MÉTIS LAW IN CANADA by Jean Teillet

Transcription

1 MÉTIS LAW IN CANADA by Jean Teillet

2 Métis Law in Canada. Copyright 2013 by Jean Teillet. All rights reserved. This book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, or by any information storage and retrieval system, with appropriate credit. First Published: 1999 First Published on the web: 2005 First Published in Looseleaf Book: 2013 Published by Pape Salter Teillet, Vancouver, British Columbia, Canada ISBN:

3 Contents Dedication Page... vi Foreward by Dr. Arthur Ray... vii About the Author Jean Teillet, IPC... xi Credits & Back Issues... xii About the Publisher - Pape Salter Teillet... xii Introduction... xiii What s New... xiii What We re Watching... xviii Chapter One: Who are the Métis? The Métis of the Northwest are an aboriginal people Language and Naming Métis Identity Métis and the Indian Act Métis Identity FAQS A Brief Political & Legal History of the Métis of the Northwest What is a Métis Community? Chapter Two: Métis Harvesting Rights The Law of Aboriginal Rights Métis Harvesting Rights The Powley test to determine s. 35 harvesting rights Commercial Harvesting Rights Aboriginal Communal Fishing Licenses Provincial Harvesting Agreements Harvesting Policies and Guidelines Migratory Birds Chapter Three: Métis Title and Land Claims Aboriginal Title Métis Title Métis Land Rights Case Law Scrip Specific Claims Métis Lands and Resources Negotiated Agreements iii

4 Chapter Four: Constitutional Interpretation Jurisdiction Section 91(24) Natural Resources Transfer Agreements Order Chapter Five: Human Rights Section 15 of the Charter of Rights and Freedoms Equality International Human Rights UN Human Rights Committee UN Declaration on the Rights of Indigenous Peoples Convention No Organization of American States Inter-American Commission on Human Rights (IACHR) Chapter Six: Administrative Tribunals and Class Actions Administrative Tribunals Métis Settlements Appeals Tribunal (MSAT) Class Actions Sixties Scoop Class Actions Residential School Class Actions Indian Residential Schools Settlement Agreement May 8, Truth and Reconciliation Commission Chapter Seven: Criminal Law Aboriginal Sentencing Chapter Eight: Métis in Legislation Alberta Constitution of Alberta Amendment Act, Alberta Métis Settlements Legislation Saskatchewan The Métis Act Ontario Green Energy Act Historic Legislation Manitoba Act Dominion Lands Act Regulations & Orders in Council Policies iv

5 8.6 Riel Bills Proposed Exoneration for Louis Riel Métis Resolutions Honoring Louis Riel The Year of the Métis Chapter Nine: Obligations of the Crown Fiduciary Law and the Honour of the Crown Consultation and Accommodation Métis Consultation Chapter Ten: Self-Government Self Government Delegated Governance Negotiated Agreements in Support of Métis Self-Government Case Law Summaries List of Cases by Subject Matter Bibliography v

6 Dedication Page Métis Law in Canada is dedicated to Richard B. Salter and the late Arthur C. Pape ( ). In 1992, when I was still in second year of law school at the University of Toronto I walked into Rick Salter s office. It was supposed to be a 20-minute interview for a summer position. Twenty-one years have passed and I have never left. I have never wanted to leave. I could never imagine another law firm that would provide such a rich, creative and supportive work environment. From the very first day Rick and Art mentored, supported and encouraged me in my wish to work in the field of aboriginal law. I walked into their law offices full of my desire to work on Métis law, which at that time was essentially a non-existent field of law. Rick and Art underwrote financially and with their mentorship all of those early Métis cases that I worked on including Powley. They had been together as law partners for eight years before I came along. In 2005, I became a partner and the firm became Pape Salter Teillet. In 2012, Arthur Pape passed away and Rick is beginning a gradual retirement from the field. These two remarkable men have contributed generously and often in unacknowledged ways to the aboriginal peoples of Canada and to the field of aboriginal law. They have been participants in almost every major aboriginal rights case from Sparrow, Delgamuukw, Haida and Taku, Powley and many more. They have negotiated major land claims agreements in the Yukon and NWT. They have also mentored two generations of aboriginal lawyers. From the first day that I started writing Métis Law in Canada (at that time known as the Métis Law Summary) in 1999, Rick and Art have financed it. My vision was to provide, free of charge, a guide to Métis law that would be accessible to the Métis especially the people in the small communities, the beaders, the trappers, the children in northern classrooms, Métis harvesters and the politicians who sit on Métis representative bodies across the Métis Nation. It gradually grew into the book that is now used in law schools and native studies departments at colleges and universities across Canada. It still remains the only full collection of Métis case law in the country. Métis Law in Canada exists because of these two extraordinary men. vi

