Ipsofactoj.com: International Cases [2004] Part 10 Case 11 [SCC]


SUPREME COURT OF CANADA

Coram

Blais

- vs -

Regina

McLACHLIN CJ

ARBOUR J

BASTARACHE J

BINNIE J

DESCHAMPS J

GONTHIER J

IACOBUCCI J

LEBEL J

MAJOR J

19 SEPTEMBER 2003


Judgment

McLachlin CJ

(delivered the judgment of the court)

I. INTRODUCTION

  1. This case raises the issue of whether the Métis are "Indians" under the hunting rights provisions of the Manitoba Natural Resources Transfer Agreement, incorporated as Schedule (1) to the Constitution Act, 1930 (the "NRTA"). We conclude that they are not.

  2. On February 10, 1994, Ernest Blais and two other men went hunting for deer in the District of Piney, in the Province of Manitoba. At that time, deer hunting was prohibited in that area by the terms of the wildlife regulations passed pursuant to The Wildlife Act of Manitoba, R.S.M. 1987, c. W130, s. 26, as amended by S.M. 1989-90, c. 27, s. 13. Mr. Blais was charged with unlawfully hunting deer out of season.

  3. The requisite elements of the offence were conceded at trial. However, the appellant asserted two defences that would have entitled him to acquittal. Both defences were based on his identity as a Métis.

    • First, the appellant argued that, as a Métis, he had an aboriginal right to hunt for food under s. 35 of the Constitution Act, 1982.

    • Second, he claimed a constitutional right to hunt for food on unoccupied Crown lands by virtue of para. 13 of the NRTA.

  4. The parties agreed at trial, and continue to agree, that the appellant was hunting for food for himself and for the members of his immediate family, and that he was hunting on unoccupied Crown land. They further agree that the appellant is Métis.

  5. The trial judge rejected both of the appellant's defences and entered a conviction on August 22, 1996 ([1997] 3 C.N.L.R. 109). The appellant appealed the conviction to the Manitoba Court of Queen's Bench ([1998] 4 C.N.L.R. 103) and to the Manitoba Court of Appeal ([2001] 3 C.N.L.R. 187). His appeals were based solely on the defence that, as a Métis, he is immune from conviction under the Wildlife Act regulations in so far as they infringe on his right to hunt for food under para. 13 of the NRTA. Both courts rejected this defence and upheld the appellant's conviction.

  6. Because we agree that para. 13 of the NRTA cannot be read to include the Métis, we would dismiss this appeal. We make no findings with respect to the existence of a Métis right to hunt for food in Manitoba under s. 35 of the Constitution Act, 1982, since the appellant chose not to pursue this defence.

    II. ANALYSIS

  7. Mr. Blais is a "Métis", a member of a distinctive community descended from unions between Europeans and Indians or Inuit. This is agreed by the parties and was confirmed by the trial judge. There is no basis for disturbing this finding, particularly as the appellant satisfies the criteria of self-identification, ancestral connection, and community acceptance set out in R. v Powley, 2003 SCC 43. The question is whether, as a Métis, he is entitled to benefit from this hunting provision for "Indians".

  8. Paragraph 13 of the NRTA reads:

    In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

    This provision consists of a stipulation and an exception. The stipulation is that "the laws respecting game in force in the Province from time to time shall apply to the Indians" (emphasis added). The exception is the continuing right of the Indians to hunt, trap and fish for food on unoccupied Crown lands "provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access" (emphasis added).

  9. The issue, as stated, is whether the exception addressed to "Indians" applies to the Métis. As we explain in Powley, supra, at para. 10, the term "Métis" does not designate all individuals with mixed heritage; "rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears". Members of Métis communities in the prairie provinces collectively refer to themselves as the "Métis Nation", and trace their roots to the western fur trade: Report of the Royal Commission on Aboriginal Peoples (1996), vol. 4, at p. 203 ("RCAP Report"). Other Métis communities emerged in eastern Canada: RCAP Report; see Powley, at para. 10. The sole question before us is whether the appellant, being a Métis, is entitled to benefit from the protection accorded to "Indians" in the NRTA. He can claim this benefit only if the term "Indians" in para. 13 encompasses the Métis.

