24
THE LAWYERS WEEKLY October 3, 2003
‘We couldn’t even talk to them before because they wouldn’t talk to us.’
MÉTIS
–continued from front page–
“Now we can start working.
We couldn’t even talk to them
before because they wouldn’t talk
to us.”
Teillet added that as a descendant of Riel, who was hanged for
treason following the rebellion of
1885, it was a doubly sweet victory. “It is an absolutely unanimous, solid judgment from the
court with huge direction to the
government that ‘It is not an
insurmountable problem to identify the Métis. It’s crucial to get
on with this.’ Basically the court
said, ‘Quit stalling.’ ”
Teillet’s co-counsel, Arthur
Pape of Pape and Salter in Vancouver, said Powley is for Métis
what R. v. Sparrow, [1990] 1
S.C.R. 1075, was to the Indian
people. “The court has now made
it possible for ... interests in the
land, in resources, in self-governance to in fact be enjoyed and
operate for the benefit of Métis
people, as the Constitution has
extended similar kinds of protections to First Nations and to
Inuit.”
“The government will comply
with the decision, and we are
continuing to review the decision
to determine that,” said Brendan
Crawley, spokesman for the
Ontario Ministry of the Attorney
General.
Section 35 of the Constitution
Act defines the “aboriginal peoples of Canada” to include “the
Indian, Inuit and Métis peoples.”
Subsection 35(1) states “the
Arthur Pape
existing aboriginal and treaty
rights of the aboriginal peoples of
Canada are hereby recognized
and affirmed.”
Status Indians have relied on
s. 35(1) to obtain court recognition of their entitlements to
engage in subsistence hunting
and fishing, for example, but
Powley from Ontario, and its
companion case, R. v. Blais from
Manitoba, were the crucibles for
comparable Métis entitlements.
Both appeals involved Métis
accused, charged with unlawfully hunting moose or deer, who
relied on s. 35(1) to defend themselves against provincial regulations that exempted “Indians”
but not Métis.
As the first test of Métis’ constitutional rights at the Supreme
Court, the appeals attracted 18
interveners, including eight
attorneys general, several aboriginal associations, and groups
such as the Ontario Federation
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of Anglers and Hunters and the
B.C. Fisheries Survival Coalition.
The Métis peoples, with a total
population of between 150,000 to
300,000, are descended from
unions between Europeans and
Indians or Inuit and grew into a
distinct people in the 17th and
18th centuries.
In Powley, the Supreme Court
bluntly serves notice that governments who persist in denying
Métis their aboriginal rights are
in breach of the Constitution.
“Difficulties in determining
such questions as who is a Métis
can not be relied on by governments to deny Métis their constitutional rights,” the Supreme
Court admonished the government of Ontario, which has
maintained a blanket denial of
any Métis right to hunt for food,
or any special access rights to
natural resources.
The court explained that
under s. 35, “Métis” does not
encompass all individuals with
mixed Indian and European heritage but refers only to distinctive peoples who, in addition to
their mixed ancestry, developed
their own customs, and recognizable group identity separate
from their Indian, Inuit and
European forebears. “A Métis
community is a group of Métis
with a distinctive collective identity, living together in the same
geographical area and sharing a
common way of life.”
As for entitlements, s. 35 protects only practices that were
historically important features of
aboriginal communities and persist as integral elements of the
aboriginal culture.
The court’s test in R. v. Van der
Peet, [1996] 2 S.C.R. 507, for
determining Indian and Inuit
entitlements under s. 35 identifies the critical time as the period
before European contact. But
this “pre-contact” component of
Van der Peet must be modified,
the court said, to reflect the
unique fact that the Métis came
into existence as peoples only as
a result of European contact.
Métis historical practices, customs and traditions must therefore be identified using a “precontrol” test that focuses on the
period after a particular Métis
community arose but before the
community came under the control of European laws and customs, said the court.
It elaborated that in order to
establish a site-specific aboriginal rights claim, an identifiable
Métis community with some
degree of continuity and stability
must be established through evidence of shared customs, traditions and collective identity, as
well as demographic evidence.