7 Foreward by Dr. Arthur Ray Métis Law in Canada reminds me of a conversation I had with Professor Doug Sanders shortly after I had arrived at UBC in 1981 to take up a position in the History Department. Doug already was a highly recognized authority on human rights law and the previous year he had been involved in the early precedent-setting British Columbia native fishing rights case, which is remembered as Jack v. Regina. 1 When we met I had not yet been involved in rights litigation as an expert witness, but I was interested in the ongoing process. So, I had many questions for Doug. In particular, I wondered if the Métis would make any headway in advancing their rights? I also wanted to know what role, if any, history played in the development of native law more generally. Regarding the advancement of Métis rights, Doug was doubtful that very much could be accomplished given the very complex issues that their rights claims raised. Their dual aboriginal and Euro-Canadian ancestry was particularly problematic when it came to recognizing rights based on distinctive cultural practices. What neither of us anticipated at the time was that the following year Canada would approve a new constitution (the Constitutional Act, 1982), which included the game changing section 35 that protected existing, but undefined, aboriginal and treaty rights in 35(1)) and included the Métis as one of three groups of aboriginal people in 35(2). The provision of constitutional protection for aboriginal and treaty rights brought to partial fruition the ongoing political struggle of First Nations, Inuit, and Métis political leaders to have the rights of their people recognized and protected in Canadian law. The Métis effort had begun with armed conflicts in Western Canada in 1870 and 1885 under the leadership of Louis Riel and it was carried forward in the political arena by a succession of Métis activists. Harry Daniels ( ) is credited with playing the crucial role in having the Métis included in section 35. This Métis accomplishment made Canada the first country to give constitutional recognition to people of mixed European-indigenous ancestry. The inclusion of section 35 in the new constitution also opened a flood-gate of aboriginal and treaty rights litigation because it had left it to the courts to provide content for this constitutional provision. In the course of doing so the courts have had to address the very complex issues concerning the Métis that Doug Sanders had anticipated. And this is where Jean Teillet came in. Jean, who is the great grandniece of Louis Riel, 1 Jack v. Regina, [1979] S.C.J. No vii

8 has been in the forefront of Métis rights litigation, and aboriginal and treaty rights more generally, from the time she was called to the bar in Ontario in She has represented numerous First Nations and Métis claimants from Ontario to the Pacific Coast and the Arctic watershed. As for my second question to Doug Sanders in 1981, the one about history and the law, he pointed out to me that native law was one of the few areas of jurisprudence where historical evidence played an important role in developing the precedent-setting case law. It was the importance of historical evidence in native rights litigation that eventually led me to work with Jean Teillet. While Jean was preparing to act as lead counsel for the Métis defendants in the foundational rights case of R. v. Powley 2 (2003), an historical geographer of the Métis, Frank Tough of the Native Studies Department at the University of Alberta, recommended that she contact me to test my willingness to act as an expert witness. Frank thought I could educate the court about: (a) the historical geography of the fur trade of the Great Lakes region on the eve of the Robinson Treaties of 1850, (b) the role the Métis played in that economy, and (c) the nature of the their economy in the vicinity of Sault Ste. Marie circa When Jean followed Frank s suggestion and called me to explain who she was and what she needed from me, I readily accepted her invitation. I agreed to contribute partly because of my long-standing interest in historical geography of the Métis. As a graduate student in the early 1960s I had intended to make the Métis of the Red River valley the focus of my doctoral dissertation. I got sidetracked however, by looking at the roles various aboriginal peoples played in the Canadian fur trade and considering the impacts that their involvements had had on their traditional economies and ecological situations. So, Jean s invitation gave me a tantalizing opportunity to revisit an old interest of mine even though her request concerned a community that was located far to the east of Red River and pre-dated the founding of that settlement. I also was excited about the prospect of working for member of the legendary Riel family, particularly one who was continuing the political/legal traditions of her famous ancestor. Powley gave me my first opportunity to get to know Jean in and out of the courtroom. I was immediately struck by her intense interest and excitement about the historical questions that this Métis hunting rights case raised. Jean had a well-ar- 2 R. v. Powley, (2003) SCC 43, aff g [2001] O.J. No. 607 (CA), aff g [2000] O.J. No. 99 (SC), aff g [1998] O.J. No (PC) viii

9 ticulated theory of the case, as she always does, and wanted to know if historical evidence would support it. What I appreciated was that she treated her theory as a hypothesis that had to be tested. Jean never encouraged me, or the other expert she retained, to selectively winnow records in order to find data that supported her theory while ignoring evidence to the contrary. In that respect, she took a sound scholarly approach. While not wanting us to read the historical record selectively, she did want us to put forward expert opinions (and draw conclusions) about what the records said about the issues Powley raised. As a result, her questions during my examination-in-chief often were as pointed and difficult to address as were those put forward by opposing counsel during cross-examination. In fact, because Jean s probing questions usually went straight to the heart of the issues in dispute, my replies often became the subject of the toughest questions I faced during crossexamination. In Powley they concerned: (a) the issue of whether a species-specific approach to aboriginal hunting made sense in light of the nature of traditional First Nations/Métis economies in the Lake Superior region during the early 19th century, (b) whether there was a distinct Métis community in the Sault Ste. Marie area before the establishment of effective British/Canadian control, and (c) whether that community had defended its rights in the 19 th century? When the trial was over, Jean remarked to me that I had received a vicious cross. I smiled and replied, half-jokingly, that my discomfort was of her making because she had set me up for it by her questions of me during my evidence-in-chief. As stressful as this courtroom experience was for me, working with Jean as an expert was a strangely fun experience that was also intellectually challenging and rewarding. I readily teamed up with her again in R. v. Goodon 3 (Manitoba) and R. v. Hirsekorn 4 (Alberta), where we addressed issues that arose from Powley regarding how Métis communities and settlements are to be defined. Beyond the courtroom I have come to appreciate Jean s dedication to legal education and community service. I first became aware of these commitments when one of my female students of native history expressed an interest in pursuing a career in aboriginal rights law. She asked me what I thought about her plan. I recommended that she contact someone who was active in the field and who could speak to the demands and rewards that such a career could offer. I told her that Jean would be an excellent person to interview. Knowing that Jean is always extremely busy, I volunteered to contact her to see if she would be available. When I phoned, Jean promptly replied: I always have time for students. It is this spirit and commitment 3 R. v. Goodon [2009] 2 CNLR R. v. Hirsekorn, [2011] A.J. No [QB], rev g in part [2010] A.J. No [PC] ix