    A. An Overview of the NRTA

  10. Before embarking on our analysis of the meaning of "Indians" in para. 13, it may be useful to set out the history of the NRTA in general and para. 13 in particular. The three NRTAs arose as part of an effort to put the provinces of Alberta, Manitoba and Saskatchewan on an equal footing with the other Canadian provinces by giving them jurisdiction over and ownership of their natural resources. Paragraph 1 of each of these Agreements reads in part:

    In order that the Province may be in the same position as the original Provinces of Confederation are in virtue of section one hundred and nine of the Constitution Act, 1867, the interest of the Crown in all Crown lands, mines, minerals (precious and base) and royalties derived therefrom within the Province, and all sums due or payable for such lands, mines, minerals or royalties, shall .... belong to the Province, subject to any trusts existing in respect thereof, and to any interest other than that of the Crown in the same, and the said lands, mines, minerals and royalties shall be administered by the Province for the purposes thereof ...; any payment received by Canada in respect of any such lands, mines, minerals or royalties before the coming into force of this agreement shall continue to belong to Canada .... it being the intention that .... Canada shall not be liable to account to the Province for any payment made in respect of any of the said lands, mines, minerals or royalties before the coming into force of this agreement, and that the Province shall not be liable to account to Canada for any such payment made thereafter. 

    [emphasis added]

    In other words, the Agreements were largely concerned with the transfer of contractual and related liabilities from Canada to the provinces. Indeed, early litigation relating to the NRTAs involved precisely this: see, e.g., Spooner Oils Ltd. v Turner Valley Gas Conservation Board, [1933] S.C.R. 629.

  11. In the midst of these transfer provisions, three out of 28 paragraphs in the Manitoba NRTA come under the separate heading "Indian Reserves". Paragraph 13 is one of them. These paragraphs are identical to paras. 10-12 of the Alberta and Saskatchewan NRTAs. The three provisions indicate

    • that, notwithstanding the transfer of control over land to Manitoba, responsibility for administering Indian reserves will remain with the federal Crown (para. 11);

    • that the rules set out in the March 24, 1924 agreement between Canada and Ontario will apply to these Indian reserves and to any others subsequently created in the Province (para. 12); and

    • that provincial hunting and fishing laws will apply to Indians except that these laws shall not prevent Indians from hunting and fishing for food on unoccupied Crown lands (para. 13).

  12. The broad purpose of the NRTA was to transfer control over land and natural resources to the three western provinces. The first two of the three provisions on "Indian Reserves" were included to specify that the administration of these reserves would remain with the federal government notwithstanding the general transfer. However, the provincial government would have the right and the responsibility to legislate with respect to certain natural resource matters affecting Indians, including hunting. Section 88 of the Indian Act, introduced in 1951 (S.C. 1951, c. 29), makes general provincial laws applicable to Indians in the absence of conflicting treaties or Acts of Parliament. By enacting para. 13, the federal government specified that hunting and fishing by Indians could be the subject of provincial regulation, while seeking to ensure that its pre-existing obligations towards the Indians with respect to hunting rights would be fulfilled.

  13. Paragraph 13 both affirmed and limited the Province's regulatory power: Frank v The Queen, [1978] 1 S.C.R. 95, at p. 100; Moosehunter v The Queen, [1981] 1 S.C.R. 282, at p. 285; R. v Horseman, [1990] 1 S.C.R. 901, at pp. 931-32; R. v Badger, [1996] 1 S.C.R. 771, at para. 45. It affirmed the Province's power to regulate hunting for conservation purposes (see Badger, supra, at para. 71) but it carved out a protected space for hunting by Indians on unoccupied Crown lands and on lands to which the Indians have a right of access. Other potential sources of aboriginal hunting rights exist outside of the para.13 framework, such as time-honoured practices recognized by the common law and protected by s. 35 of the Constitution Act, 1982. However, because Mr. Blais grounds his claim exclusively in para. 13 of the NRTA, we must confine our reasoning to this provision.

    B. The Regulatory Context

  14. The Province of Manitoba has used its regulatory power to enact laws designed to protect its wildlife population: The Wildlife Act. The regulations prescribe when, where, how and what species people can hunt. Where there is not an absolute prohibition on hunting a particular species, Manitoba has instituted seasonal restrictions and a system of licensing to keep track of the date, location, kind and number of animals killed.

  15. Seasonal restrictions and licensing requirements for deer hunting under the Manitoba Wildlife Act currently do not apply to members of Indian bands. Mr. Blais was arrested and charged with unlawfully hunting deer out of season because he is not a member of an Indian band, but a member of the Manitoba Métis community. The position of the Manitoba government is that para. 13 of the NRTA does not exempt the Métis from the obligation to comply with the deer-hunting regulations. Mr. Blais says that it does.

