Métis Aboriginal Title

This paper argues that the trace theory is problematic on a number of theoretical and practical grounds. The preferred approach, the author argues, is for a Metis community to assert Aboriginal title based on its own existence as a separate, autonomous Aboriginal people. Such a conclusion is consistent with Powley, where the Supreme Court of Canada expressly rejected the trace theory in respect of Metis Aboriginal rights claims.Given the serious, and arguably insurmountable, problems with the trace theory, scholars and courts concerned with Metis claims of Aboriginal right have sought to alternative means for the Metis to avoid the consequences of the “European contact” cutoff date. The obvious alterative is resort to a test that would explicitly incorporate a relaxed, more flexible cutoff date specifically for Metis, not for First Nations, claims. This is exactly what the Supreme Court Canada did in Powley. In doing so, the author believes the Court created problems where none really existed.The author does not advocate the adoption of either the trace theory or the alternative cutoff date approach. Instead, the author argues for resolving the Metis Aboriginal rights and title dilemma by defining with greater precision the concepts of “contact” for the purpose of proving Aboriginal rights and “assertion of sovereignty” for the purpose of proving Aboriginal title. This means applying pre-existing legal principles, reflected in early English case law, regarding the acquisition of territory with a greater understanding of the historical context of Aboriginal-European contact. By doing so, the author will argue, it is unnecessary to carve out an exception to the existing Aboriginal rights doctrine to meet the unique circumstances of the Metis. Indeed, the interpretation the author offers would result in greater harmonization of Aboriginal law principles generally without a need to create a separate and more relaxed test for the Metis: a test that First Nations would no doubt regard as unfair. The author will first consider the approach the courts ought to apply in respect of Metis claims; the author then offers a position on how the principle of “assertion of sovereignty” ought to be defined. But before addressing these substantive issues, the author would like to discuss very briefly the dilemma he faces as an Aboriginal legal academic writing on issues of Aboriginal law.Although this paper is about applying the doctrine of Aboriginal rights and title as it is currently understood, the author does so with the greatest of hesitation, because of a growing critical perspective of the jurisprudence surrounding this field of law and the fact that, by uncritically applying Aboriginal rights doctrine, the author is indirectly supporting an inequitable legal regime. This paper does not address at length the inequality of peoples or how this inequality continues to be manifest in Canadian Aboriginal rights jurisprudence. Neither does it attempt to expose how Aboriginal law doctrine continues to be grounded in colonial ideology that, notwithstanding certain “favourable decisions,” continues to deny Aboriginal peoples true equality among the peoples of the world. Others have written extensively on these issues; the author will not repeat these important works here. The author will assume, for the purposes of this paper, that the current state of the law regarding Aboriginal rights and title in Canada is legitimate, even though he knows it not to be.

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