The court affirmed that in
Powley the trial judge correctly
found a historic Métis community in and around Sault Ste.
Marie; that hunting for food was
integral to the Métis way of life
in those environs prior to 1850
when Europeans took effective
control over that area; and that
since then the practice of hunting
for food has been continuous.
In determining the vexed
question of who qualifies to make
Métis claims, the court said individuals are only entitled to exercise Métis aboriginal rights by
virtue of their ancestral connection to, and current membership
in, a Métis community. The
judges stressed they were not
setting down “a comprehensive
definition of who is Métis for the
purpose of asserting a claim
under s. 35.” At the same time,
they said it is “an urgent priority” that “appropriate membership tests” be devised before further disputes arise.
The court suggested, however,
that “important components of a
future definition” would include
three “broad factors” as hallmarks of Métis identity under s.
35: self-identification, ancestral
connection and community
acceptance.
While there is no minimum
“blood quantum,” the judges stipulated “we would require some
proof that the claimant’s ancestors belonged to the historic
Métis community by birth, adoption, or other means.”
Moreover, in establishing that
a claimant is accepted by the
modern Métis community, the
“core” of such acceptance is “past
and ongoing participation in a
shared culture, in the customs
and traditions that constitute a
Métis community’s identity and
distinguish it from other groups.”
The court said other indicia of
community acceptance might
include participation in community activities, and testimony
from other Métis members about
the claimant’s connection to the
community and its culture.
“The range of acceptable forms
of evidence does not attenuate
the need for an objective demonstration of a solid bond of past
and present mutual identification and recognition of common
belonging between the claimant
and other members of the rightsbearing community.”
“Members of the Métis community in and around Sault Ste.
Marie have an aboriginal right to
hunt for food under s. 35(1),” the
court said. “This is determined
by their fulfillment of the
requirements set out in Van der
Peet, modified to fit the distinctive purpose of s. 35 in protecting
the Métis.”
In Blais, the Supreme Court
upheld the conviction of appellant Ernest Blais for unlawfully
hunting deer out of season on
Crown land, contrary to Manitoba’s Wildlife Act. The accused
Métis had based his defence on
the 1930 Natural Resource
Transfer Agreement (NRTA) that
exempts from provincial seasonal restrictions and licensing
requirements “Indians” who are
hunting or fishing for food on
unoccupied Crown lands and on
lands to which Indians have a
right of access.
Based on the historical context, the section’s language and
the purpose of the NRTA, the
court held Métis can not benefit
from the protection accorded to
“Indians” because “the stark historic fact” is that both the Crown
and the Métis in Manitoba
“viewed the Indians as a separate group with different historical entitlement.”
Reasons in R. v. Powley, [2003] S.C.J.
No. 41, and R. v. Blais, [2003] S.C.J. No.
42, are available from FULL TEXT: 2321030,and 2321-031, 40 pp. and 29 pp.
Kasirer McGill’s new law dean
Montreal
McGill
University
has
announced the appointment of
Nicholas Kasirer as dean of its
Faculty of Law for a five-year
term beginning November 1,
2003.
A James McGill professor, the
new dean joined the faculty in
1989 and is currently director of
the Quebec Research Centre for
Private and Comparative Law.
Prof. Kasirer has focused his
teaching and his research on
law and language and on family
property law. He has published
extensively in Canada and
abroad and is particularly wellknown as a co-author of the multiple-volume Private Law Dictionary and Dictionnaire de droit
privé research project based at
McGill. He has received
numerous awards, including the
Hessel Yntema Prize from the
American Society of Comparative Law and the Prix de la Fondation du Barreau du Québec
for his scholarship in private
and comparative law.
He has lectured in English
Nicholas Kasirer
and French at McGill, in the
common law and the civil law
and has recently been visiting
professor in comparative law at
the Université de Paris I (Panthéon-Sorbonne). In addition to
his achievements in teaching
and research, he has served on a
number of university and faculty committees, including the
Academic Policy and Planning
Committee.