    C. Guiding Principles and Application

  16. Against this background, we turn to the issue before us: whether "Indians" in para. 13 of the NRTA include the Métis. The starting point in this endeavour is that a statute - and this includes statutes of constitutional force - must be interpreted in accordance with the meaning of its words, considered in context and with a view to the purpose they were intended to serve: see E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, "Any interpretation that divorces legal expression from the context of its enactment may produce absurd results" (The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 290.

  17. The NRTA is a constitutional document. It must therefore be read generously within these contextual and historical confines. A court interpreting a constitutionally guaranteed right must apply an interpretation that will fulfill the broad purpose of the guarantee and thus secure "for individuals the full benefit of the [constitutional] protection": R. v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. "At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the [constitutional provision] was not enacted in a vacuum, and must therefore .... be placed in its proper linguistic, philosophic and historical contexts": Big M Drug Mart, supra, at p. 344. This is essentially the approach the Court used in 1939 when the Court examined the historical record to determine whether the term "Indians" in s. 91(24) of the British North America Act includes the Inuit (Reference as to Whether "Indians" in s. 91 (24) of the British North America Act, 1867 (U.K.), includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104).

  18. Applied to this case, this means that we must fulfill - but not "overshoot" - the purpose of para. 13 of the NRTA. We must approach the task of determining whether Métis are included in "Indians" under para. 13 by looking at the historical context, the ordinary meaning of the language used, and the philosophy or objectives lying behind it.

    (1) Historical Context

  19. The NRTA was not a grant of title, but an administrative transfer of the responsibilities that the Crown acknowledged at the time towards "the Indians within the boundaries" of the Province - a transfer with constitutional force. In ascertaining which group or groups the parties to the NRTA intended to designate by the term "Indians", we must look at the prevailing understandings of Crown obligations and the administrative regimes that applied to the different Aboriginal groups in Manitoba. The record suggests that the Métis were treated as a different group from "Indians" for purposes of delineating rights and protections.

  20. The courts below found, and the record confirms, that the Manitoba Métis were not considered wards of the Crown. This was true both from the perspective of the Crown, and from the perspective of the Métis. Wright J. summarized his findings on this point as follows, at paras. 18-19:

    The nature of the negotiations in the 1920's, as reflected in correspondence and other evidence introduced at the trial of the appellant, shows that protection was the fundamental concern of the federal authorities, being consistent with the Crown's obligations to those who automatically or voluntarily became subject to, or beneficiaries of, the Indian Act.

    Nowhere is there any suggestion [that] the Métis, as a people, sought or were regarded as being in need of this kind of protection. On the contrary, the evidence demonstrates the Métis  to be independent and proud of their identity separate and apart from the Indians.

  21. The difference between Indians and Métis appears to have been widely recognized and understood by the mid-nineteenth century. In 1870, Manitoba had a settled population of 12,228 inhabitants, almost 10,000 of whom were either English Métis or French Métis. Government actors and the Métis themselves viewed the Indians as a separate group with different historical entitlements; in fact, many if not most of the members of the Manitoba government at the time of its entry into Confederation were themselves Métis.

  22. The Manitoba Act, 1870 used the term "half-breed" to refer to the Métis, and set aside land specifically for their use: Manitoba Act, 1870, S.C. 1870, c. 3 s. 31 (reprinted in R.S.C. 1985. App. II, No. 8). While s. 31 states that this land is being set aside "towards the extinguishment of the Indian Title to the lands in the Province", this was expressly recognized at the time as being an inaccurate description. Sir John A. Macdonald explained in 1885:

    Whether they [the Métis] had any right to those lands or not was not so much the question as it was a question of policy to make an arrangement with the inhabitants of the Province .... 1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, for the half-breeds did not allow themselves to be Indians.

    (House of Commons Debates, July 6, 1885, at p. 3113, cited in T.E. Flanagan, "The History of Métis  Aboriginal Rights: Politics, Principle and Policy" (1990), 5 C.J.L.S. 71, at p. 74)

  23. Other evidence in the record corroborates this view. For example, at trial, the expert witness Dr. G. Ens attached to his report a book written by Lieutenant-Governor A. Morris entitled The Treaties of Canada with the Indians of Manitoba and the North-West Territories, published in 1880. The book includes an account of negotiations between the Governor and an Indian Chief who expresses the concern that his mixed-blood offspring might not benefit from the proposed treaty. The Governor explains, at p. 69:

    I am sent here to treat with the Indians. In Red River, where I came from, and where there is a great body of Half-breeds, they must be either white or Indian. If Indians, they get treaty money; if the Half-breeds call themselves white, they get land.

