Courting colonialism? The juridical construction and political aftermath of Metis rights in R. v. Powley

Christian Andersen
Dept. of Sociology, University of Alberta
July, 2006


This dissertation is the culmination two goals. The primary goal centred on an investigation of juridical constructions of Métis Aboriginality through an examination of the court files of a recently decided
Aboriginal rights case, R. v. Powley. Analyzing factums, expert reports, testimony and the court decisions at both the Court of Appeal for Ontario and the Supreme Court of Canada, I investigated how legal actors positioned Métis Aboriginality in light of their (apparent) 'mixed bloodedness'. Using insights harnessed from various bodies of critical legal theory and Pierre Bourdieu's concept of social fields, I analyzed the various discursive constructions of Métis Aboriginality with respect to the purpose, meaning, proper chronology and role of 'blood quantum' in its inclusion in section 35 of the Constitution Act, 1982. In doing so, the dissertation demonstrates the persistence in contemporary Canadian jurisprudence of racist discourses of racial and cultural purity which originally anchored nineteenth century Canadian constructions of Aboriginality. Although Métis were finally ordained as 'fully Aboriginal' at the Supreme Court of Canada, Aboriginality was itself still positioned as a historical, pre-colonial phenomenon. This is discouraging for Native communities formed after (and in reaction to) the colonizing projects of the Canadian state, since they fall outside the protective ambit of section 35 Aboriginal rights. The secondary goal, pursued more briefly, consists of positioning 'Law' as an antagonistic and fissured set of social fields to demonstrate the shortcomings of attempts to understand 'Law' as constitutive. That is to say, this research demonstrates how different fields of 'Law' compete with each other in a hierarchical playing field such that court victories can be used by Métis political organizations at the expense of other areas of 'Law'. This fracturing necessitates an analytical movement away from understanding 'Law' as a single entity to an analytical lens which attempts to understand the tensions and antagonisms involved in the reproduction of 'Law'. Although the smoke has yet to sufficiently clear from the Powley decision, the fact that at present we fail to hold a clear understanding of the court case's effects should give pause to theorists who seek to imbue 'Law' with a constitutive power it neither possesses nor deserves.