Jason Madden, Partner at Pape Salter Teillet, and Osgoode Hall Law Professor Karen Drake will present their forthcoming paper, The Trifecta of Métis Law: A Framework for Reconciliation with the Métis
This paper argues that three decisions of the Supreme Court of Canada—Powley, Manitoba Metis Federation, and Daniels—constitute the trifecta of Métis law. Together, these decisions answer the key constitutional questions regarding Métis-Crown relations and thereby provide a legal framework for reconciliation with the Métis. Powley sets out the principles for identifying the Métis who are entitled to exercise section 35(1) Aboriginal rights, as well as the test for establishing those rights. Manitoba Metis Federation compels the Crown to address the outstanding land-related claims of the Métis. Daniels determines who the Métis can hold accountable when their constitutional rights are not respected.
This paper also defends the three decisions within the trifecta against critiques by scholars and jurists, including Métis critics. It argues that the Powley decision can be interpreted in a way that affirms Métis nationhood and need not succumb to the racialized logic of Métis-as-mixed. In addition, the analysis employed in Manitoba Metis Federation has the potential to apply more broadly to protect Métis interests. Finally, the Daniels decision was not a hollow victory for the Métis; it affirms that although the federal government might not have a duty to exercise its legislative jurisdiction with respect to the Métis, it does have a duty to negotiate with the Métis regarding their outstanding claims.
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