    This statement supports the view that Indians and Métis were widely understood as distinct groups for the purpose of determining their entitlements vis-ŕ-vis the colonial administration.

  24. It could be argued that the ability of individual Métis to identify themselves with Indian bands and to claim treaty rights on this basis weighs against a view of the two groups as entirely distinct. However, the very fact that a Métis person could "choose" either an Indian or a white identity supports the view that a Métis person was not considered Indian in the absence of an individual act of voluntary association.

  25. The Canadian government's response to an 1877 petition from a group of Métis further illustrates the perceived difference between the Indians and the Métis, and the exclusion of the Métis from the purview of Indian treaties. The Métis petitioners requested a grant of farming implements and seeds, and the relaxed enforcement of game laws to enable them to recover economically from the small-pox epidemic of 1870. David Laird, the Lieutenant-Governor of the North-West Territories, responded to the petition. He concluded by declaring:

    I can assure you that the Government feel[s] a kindly interest in your welfare, and it is because they desire to see you enjoying the full franchise and property rights of British subjects, and not laboring under the Indian state of pupilage, that they have deemed it for the advantage of half-breeds themselves that they should not be admitted to the Indian treaties.

    (W.L. Morton, ed., Manitoba: The Birth of a Province (1984), vol. I, at p. 23)

    Without commenting on the motivations underlying the government's policy or on its ultimate wisdom, we take note of the clear distinction made between Indians and "half-breeds", and the fundamentally different perception of the government's relationship with and obligations towards these two groups. We also note that counsel for the intervener, the Métis National Council, told the Court of Appeal: "the Métis want to be `Indian' under the NRTA, but for no other purpose" (para. 75).

  26. Placing para. 13 in its proper historical context does not involve negating the rights of the Métis. Paragraph 13 is not the only source of the Crown's or the Province's obligations towards Aboriginal peoples. Other constitutional and statutory provisions are better suited, and were actually intended, to fulfill this more wide-ranging purpose. The sole issue before us is whether the term "Indians" in the NRTA includes the Métis. The historical context of the NRTA suggests that it does not.

    (2) Language

  27. The common usage of the term "Indian" in 1930 also argues against a view of this term as encompassing the Métis. Both the terms "Indian" and "half-breed" were used in the mid-nineteenth century. Swail J. cites a North American census prepared by the Hudson's Bay Company in 1856-57 (pp. 146-47). The census records 147,000 "Indians", and breaks this down into various groups, including "The Plain Tribes", "The Esquimaux", "Indians settled in Canada", and so forth. A separate line indicates the number of "Whites and half-breeds in Hudson's Bay Territory", which is estimated at 11,000, for a total of 158,000 "souls". This document illustrates that the "Whites and half-breeds" were viewed as an identifiable group, separate and distinct from the Indians.

  28. The Red River Métis distinguished themselves from the Indians. For example, the successive Lists of Rights prepared by Métis leaders at the time of the creation of the Province of Manitoba excluded "the Indians" from voting. This provision could not plausibly have been intended to disenfranchise the Métis, who were the authors of the Lists and the majority of the population. The Third and Fourth Lists of Rights emphasized the importance of concluding treaties "between Canada and the different Indian tribes of the Province," with the "advice and cooperation of the Local Legislature" (appellant's record, at pp. 272 and 275). The Local Legislature was, at that time, a Métis-dominated body, underscoring the Métis' own view of themselves and the Indians as fundamentally distinct.

  29. There might not have been absolute consistency in the use of the terms "Indian" and "half-breed", and there appears to have been some mobility between the two groups. However, as evidenced by the historical documents statement cited above, the prevailing trend was to identify two distinct groups and to differentiate between their respective entitlements. Dr. Ens indicated in his report: "By 1850 `Half-Breed' was the most frequently used term among English-speaking residents of the North West to refer to all persons of mixed ancestry. It was a term that clearly differentiated between Indian and Métis  populations" (respondent's record, at p. 176). At trial, the Appellant's expert, Dr. Shore, could not cite any source in which the Canadian government used the term "Indian" to refer to all Aboriginal peoples, including the Métis.

  30. This interpretation is supported by the location of para. 13 in the NRTA itself. Quite apart from formal rules of statutory construction, common sense dictates that the content of a provision will in some way be related to its heading. Paragraph 13 falls under the heading "Indian Reserves." Indian reserves were set aside for the use and benefit of Status Indians, not for the Métis. The placement of para. 13 in the part of the NRTA entitled "Indian Reserves", along with two other provisions that clearly do not apply to the Métis, supports the view that the term "Indian" as used throughout this part was not seen as including the Métis. This placement weighs against the argument that we should construe the term "Indians" more broadly than otherwise suggested by the historical context of the NRTA and the common usage of the term at the time of the NRTA's enactment.

