Document Type

Book Chapter

Publication Date

5-15-2021

Source Publication

Boyer, Yvonne, and Larry N. Chartrand. Bead by Bead : Constitutional Rights and Métis Community . UBC Press, The University of British Columbia, 2021.

Abstract

For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished. We argue, however, that this is not the case in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here is Tsilhqot'in Nation v British Columbia, a Supreme Court of Canada decision from 2014. Once the Métis show that their occupation of their traditional homeland is sufficient, continuous, and exclusive, the next step is to demonstrate that their title to land has not been extinguished. Focusing on Manitoba, we take this step, and thus further strengthen the argument in support of Métis title.

We do not endorse the jurisprudence pertaining to, or the existence of, the doctrine of extinguishment. Both have been thoroughly and deftly critiqued elsewhere. Our goal is to supplement this critique by highlighting the historical and legal reasons for questioning the applicability of this doctrine to Métis title claims.

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