10 to making the law accessible at all levels that helps explain how she has managed to find the time to produce her variously titled summary of Métis law every year since Numerous online sources now exist for all aspects of Canadian law. The web sites of the various courts are particularly useful. Yet, Jean s annual review of Métis law remains the essential reference work because she provides much more than summaries of cases. For example, two very useful features of her annual review is the brief opening section that highlights the key legal developments of the past year under the heading What s New, which is followed by What We re Watching, where she flags important developments that are under way. In Part One of what follows these introductory sections of her annual review, Jean masterfully intertwines Canadian native and legal history and case law to provide an incomparable narrative overview of a broad array of crucial Métis issues. These include: the challenges of Métis identity, harvesting rights, land title, constitutional interpretations, human rights, constitutional questions, class actions, criminal law, legislative concerns, the duty of the Crown to Métis, and Self-government. Jean s chronicle is essential reading for those who want to gain an understanding of all aspects of the historical roots and present state of Métis rights. In Part Two she follows up with case law summaries. She leads off with an index of Métis cases, which is organized by subject and jurisdiction. The case summaries that follow, which inevitably are written in very accessible prose, are ordered alphabetically. As a teacher, researcher, writer and occasional expert witness, I have found Jean s annual review to be an invaluable resource. I eagerly await it every year. Teillet s Métis Law In Canada also is an ongoing testament about the remarkable extent to which the place of the Métis in Canadian law has changed fundamentally since the early 1980s, an advancement for which Jean has played a central role. Dr. Arthur Ray South Africa, 2012 x

11 About the Author Jean Teillet, IPC Jean Teillet, IPC (B.F.A, L.L.B., L.L.M) is a partner in the law firm of Pape Salter Teillet LLP. She is called to the Bar in Ontario, Manitoba, NWT, BC and Yukon. She practices primarily in the field of aboriginal rights law with a particular emphasis on Métis rights law. Jean has acted as counsel for aboriginal groups in several leading Supreme Court of Canada aboriginal rights cases including Behn, Manitoba Métis Federation, Cunningham, Blais, Beckman, Haida, Taku, Paul, Delgamuukw and Pamajewon. She also acted as lead counsel for the Powleys at all levels of court in the landmark Métis harvesting rights case R. v. Powley. She is involved in negotiations of modern land claims agreements for First Nations and has been active at negotiation tables with respect to Métis rights. Jean has published many articles in various journals. She also speaks regularly at universities in Canada and internationally. Jean is currently the Vice-Chair of Indspire (formerly the National Aboriginal Achievement Foundation). She is a member of the Canadian Judicial Council Chairperson s Advisory Committee. She is a past vice-president and past treasurer of the Indigenous Bar Association of Canada. Lexpert ranks Ms. Teillet as a consistently recommended lawyer. Canadian Legal Expert 2013 ranks Ms. Teillet as a leading practitioner in aboriginal law. In 2002, Ms. Teillet was awarded the Law Society of Upper Canada s first Lincoln Alexander Award. In 2005, she was awarded the Aboriginal Justice Award by the Aboriginal Law Students Association of the Faculty of Law, University of Alberta. In 2007, the University of Windsor Faculty of Law established the Jean Teillet Access to Justice Scholarship. In 2011, she was named Indigenous People s Counsel ( IPC ) by the National Indigenous Bar Association of Canada. In 2012, Jean was awarded the Queen Elizabeth II Diamond Jubilee Medal. Ms. Teillet is a great grandniece of Louis Riel. xi