  31. We find no basis in the record for overturning the lower courts' findings that, as a general matter, the terms "Indian" and "half-breed" were used to refer to separate and distinguishable groups of people in Manitoba from the mid-19th century through the period in which the NRTA was negotiated and enacted.

    (3) The NRTA's Objectives

  32. The purpose of para. 13 of the NRTA is to ensure respect for the Crown's obligations to "Indians" with respect to hunting rights. It was enacted to protect the hunting rights of the beneficiaries of Indian treaties and the Indian Act in the context of the transfer of Crown land to the provinces. It took away the right to hunt commercially while protecting the right to hunt for food and expanding the territory upon which this could take place: see Frank, supra, at p. 100; Moosehunter, supra, at p. 285; Horseman, supra, at pp. 931-32; and Badger, supra, at para. 45. Wright J. put it thus, at para. 8:

    The NRTA was entered into between the federal government and each of the Provinces of Manitoba, Saskatchewan and Alberta .... [Its] primary purpose was to transfer Crown lands, with the resources associated, from Canada to the Provinces concerned. Section 13 in the Manitoba agreement .... was included to enable Manitoba to pass laws respecting game and fish which would apply to Indians .... The exclusion in s. 13 was aimed to protect existing Indian rights to hunt, trap and fish on unoccupied Crown lands or any other lands to which the Indians had a right of access. Any such rights arose as a result of an Aboriginal historic base or because they were established or confirmed by treaty.

    Manitoba would have the authority to pass laws respecting game and fish that would apply to all hunting and fishing activities in the province, including the activities of Indians. The exception was that Indians, a subset of the population with a particular historical relationship to the Crown, would not thereby be deprived of certain specified hunting and fishing rights.

  33. The protection accorded by para. 13 was based on the special relationship between Indians and the Crown. Underlying this was the view that Indians required special protection and assistance. Rightly or wrongly, this view did not extend to the Métis. The Métis were considered more independent and less in need of Crown protection than their Indian neighbours, as Wright J. confirmed. Shared ancestry between the Métis and the colonizing population, and the Métis' own claims to a different political status than the Indians in their Lists of Rights, contributed to this perception. The stark historic fact is that the Crown viewed its obligations to Indians, whom it considered its wards, as different from its obligations to the Métis, who were its negotiating partners in the entry of Manitoba into Confederation.

  34. This perceived difference between the Crown's obligations to Indians and its relationship with the Métis was reflected in separate arrangements for the distribution of land. Different legal and political regimes governed the conclusion of Indian treaties and the allocation of Métis scrip. Indian treaties were concluded on a collective basis and entailed collective rights, whereas scrip entitled recipients to individual grants of land. While the history of scrip speculation and devaluation is a sorry chapter in our nation's history, this does not change the fact that scrip was based on fundamentally different assumptions about the nature and origins of the government's relationship with scrip recipients than the assumptions underlying treaties with Indians.

  35. The historical context of the NRTA, the language of the section, and the purpose that led to its inclusion in the Constitution Act, 1930 support the lower courts' conclusion that para. 13 does not encompass the Métis.

    D. Appellant's Counter-Arguments

    (1) Continuity of Language

  36. The appellant asks us to impose a "continuity of language" requirement on the Constitution as a whole in order to support his argument that the term "Indians" in the NRTA includes the Métis. We do not find this approach persuasive. To the contrary, imposing a continuity requirement would lead us to conclude that "Indians" and "Métis" are different, since they are separately enumerated in s. 35(2) of the Constitution Act, 1982. We emphasize that we leave open for another day the question of whether the term "Indians" in s. 91(24) of the Constitution Act, 1867 includes the Métis - an issue not before us in this appeal.

    (2) The Ambiguity Principle

  37. In the absence of compelling evidence that the term "Indians" in para. 13 includes the Métis, the appellant invokes the principle that ambiguities should be resolved in favour of Aboriginal peoples: see Nowegijick v The Queen, [1983] 1 S.C.R. 29, at p. 36; R. v Sutherland, [1980] 2 S.C.R. 451, at p. 464; see also Mitchell v Peguis Indian Band, [1990] 2 S.C.R. 85, per La Forest J., at pp. 142-43 (suggesting refinements to this principle). This principle is triggered when there are doubts about the most fitting interpretation of the provision in question. In such cases, a generous and liberal interpretation is to be preferred over a narrow and technical one: Nowegijick, supra.

