The Métis, First Nations and Inuit peoples are distinct Aboriginal peoples whose rights are recognized and affirmed by Section 35 of the Constitution Act, 1982. However, the nature and extent of the rights of the Métis has to date been a gray area as the majority of case law and judicial and academic commentary has focused on the rights of First Nations peoples. Less than a handful of decisions have been rendered by the Supreme Court of Canada expressly considering the rights of the Métis. The rights of the Inuit, with a few exceptions, have been dealt with largely by means of modern treaties and land claim settlements in northern Canada.

This leaves the Métis. The central legal questions facing this "forgotten" (as they call themselves) group of Aboriginal peoples are: "Who are the Métis for the purpose of Section 35?" and "What rights do the Métis hold?"

These questions are certainly relevant for businesses operating in Canada as the answers can ascertain their exposure to, and help them plan their strategies to deal with, Aboriginal issues generally. So it with these that a McCarthy Tétrault partner, Thomas Isaac, begins his discussion and analysis of the rights of Métis people under Section 35 of the Constitution Act, 1982 and reviews related case law.

Thomas Isaac has extensive experience practising nationally in the field of Aboriginal law. He has just published Métis Rights, the second book in his educational series on contemporary Aboriginal law.

Métis Rights addresses such important topics as:

  • Métis self-definition;

  • the meaning of Métis for purposes of constitutionally recognized Aboriginal rights and the Powley test;

  • the term "Indians" and whether the Métis are "Indians" for the purposes of subsection 91(24) of the Constitution Act, 1867;

  • the test for determining entitlements of the Métis to constitutionally recognized and affirmed Aboriginal rights, and the nature and extent of such rights;

  • the challenges the Métis face in making successful claims of Aboriginal title;

  • the application of the Crown's duty to consult the Métis people; and

  • federal and provincial perspectives on Métis issues.

Current to January 15, 2008, Métis Rights includes discussion of decisions released in December 2007 — Manitoba Métis Federation Inc. v. Canada (Attorney General) and Labrador Métis Nation v. Newfoundland and Labrador (Minister of Transportation and Works) — and incorporates statistical data on the Métis population from the 2006 census.

Thomas Isaac is a leading practitioner of Aboriginal law in Canada and has represented industry on such matters before numerous courts and tribunals, including the Supreme Court of Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.