12 Credits & Back Issues Métis Law in Canada was originally published as the Métis Law Summary in The name was changed to Métis Law in Canada in The author would like to thank the many people who have contributed to Métis Law in Canada over the years including: Rick Salter, the late Arthur Pape, Jason Madden, Donna Tribe, Josephine Norris, Darcy Belisle, Arthur Ray, Gwynneth Jones, Frank Tough, Clément Chartier, Tony Belcourt, Guadalupe Jolicoeur and Ed Henderson. Cover Image From Earth to Sky is by Christi Belcourt. French translation, research and editorial assistance by Carly Teillet. Métis Law in Canada is available online at Please feel free to quote, copy and distribute with appropriate credit. If you wish to be on the mailing list, please contact us at About the Publisher - Pape Salter Teillet, LLP Pape Salter Teillet, LLP is a law firm with offices in Vancouver and Toronto. They practice primarily in the field of aboriginal rights law. The law firm was established by Arthur Pape and Rick Salter in the 1980s. Jean Teillet joined them in 1992 and has been a partner since Pape Salter Teillet has been at the forefront of aboriginal litigation and land claims negotiations. The firm has been actively involved in the negotiations of the Yukon Umbrella Agreement, the Nacho Nyak Dun Land Claims and Self-Government Agreements, the Tłį cho Agreement and is currently working on the Sto:lo Xwexwilmexw Treaty in BC. Pape Salter Teillet has acted for aboriginal clients in landmark litigation at the Supreme Court of Canada including: Sparrow, Guerin, Delgamuukw, Van der Peet, Pamajewon, Powley, Haida, Taku River, Manitoba Métis Federation, Cunningham and Moulton Contracting. The law firm assists aboriginal peoples with the negotiation of agreements on major developments that are taking place in their territories. Pape Salter Teillet also advises aboriginal peoples on the development and implementation of self-government. xii

13 Introduction Welcome to Métis Law in Canada. The subject of Métis law has grown dramatically since the late 1990s when the Métis Law Summary began. Each year now brings many new developments in Métis law. Not only has the volume of case law grown, Métis law has become a unique subset of aboriginal law. Because the Métis raise issues of identity on the individual, community and societal level, legal principles developed for Métis law are now being used in many other areas of law that are grappling with identity issues. Métis also raise issues of mobility, again at the individual, community and societal levels. Euro-Canadian law, which has developed largely out of a society that defines itself in terms of fixed boundaries in its concepts of identity, ownership, title, property, is being challenged by Métis cases. Métis Law in Canada therefore includes a discussion of these sociological and historical ideas. What s New in Métis Law in Canada in 2013 Did Canada breach its honour of the Crown duties in its implementation of the Manitoba Act, 1870? Manitoba Métis Federation v. Canada & Manitoba The Manitoba Métis Federation launched this court case in The Métis sought a declaration that the lands they were promised in the Manitoba Act, 1870 were not provided in accordance with the Crown s fiduciary and honour of the Crown obligations. They also sought a declaration that certain legislation passed by Manitoba that affected the implementation of the Manitoba Act was not within the jurisdiction of the Province of Manitoba. The case was dismissed at trial in The trial judge found that there was lengthy delay in implementing the land provisions of the Manitoba Act and that the delay was due to government error and inaction. However, he found that there was no fiduciary duty or a duty based on the honour of the Crown. The trial judge took the view that a fiduciary duty required proof that the Métis held the land collectively prior to Since the evidence showed that the Métis held their lands individually, their claim was fundamentally flawed. The trial judge also held that the claim was filed too late and was barred by limitation periods and the delay (laches). Finally, he denied the Manitoba Métis Federation standing. In effect, he held that the while the individual plaintiffs were capable of bringing the claim, the MMF was not. The Manitoba Court of Appeal rejected the trial judge s view that aboriginal title was essential to the fiduciary duty claim. But then found it unnecessary to make any decision with respect to the fiduciary duty claim. The Court of Appeal said the trial judge s findings of fact xiii

14 did not support any breach of the duty. They rejected any claim with respect to the honour of the Crown and held that the entire claim was moot because there was no live controversy. They upheld the trial judge s finding that the MMF had no standing. The Supreme Court of Canada handed down its reasons for judgment on March 8, They granted the MMF s appeal in part and held that the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown. The Supreme Court of Canada also granted the MMF standing and gave them costs throughout. Are Métis 'Indians'? Daniels 1 On January 8, 2013, Justice Phelan of the Federal Court Trial Division handed down his reasons for judgment in Daniels. The plaintiffs sought three declarations. First, a declaration that Métis are 'Indians' within the meaning of s. 91(24) of the Constitution Act, Section 91 is the section of the Constitution that lists the powers of the federal government. The 24 th head of power reads Indians, and Lands reserved for the Indians. The court held that Métis and non-status Indians are 'Indians' within the meaning of s. 91(24) and declared them to be under federal jurisdiction. The second declaration the plaintiffs sought was that Canada owes a fiduciary duty to Métis and nonstatus Indians. The third declaration sought was that Métis and non-status Indians have the right to be consulted. The court held that Canada was in a fiduciary relationship to Métis and non-status Indians because they are within federal jurisdiction. The court would not go so far as to say that there was a fiduciary duty and distinguished the fiduciary relationship from any duty. The court would not grant a declaration in this respect and also denied the third declaration saying the consultation duty arose in certain circumstances and was not a general duty at large. In attempting to define the Métis, the judge held that they are a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status. This definition conflicts with the definition of Métis handed down by the Supreme Court of Canada in Powley. It is a problematic definition that takes little to no account of the Métis of the Northwest, who are a people and define themselves according to their Métis heritage, not with their Indian heritage. The case has been appealed to the Federal Court of Appeal where it will be argued on October 29-31, Métis Settlement Identification Card not sufficient to prove Métis harvesting rights L Hirondelle 2 The question before the Alberta Court of Appeal was whether membership in a Métis Settlement is conclusive proof of an entitlement to 1 Daniels v. Canada, 2013 FC 6 2 L Hirondelle v. Alberta, [2013] A.J. No. 11 xiv