  38. The ambiguity principle does not assist the appellant in this case. The historical documentation is sufficient to support the view that the term "Indians" in para. 13 of the NRTA was not meant to encompass the Métis. Nor do we find relevant the respondent's counter-argument that the ambiguity principle precludes extending the protection of para. 13 to the Métis because this would "dilute" the value of Indian hunting rights in Manitoba. If "Indians" in para. 13 includes the Métis, then such an interpretation will prevail whether or not "dilution" results.

    (3) The "Living Tree" Principle

  39. We decline the appellant's invitation to expand the historical purpose of para. 13 on the basis of the "living tree" doctrine enunciated by Viscount Sankey with reference to the 1867 British North America Act: Edwards v Attorney-General for Canada, [1930] A.C. 124, at p. 136. The appellant, emphasizing the constitutional nature of para. 13, argues that this provision must be read broadly as providing solutions to future problems. He argues that, regardless of para. 13s original meaning, contemporary values, including the recognition of the Crown's fiduciary duty towards Aboriginal peoples and general principles of restitutive justice, require us to interpret the word "Indians" as including the Métis.

  40. This Court has consistently endorsed the living tree principle as a fundamental tenet of constitutional interpretation. Constitutional provisions are intended to provide "a continuing framework for the legitimate exercise of governmental power": Hunter v Southam Inc., [1984] 2 S.C.R. 145, per Dickson J. (as he then was), at p. 155. But at the same time, this Court is not free to invent new obligations foreign to the original purpose of the provision at issue. The analysis must be anchored in the historical context of the provision. As emphasized above, we must heed Dickson J.'s admonition "not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore .... be placed in its proper linguistic, philosophic and historical contexts": Big M Drug Mart, supra, at p. 344; see Côté, supra, at p. 265. Dickson J. was speaking of the Charter, but his words apply equally to the task of interpreting the NRTA. Similarly, Binnie J. emphasized the need for attentiveness to context when he noted in R. v Marshall, [1999] 3 S.C.R. 456, at para. 14, that "`[g]enerous' rules of interpretation should not be confused with a vague sense of after-the-fact largesse." Again the statement, made with respect to the interpretation of a treaty, applies here.

  41. We conclude that the term "Indians" in para. 13 of the NRTA does not include the Métis, and we find no basis for modifying this intended meaning. This in no way precludes a more liberal interpretation of other constitutional provisions, depending on their particular linguistic, philosophical and historical contexts.

    III. CONCLUSION

  42. We find no reason to disturb the lower courts' findings that neither the Crown nor the Métis understood the term "Indians" to encompass the Métis in the decades leading up to and including the enactment of the NRTA. Paragraph 13 does not provide a defence to the charge against the appellant for unlawfully hunting deer out of season. We do not preclude the possibility that future Métis defendants could argue for site-specific hunting rights in various areas of Manitoba under s. 35 of the Constitution Act, 1982, subject to the evidentiary requirements set forth in Powley, supra. However, they cannot claim immunity from prosecution under the Manitoba wildlife regulations by virtue of para. 13 of the NRTA.

  43. The appeal is dismissed. Each party shall bear its own costs.

  44. The constitutional question is answered as follows:

    Is the appellant Ernest Lionel Joseph Blais, being a Métis, encompassed by the term "Indians" in para. 13 of the Natural Resources Transfer Agreement, 1930, as ratified by the Manitoba Natural Resources Act, (1930) 20-21 Geo. V, c. 29 (Can.) and confirmed by the Constitution Act (1930), 20-21 Geo. V, c. 26 (U.K.), and therefore rendering s. 26 of the Wildlife Act of Manitoba unconstitutional to the extent that it infringes upon the appellant's right to hunt for food for himself and his family?

    Answer: No.

    APPENDIX A

    Relevant Constitutional and Statutory Provisions

    Constitution Act, 1930

    13.

    Manitoba - Memorandum of Agreement

    In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

    The Wildlife Act, R.S.M. 1987, c. W130

    26.

    No person shall hunt, trap, take or kill or attempt to trap, take or kill a wild animal during a period of the year when the hunting, trapping, taking or killing of that species or type of wild animal is either prohibited or not permitted by the regulations.

    * * * * * * * * * *

    Regina

    - vs -

    Powley


    I. INTRODUCTION

  45. This case raises the issue of whether members of the Métis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under the s. 35 of the Constitution Act, 1982. We conclude that they do.

