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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.17 Métis Constitutional Law Issues

Larry Chartrand

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

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.

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