Metis Constitutional Rights in Section 35(1)

Abstract

In this article, the author explores the need for a theory of Aboriginal rights broad enough to include all of the Aboriginal peoples of Canada. She examines recent developments in judicial recognition of the constitutional rights of the Metis people since their inclusion in s. 35(1) of the Constitution Act, 1982 and applies the fiduciary principle to dealings between the federal government and the Metis. The author also argues that the Metis' inclusion in s. 35(1) suggests that their rights are inherent, sui generis rights. However, the author is concerned about decisions such as R. v. Van der Peet, which may limit Aboriginal s. 35 rights to the protection of activities that were, and continue to be, central to Aboriginal culture. The author argues that using European contact as a blanket cut-off point for defining rights of all Aboriginal peoples could threaten the rights of the Metis, whose culture is a blend of European and Aboriginal elements. A more appropriate date is suggested for measuring the existence of historical Metis rights, namely the date of actual imposition or negotiation of colonial law or government.