  46. On the morning of October 22, 1993, Steve Powley and his son, Roddy, set out hunting. They headed north from their residence in Sault Ste. Marie, and at about 9 a.m., they shot and killed a bull moose near Old Goulais Bay Road.

  47. Moose hunting in Ontario is subject to strict regulation. The Ministry of Natural Resources ("MNR") issues Outdoor Cards and validation stickers authorizing the bearer to harvest calf moose during open season. People wishing to harvest adult moose must enter a lottery to obtain a validation tag authorizing them to hunt either a bull or a cow in a particular area, as specified on the tag. The number of tags issued for a given season depends on the calculations of MNR biologists, who estimate the current adult moose population and the replacement rate for animals removed from the population. The validation tag requirement and seasonal restrictions are not enforced against Status Indians, and the MNR does not record Status Indians' annual harvest. (See MNR Interim Enforcement Policy, May 28, 1991.)

  48. After shooting the bull moose near Old Goulais Bay Road, Steve and Roddy Powley transported it to their residence in Sault Ste. Marie. Neither of them had a valid Outdoor Card, a valid hunting licence to hunt moose, or a validation tag issued by the MNR. In lieu of these documents, Steve Powley affixed a handwritten tag to the ear of the moose. The tag indicated the date, time, and location of the kill, as required by the hunting regulations. It stated that the animal was to provide meat for the winter. Steve Powley signed the tag, and wrote his Ontario Métis and Aboriginal Association membership number on it.

  49. Later that day, two conservation officers arrived at the Powleys' residence. The Powleys told the officers they had shot the moose. One week later, the Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act, R.S.O. 1990, c. G-I. They both entered pleas of not guilty.

  50. The facts are not in dispute. The Powleys freely admit that they shot, killed, and took possession of a bull moose without a hunting license. However, they argue that, as Métis, they have an aboriginal right to hunt for food in the Sault Ste. Marie area that cannot be infringed by the Ontario government without proper justification. Because the Ontario government denies the existence of any special Métis right to hunt for food, the Powleys argue that subjecting them to the moose hunting provisions of the Game and Fish Act violates their rights under s. 35(1) of the Constitution Act, 1982, and cannot be justified.

  51. The trial court, Superior Court, and Court of Appeal agreed with the Powleys. They found that the members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food that is infringed without justification by the Ontario hunting regulations. Steve and Roddy Powley were therefore acquitted of unlawfully hunting and possessing the bull moose. Ontario appeals from these acquittals.

  52. The question before us is whether ss. 46 and 47(1) of the Game and Fish Act, which prohibit hunting moose without a licence, unconstitutionally infringe the respondents' aboriginal right to hunt for food, as recognized in s. 35(1) of the Constitution Act, 1982.

    II. ANALYSIS

  53. Section 35 of the Constitution Act, 1982 provides:

    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.

  54. The term "Métis" in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears. Métis communities evolved and flourished prior to the entrenchment of European control, when the influence of European settlers and political institutions became pre-eminent. The Royal Commission on Aboriginal Peoples describes this evolution as follows:

    Intermarriage between First Nations and Inuit women and European fur traders and fishermen produced children, but the birth of new Aboriginal cultures took longer. At first, the children of mixed unions were brought up in the traditions of their mothers or (less often) their fathers. Gradually, however, distinct Métis cultures emerged, combining European and First Nations or Inuit heritages in unique ways. Economics played a major role in this process. The special qualities and skills of the Métis population made them indispensable members of Aboriginal/non-Aboriginal economic partnerships, and that association contributed to the shaping of their cultures .... As interpreters, diplomats, guides, couriers, freighters, traders and suppliers, the early Métis people contributed massively to European penetration of North America.

    The French referred to the fur trade Métis as coureurs de bois (forest runners) and bois brulés (burnt-wood people) in recognition of their wilderness occupations and their dark complexions. The Labrador Métis (whose culture had early roots) were originally called `livyers' or `settlers', those who remained in the fishing settlements year-round rather than returning periodically to Europe or Newfoundland. The Cree people expressed the Métis character in the term Otepayemsuak, meaning the `independent ones'.

    (Report of the Royal Commission on Aboriginal Peoples, vol. 4, at pp. 199-200 ("RCAP Report")).

    The Métis developed separate and distinct identities, not reducible to the mere fact of their mixed ancestry: "What distinguishes Métis people from everyone else is that they associate themselves with a culture that is distinctly Métis" (RCAP Report, vol. 4, at p. 202).