15 constitutional aboriginal rights? Alberta has a policy respecting Métis Harvesting in Alberta, which states that to qualify for aboriginal fishing rights, the applicant must satisfy the criteria in Powley. Mr. L Hirondelle went to a Fish and Wildlife Office, presented his Métis Settlement identification card, and requested a Métis domestic fishing licence. He was advised that further proof of Métis status would be required, and was denied the licence pending that proof. Mr. L Hirondelle then applied for judicial review, seeking an order quashing the decision to deny him a fishing licence. He also applied for a declaration that a Métis Settlements identification card is sufficient proof of Powley status. The chambers judge held that the relief sought was not available to the applicant. The Court of Appeal found that the chambers judge erred in concluding that judicial review was not available relief. The Court of Appeal held that Métis Settlement lists are not universal, because not all Métis in Alberta are land-based, and there are many persons with s. 35 Métis aboriginal rights that are not on those lists. The court noted that s. 35 requires an ancestral link to a historic Métis community, something that is not a necessary requirement for membership in a Métis Settlement. Powley does not create a rule that the government is only entitled to have one list of Métis status holders, which the government is required to use for all purposes. Notwithstanding what is written on his Métis Settlement identification card, Mr. L Hirondelle is not entitled to s. 35 status just because he is a member of a Métis Settlement. Leave to the Supreme Court of Canada was denied. Can Indians be members of the Métis Settlements? Cunningham 3 On July 22, 2011 the Supreme Court of Canada handed down its reasons for judgment in Cunningham. The Cunninghams registered as 'Indians' under the Indian Act 4 contrary to the Métis Settlements Act. 5 Their membership was revoked and they sought a declaration in court that the removal of their memberships violated their equality rights under s. 15 (equality) of the Charter of Rights and Freedoms. 6 The Supreme Court of Canada denied their claim. The court held that the purpose of the Métis Settlements Act was to provide a land base for the Métis that would then enhance and preserve their identity, culture and self-governance. This necessarily means drawing distinctions and excluding some people. Hunting & Mobility Hirsekorn 7 the Alberta Court of Queen s Bench 3 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2001 SCC 37; rev g 2009 ABCA 239 (CanLII) rev g Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2007 ABQB 517 (CanLII). 4 Indian Act, RSC 1985, c I-5 5 Métis Settlements Act, RSA 2000, c M-14 6 Section 15, Charter of Rights and Freedoms, Constitution Acr, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c R. v. Hirsekorn, [2011] A.J. No [AQB], rev g in part [2010] A.J. No [APC]. xv

16 partially overturned the trial judge. In applying the Powley test, the appeal judge upheld the trial judge s finding of fact that there was insufficient evidence of hunting in Blackfoot territory and that their hunting in that part of Alberta was the result of European influences. On July 4th 2013 the Alberta Court of Appeal handed down its reasons for judgment. It upheld the lower courts and found that there was no historic Métis community in southern Alberta or in the Cypress Hills at the time of effective control. The Court held that effective control was in 1874 and that the Métis were not in sufficient numbers in southern Alberta at that time. The Court rejected the submission that the site-specific area could be defined as the plains in central and southern Alberta. Leave to appeal to the Supreme Court of Canada has been sought by Mr. Hirsekorn. Aboriginal title William (Tsilhqot in Nation) 8 The BC Court of Appeal held that the Tsilhqot in Nation is the proper rights-bearing entity for an aboriginal title claim. The court declined to find aboriginal title, saying that the plaintiffs brought the case on a territorial claim basis whereas aboriginal title is site-specific. The court held that the planning and policies of British Columbia with respect to logging unjustifiably interfered with the aboriginal rights of the Tsilhqot in. Those aboriginal rights included the right to trade skins and pelts for a moderate livelihood and the right to capture wild horses. The Supreme Court of Canada will hear the appeal in November of Are there Métis in NB? Caissie 9 and Castonguay 10 Two more cases where the courts in New Brunswick have found that there is no historic Métis community in New Brunswick, no contemporary Métis community and that cards issued by the local groups belonging to the Congress of Aboriginal Peoples are insufficient to establish Métis rights. In both cases there was insufficient evidence to meet any part of the Powley test. The trial judges also rejected Mr. Caissie s claim to the defence of necessity and Mr. Castonguay s claim that he should be acquitted because he reasonably believed in a mistaken set of facts. The defence of necessity only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril. There was no evidence of such a risk in Mr. Caissie s case. The defence of mistaken facts was not available because the judge held that Mr. Castonguay knew or ought to have known that his card was not valid proof of Métis rights. 8 Tsilhqot in Nation v. Canada 2012 BCCA 285; rev g in part 2007 BCSC R. v. Caissie 2012 NBPC 1 10 R. v. Castonguay, 2012 NBJ. No xvi

