protection of the Mét is. It also calls for the Crown to determine, recog-

nize, and respec t their Aboriginal and treaty rights. None of this can be

achieved by silence or inaction. e conclusion is t hat these obligations

can be implemented only by positive actions.

Many have proposed that Métis must be, along with Inuit, consid-

ered “Indians” w ithin the meaning of section () of the Constitution

Act, , with the result that the federa l Crown would have jurisdict ion

for all Aborig inal peoples. Some have proposed that th is jurisdiction is

exclusive and ousts the provinces f rom legi slating with respect to Ab-

original rights. However, section  is not limited in its application to

federal jurisdiction. is paper proposes the more compelling arg ument

that with respect to the Crown’s obligations to determine, recognize, and

protect the Métis and their rights, the Crown is indivisible and that both

the federal and provincial Crowns ca rry these obligations.

B. A PURPOSIVE , EQUITABLE, AND REMEDIAL READING OF

SECTION 

In , the Canadian Constitution was amended to i nclude section ,

which recogn ized and a rmed the Abor iginal and treaty rights of the

 Reference re Eskimos, [] S.C.R. .

 Peter Hogg, Constitut ional Law of Canada, th ed. (Sca rborough, ON: Carswell,

) at -. Also see Clem Chartier, “India ns: An Analysis of the Term ey

Used in s. () of the British North Am erica Act, ” (–)  Sask.

L. Rev. ; B.W. Morse & J. Giokas, “Do Métis Fall wit hin Section () of the

Constitution Act , ?” in Canada, Royal Commi ssion on Aboriginal Peoples,

Aboriginal Self- Government: Legal and Con stitutional Issues by Patrick Mac klem

(Ottawa: Royal Com mission on Aboriginal Peoples, ) [Aboriginal S elf-Gov-

ernment]. For the opposite view, see oma s Flanagan, “e Case aga inst Métis

Aborigina l Rights” ()  Can. Pub. Pol’y ; Bryan Schwa rtz, First Principl es:

Constitutional R eform with Respect to the Abor iginal Peoples of Canada (Ki ngston,

ON: Institute of Intergovernment al Relations, ). For discussion as to whether it

matters, see McMa hon and Martin, “e Méti s and (): Is Inclusion the Issue?”

in Aboriginal Se lf-Government, ibid.

 Kent McNeil, “Aboriginal Title and the Division of Powers: Rethinki ng Federal and

Provincial Jurisdict ion” in Kent McNeil, Emerging Justice: E ssays on Indigenous

Rights in Canada an d Australia (Saskatoon: Native Law Centre,  ) at –.