November
16th was Louis Riel Day. The
day commemorates the anniversary of Riel's execution in 1885. Riel was a
politician, a founder of the province of Manitoba and a political leader of the
Métis people. This year's Louis Reil Day also marked the 20rth anniversary of
the Supreme Court of Canada's decision in R. v. Powley (2003) SCC 43 (CanLII),
a landmark decision for Canada's Métis people.
In
the Powley case, Steve Powley and Roddy Powley, who were members of a Métis
community near Sault Ste. Marie, were acquitted at trial of unlawfully hunting
a moose without a hunting licence in contravention of sections of Ontario's
Game and Fish Act (the "Act"). The trial judge found that members of
the Métis community in and around Sault Ste. Marie have under section 35(1) of
the Constitution Act 1982 (the "Constitution Act") an aboriginal
right to hunt for food that the Act infringed, without justification. The
Ontario Superior Court of Justice and the Ontario Court of Appeal unanimously
upheld the acquittal. The Crown appealed those decisions to the Supreme Court
of Canada.
The
Supreme Court unanimously dismissed the Crown's appeal. The Court held that the
term "Métis" in section 35 of the Constitution Act does not encompass
all individuals with mixed indigenous and European heritage; rather it refers
to distinctive peoples who, in addition to their mixed ancestry, developed
their own customs and recognizable group identity separate from their
Indigenous or Inuit and European ancestors. A "Métis community" is a
group of Métis with a distinctive collective identity, living in the same
geographical area and sharing a common way of life. The purpose of section 35
is to protect practices that were historically important features of these
distinctive communities and that persist in the present day. The pre-contact
aspect of the "Van der Peet test" must be adjusted to consider
post-contact "ethnogenesis and evolution" of the Métis. A pre-control
test establishing when Europeans achieved political and legal control in an
area and focusing on the period after a particular Métis community arose and
before it came under the control of European laws and customs is necessary to
accommodate this history.
The
Court held that aboriginal rights are communal, grounded in the existence of a
historical and present community and exercisable by virtue of an individual's
ancestrally based membership in the present community. The aboriginal right
claimed in this case was the right to hunt for food in the area of Sault Ste.
Marie. To support 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 trial judge's findings of a
historic Métis community and of a contemporary Métis community in and around
Sault Ste. Marie were supported by the record.
The
Court further held that the verification of a claimant's membership in the
relevant contemporary community is crucial since individuals are only entitled
to exercise Métis aboriginal rights by virtue of their ancestral connection and
current membership in a Métis community. Self-identification, ancestral
connection, and community acceptance are factors which define Métis identity
for the purpose of claiming Métis rights under section 35. Absent formal
identification, courts will have to ascertain Métis identity on a case-by-case
basis. Here, the trial judge correctly found that the respondents were members
of the Métis community that arose and still existed in and around Sault Ste.
Marie.
The
historical record fully supported the trial judge's findings at the period just
prior to 1850 as the appropriate date for finding effective European control in
the Sault Ste. Marie area. The evidence also supported the finding that hunting
for food is integral to the Métis way of life in Sault Ste. Marie in the period
just prior to 1850. This practice has been continuous to the present.
Ontario's
lack of recognition of any Métis right to hunt for food in the application of
the challenge provisions of the Act infringes the Métis' aboriginal right.
Conservation concerns did not justify the infringement. Even if the moose
population in that part of Ontario were under threat, the Métis would still be
entitled to a priority allocation to satisfy their subsistence needs.
Further,
the difficulty of identifying members of the Métis community should not be
exaggerated to defeat constitutional rights. In the immediate future, the
hunting rights of the Métis should track those of the Ojibway in terms of
restrictions for conservation purposes and priority allocations. In the longer
term, a combination of negation and judicial entitlement will more clearly
define the contours of the Métis right to hunt.