17 No aboriginal right to hunt in a wildlife sanctuary Legrande 11 A status Indian (Legrande) and a Métis (Gauchier) from the Peavine Métis Settlement in Alberta shot a decoy moose on a resource road in a wildlife sanctuary. The judge found that there was no right of access to the sanctuary for hunting and that the defendants did not establish a prima facie infringement of their right to hunt. On that basis he did not need to consider whether any infringement was justified. No historic Métis community in San Clara, Manitoba Langan 12 Mr. Langan was charged with angling without a licence contrary to the Fisheries Regulations of Saskatchewan. Mr. Langan claimed his aboriginal right to fish for food as a Métis pursuant to s. 35 of the Constitution Act, The judge found that the Métis community that exists today in San Clara and environs was formed in 1906, after effective control in 1885, when Métis people moved from North Dakota. Finally the trial judge found that the requirement for a licence was a law of general application and that it did not create any personal or group distinction that could form the basis of a s. 15 claim of discrimination. Métis right to harvest wood without a permit Beer 13 Mr. Beer harvested wood for domestic purposes without a permit. The trial judge found that Métis have a right to harvest wood for domestic purposes. Disclosure in the case revealed that at the time of the offence Manitoba had no Métis harvesting policy, but that a policy had been adopted shortly afterward. The evidence showed that Manitoba had never consulted with the Métis about the policy, it was not published anywhere and in fact the Métis had no idea of its existence. Consultation with First Nation over Métis cabin in Park Smith s Landing First Nation v. Parks Canada Agency and the Fort Smith Métis Council 14 Parks Canada approved the Fort Smith Métis Council s application to build an elders cabin in Wood Buffalo National Park. Smith s Landing First Nation objected that the cabin was built without proper consultation. The cabin remains in the Park and the parties settled out of court pursuant to court-facilitated mediation and the matter was discontinued on consent. Incidental cabins O Sullivan Lake Outfitters 15 the Crown claimed that the Meshakes, members of the Aroland First Nation, built a cabin for a commercial 11 R. v. Legrande [2011] A.J. No R. v. Langan 2011 SLPC R. v. Beer [2011] M.J. No. 405; supplementary reasons [2012] M. J. No Smith s Landing First Nation v. Parks Canada Agency and the Fort Smith Métis Council, Federal Court docket # T R. v. O Sullivan Lake Outfitters Inc. [2011] 2 C.N.L.R xvii

18 purpose and not for personal use. The Crown also claimed that its laws and policies did not unjustifiably infringe on the treaty right. The defendants were charged under a draft policy for unlawfully constructing a building on public land without a work permit and unlawfully continuing activity while a stop work order was issued, all contrary to the Ontario Public Lands Act. 16 The court held that the cabin was part of the rights promised under Treaty 9 and that the permit requirement infringed those right rights. At the time of the construction activity the Ministry of Natural Resources had not consulted with the Aroland First Nation with respect to the intent and application of the draft policy, which was treated as in force by ministry staff. The court held that the work permit process had an adverse impact on people who are illiterate, whose second language is English and who would have to travel some 70 kilometers to the Ministry office. The court found that the cabin built by the Meshakes had a communal aspect in terms of the contributions in materials and labour by others, that it was built for the personal use of the Meshakes and their extended family and that the cabin was needed to exercise their rights to hunt, fish and trap in the area. The court upheld the finding of the Justice of the Peace that the cabin was for personal use and part of the treaty rights promised by Treaty 9. No Métis Nation Harvesting Card Paquette 17 Mr. Paquette possessed a Métis Nation of Ontario citizenship card but had been denied a Harvesters Card. Pursuant to a 2004 Agreement, Ontario does not charge MNO Harvest Card holders who are hunting within their traditional territories. Individuals without an MNO Harvest Card who claim Métis hunting rights must prove their rights pursuant to the Powley test. Paquette s genealogy showed that his claim to aboriginal ancestry came from Quebec and that his ancestors moved to Ontario after effective control. He provided no proof of an historic Métis community in the Sturgeon Falls area of Ontario. The judge found him guilty of hunting moose without a licence Order Ross River Dena 18 these were actions filed by Ross River Dena Council, an Indian band in the Yukon. The case management judge directed that the following issue could be decided as a threshold issue - whether the terms and conditions referred to in the 1870 Order were intended to have legal force and effect and give rise to obligations capable of being enforced. The case management judge held that the terms and conditions referred to in the 1870 Order for compensation for lands required for the purposes of settlement were not, at the time, 16 Public Lands Act, R.S.O. 1990, c. P R. v. Paquette, North Bay Court File No , (OCJ) 18 Ross River Dena Council v. Canada (Attorney General) [2012] Y.J. No. 1 xviii

