Defining "Effective Control" for Northern Métis Communities

Abstract

The “effective control” doctrine arose within the Powley decision two decades ago as an adaptation of the Aboriginal rights test from Van der Peet. Though the doctrine is a required component to asserting Métis rights, there is limited understanding of how and when “effective control” occurs. The Courts have yet to clearly define the doctrine, leading to varying applications within jurisprudence. In the absence of clear definitions, this article proposes three components to the doctrine: surveillance; regulation of Aboriginal uses of land and resources; and regulation of other aspects of Aboriginal lives. These components are applied to northern Alberta to understand what events and government actions are relevant in precipitating “effective control.” The conclusion drawn is that “effective control” potentially occurred much later than previously contemplated by legal decisionsand government pronouncements.