19 intended to have enforceable legal effect reviewable by the court. The 1870 Order did not create a positive obligation on the Crown to settle claims for First Nation persons. Even if the relevant provision gave rise to legally enforceable obligations, those obligations were not fiduciary in nature. The band had not shown that there was a specific Indian interest in the claimed territory that was known to the government and was in the nature of a private law interest or that the government undertook to act in the band s best interests when exercising discretionary control over the territory. 19 On appeal, the issue was whether it was appropriate for the court to sever the threshold question. The Yukon Court of Appeal held that it was not. It was only appropriate to sever issues where it appeared efficiencies would result from having one issue determined in advance of others. To be suitable for severance, an issue had to be capable of being decided independently. The issue of the original Parliamentary intentions underlying the 1870 Order provisions, which was put before the Supreme Court, was not an independent issue. The question put forward was not decisive of any other issue and could not meaningfully advance the litigation. The 1870 Order could only be interpreted in light of the Crown and First Nations pre-existing relationship and the philosophical and jurisprudential precepts underlying Aboriginal title and rights. In trying to determine the issue on a preliminary basis, the judge considered evidence that went beyond the scope of interpreting the 1870 Order. The judge determined some issues based on incomplete evidence. The Supreme Court order was quashed. No tax exemptions for Métis elected officials under the Income Tax Act Bellrose 20 this was an appeal by Bellrose from the dismissal of his income tax reassessment appeals. The Métis Nation of Alberta was incorporated under the Societies Act, with the objectives of promoting the development, self-determination, constitutional and property rights of Métis in Alberta. Bellrose served as an elected official of MNA from In four of those years he claimed an income tax exemption on the basis that his role was equivalent to that of an elected officer of an incorporated municipality. The Minister of National Revenue disagreed and reassessed Bellrose for each of those four years. The Tax Court judge dismissed Bellrose s appeal despite finding that the MNA performed commendable services for Métis. However, the MNA was not providing municipal-like services and was not a municipality. There was no obligation on the judge s part to interpret the Income Tax Act 21 in a manner favourable to Bellrose as an aboriginal person. The Income Tax Act is not a treaty or a statute directly related to aboriginal peoples. 19 Ross River Dena Council v. Canada, 2013 YKCA 6 20 Bellrose v. Canada [2012] FCJ No 301 FCA 21 Income Tax Act, RSC 1985, c 1 xix

20 Individuals require authorization of aboriginal collective to assert rights in court Behn v. Moulton Contracting Ltd. 22 appeal by the defendants from an order striking portions of their statement of defence. Moulton was a logging company. The Behn defendants were members of the Fort Nelson First Nation, which is a signatory to Treaty 8. They blockaded the only access road to the permitted logging area. The Behn defendants were licensed to trap in the logging territory and argued that the plaintiff s licences and road permit were invalid because they were issued in breach of the Crown s duty to consult and infringed their Treaty right to hunt and trap. The Court of Appeal held that the judge was correct that the Behn defendants lacked standing and could not seek to avoid liability by attacking the licences and permit. Such an attack required authorization by the collective who are the proper rights holders of the treaty and constitutional rights. The defences were an impermissible collateral attack and an abuse of process. The Supreme Court of Canada upheld the lower courts on all points. 23 Harvesting Agreement between the Manitoba Métis Federation and the Province of Manitoba. The Harvesting Agreement with the Province of Manitoba recognizes that Métis have harvesting rights in a specified area. Individuals who hold a valid MMF Harvesters Card will be recognized as Métis rights-holders. Métis harvesting rights will be exercised consistently with the MMF s Métis Laws of the Hunt. No Proof of Connection to Métis Community; No Proof of Commercial Logging Blais (Ont) 24 The defendants, Michel Blais and his children, Matthew and Tracey were charged with unlawfully harvesting forest resources in a Crown forest without authority of a licence contrary to the Crown Forest Sustainability Act. The defendants defended themselves by claiming that they were Métis with a Métis right to commercially harvest timber. They reside near Sault Ste. Marie within the area covered by Powley. They claimed that the Crown breached a non-delegable duty to consult and negotiate with the representatives of the Métis community in and around Sault Ste. Marie to develop opportunities for members of that community in the local forest resources industry. They claimed this was a breach of the honour of the Crown and that the prosecution was an abuse of process. They also claimed their right to make full answer and defence under the Charter was infringed because the trial judge would not join their trial to a similar one involving 22 Moulton Contracting Ltd. v. British Columbia [2011] B.C.J. No (BCCA) 23 Behn v. Moulton Contracting [2013] S.C.J. No R. v. Blais (unreported, Ontario Court of Justice, May 2, 2013) xx

21 members of the Batchewana First Nation or to adjourn pending the result of that trial or to allow Batchewana to intervene. The defendants claimed that the Crown Forest Sustainability Act was inapplicable to their timber harvesting by virtue of the doctrine of interjurisdictional immunity. The Justice of the Peace found against them on all points. The court noted that Mr. Blais appeared to be motivated to claim Métis status in order to access forestry opportunities and for personal gain. There was no evidence of Métis community involvement in his forestry corporation and no evidence that Mr. Blais had any authority to act on behalf of the Métis community. There was no evidence that Mr. Blais had any ancestral connection to the community and he failed to establish his membership in the Sault Ste. Marie contemporary community. What We re Watching Here are some Métis cases that we are watching this year. They have been filed in court or argued, but with no decision as of our publication date in Chartrand v. the Queen (Tax Court of Canada) This case seeks tax relief for elected officials who work for Métis bodies that provide government functions. Peavine Métis Settlement v. Alberta (Minister of Energy) Peavine Settlement, in a claim filed in 2010, seeks a declaration that the Alberta government has a duty to consult with Peavine prior to posting Crown petroleum and natural gas leases and licences. Métis Settlements General Council v. Alberta This claim, filed in 2008, seeks a declaration that Alberta breached the terms of the Financial Agreement, the Accord, the Settlement Agreement, fiduciary duties and the Honour of the Crown by failing to complete or even undertake legislatively mandated funding reviews since 1993, including the duty to adjust the financial arrangements in light of prevailing circumstances. Enge & North Slave Métis Association v Mandeville 25 - In a judicial review of a decision of the Government of the Northwest Territories (GNWT) to allow two aboriginal groups (the Tłį cho and the Yellowknives) to have a limited harvest of the Bathurst Caribou herd in a no hunting zone while expressly prohibiting the North 25 Enge & NSMA v Mandeville, SCNWT Court File No. S-1-CV xxi

22 Slave Métis Association (NSMA) from hunting in that zone. In 2009, the GNWT imposed a no hunting zone on an area north of Great Slave Lake. Then, over a period of two years, the GNWT allowed a limited aboriginal harvest of 300 +/- 30 Bathurst caribou to be harvested in the zone. There are harvesting authorization cards for the limited hunt. GNWT told NSMA that it would not consult with them because they held only asserted and not proven aboriginal rights. GNWT said that until Canada recognized NSMA as an aboriginal group for the purposes of negotiation of land claims, the GNWT could not consult with them about their aboriginal rights. GNWT did consult with the NSMA about the Bluenose East caribou herd, which lies to the northwest of the Bathurst herd range. The Commissioner of the NWT v. Clem Paul and Canada (Attorney General) Mr. Paul is charged with trespass for unlawful occupation of Commissioner s land in the NWT. In 2005, Mr. Paul built a cabin on Prosperous Lake just outside Yellowknife. Mr. Paul defended and counterclaimed against Canada claiming aboriginal title in the cabin area and Yellowknife Game Preserve. He claims shared exclusivity of title and an unfettered right to use and occupy that land, including the right to build a cabin. He also claims damages for lost property rights, accounting for resource royalties, Charter breaches, and a breach of the UN Declaration on the Rights of Indigenous Peoples. Mr. Paul claims to represent the Treaty 11 Métis. He is seeking an advanced costs order of $2.8 million and has filed a motion to have certain questions of law determined by the court in advance of a hearing on the merits. Specifically Mr. Paul wants advance court determinations as to the effect of the Tłį cho Agreement on his asserted Métis rights and title. Métis Law in Canada is divided into two parts. Part One contains a discussion about the basic theory of aboriginal rights and title as it applies to the Métis. This part also contains a sociological and historical analysis of the Métis Nation of the North West. Part Two contains a summary of Métis case law. Métis Law in Canada deals primarily with rights issues. There are many civil law actions where the Métis are either plaintiffs or defendants. These civil cases are not dealt with in Métis Law in Canada. xxii

23 Chapter One: Who are the Métis? 1.1 The Métis of the Northwest are an aboriginal people The Métis are one of the aboriginal peoples of Canada within the meaning of s. 35(2) of the Constitution Act, Section 35 reads as follows: s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada. 1 This definition is for the purposes of the Constitution Act. However, Métis are also aboriginal people for the purposes of the common law. As noted by the Manitoba Court of Appeal in Manitoba Métis Federation v. Canada, the inclusion of the Métis in s. 35 is the recognition, not the creation, of the Métis as an aboriginal people. 2 The Supreme Court of Canada in Cunningham held that, The Métis considered themselves as one of three Aboriginal groups in Canada, but this was not recognized until the Constitution Act, Unlike Indians, however, they enjoyed no land base from which to strengthen their identity and culture or govern themselves. Their aboriginality, in a word, was not legally acknowledged or protected The history of the Métis is one of struggle for recognition of their unique identity as the mixed race descendants of Europeans and Indians. Caught between two larger identities and cultures, the Métis have struggled for more than two centuries for recognition of their own unique identity, culture and governance. The constitutional amendments of 1982 signal that that time has come for recognition of the Métis as a unique and distinct people. 3 In Powley, the Supreme Court of Canada held that the Métis have full status as distinctive rights-bearing peoples, a characteristic they share with the Indian and Inuit peoples of Canada. 4 Unfortunately, a Federal Court Trial Decision of early 2013, Daniels v. Canada, 5 confuses the Métis definition clarity that has gradually been achieved in the Powley, Manitoba Métis Federation and Cunningham decisions. Daniels defines Métis as a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status. The Daniels decision ignores the Supreme Court of Canada findings that the Métis of the Northwest are a distinct aboriginal people and lumps Métis into a large group with non-status Indians. 1 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 2 Manitoba Métis Federation, (CA) supra, paras Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2001 SCC 37, paras. 66 and R. v. Powley, (2003) SCC 43 at para Daniels v. Canada, 2013 FC 6 1-1