  55. The Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots. This enables us to speak in general terms of "the Métis". However, particularly given the vast territory of what is now Canada, we should not be surprised to find that different groups of Métis exhibit their own distinctive traits and traditions. This diversity among groups of Métis may enable us to speak of Métis "peoples", a possibility left open by the language of s. 35(2), which speaks of the "Indian, Inuit and Métis peoples of Canada."

  56. We would not purport to enumerate the various Métis peoples that may exist. Because the Métis are explicitly included in s. 35, it is only necessary for our purposes to verify that the claimants belong to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right. A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. The respondents here claim membership in the Métis community centred in and around Sault Ste. Marie. It is not necessary for us to decide, and we did not receive submissions on, whether this community is also a Métis "people", or whether it forms part of a larger Métis people that extends over a wider area such as the Upper Great Lakes.

  57. Our evaluation of the respondents' claim takes place against this historical and cultural backdrop. The overarching interpretive principle for our legal analysis is a purposive reading of s. 35. The inclusion of the Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing their survival as distinctive communities. The purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture.

  58. For the reasons elaborated below, we uphold the basic elements of the Van der Peet test (R. v. Van der Peet, [1996] 2 S.C.R. 507) and apply these to the respondents' claim. However, we modify certain elements of the pre-contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis claims.

    A. The Van der Peet Test

  59. The core question in Van der Peet was: "How should the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 be defined?" (para. 15, per Lamer C.J.). Lamer C.J. wrote for the majority, at para. 31:

    [W]hat s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.

  60. The emphasis on prior occupation as the primary justification for the special protection accorded aboriginal rights led the majority in Van der Peet to endorse a pre-contact test for identifying which customs, practices or traditions were integral to a particular aboriginal culture, and therefore entitled to constitutional protection. However, the majority recognized that the pre-contact test might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition post-date European contact. For this reason, Lamer C.J. explicitly reserved the question of how to define Métis aboriginal rights for another day. He wrote at para. 67:

    [T]he history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal peoples in Canada. As such, the manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined. At the time when this Court is presented with a Métis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Métis claim, be able to explore the question of the purposes underlying s. 35's protection of the aboriginal rights of Métis people, and answer the question of the kinds of claims which fall within s. 35(1)'s scope when the claimants are Métis. The fact that, for other aboriginal peoples, the protection granted by s. 35 goes to the practices, customs and traditions of aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to that question.

  61. As indicated above, the inclusion of the Métis in s. 35 is not traceable to their pre-contact occupation of Canadian territory. The purpose of s. 35 as it relates to the Métis is therefore different from that which relates to the Indians or the Inuit. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. The inclusion of the Métis in s. 35 represents Canada's commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other aboriginal communities.

  62. With this in mind, we proceed to the issue of the correct test to determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982. The appropriate test must then be applied to the findings of fact of the trial judge. We accept Van der Peet as the template for this discussion. However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their aboriginal rights.

    (1) Characterization of the Right

  63. The first step is to characterize the right being claimed: Van der Peet, supra, at para. 76. Aboriginal hunting rights, including Métis rights, are contextual and site-specific. The respondents shot a bull moose near Old Goulais Bay Road, in the environs of Sault Ste. Marie, within the traditional hunting grounds of that Métis community. They made a point of documenting that the moose was intended to provide meat for the winter. The trial judge determined that they were hunting for food, and there is no reason to overturn this finding. The right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie.

  64. We agree with the trial judge that the periodic scarcity of moose does not in itself undermine the respondents' claim. The relevant right is not to hunt moose but to hunt for food in the designated territory.

    (2) Identification of the Historic Rights-Bearing Community

  65. The trial judge found that a distinctive Métis community emerged in the Upper Great Lakes region in the mid-17th century, and peaked around 1850. We find no reviewable error in the trial judge's findings on this matter, which were confirmed by the Court of Appeal. The record indicates the following: In the mid-17th century, the Jesuits established a mission at Sainte-Marie-du-Sault, in an area characterized by heavy competition among fur traders. In 1750, the French established a fixed trading post on the south bank of the Saint Mary's River. The Sault Ste. Marie post attracted settlement by Métis - the children of unions between European traders and Indian women, and their descendants (A.J. Ray, "An Economic History of the Robinson Treaty Areas Before 1860 (1998) ("Ray Report"), at p. 17. According to Dr. Ray, by the early nineteenth century, "[t]he settlement at Sault Ste. Marie was one of the oldest and most important [Métis settlements] in the upper lakes area" (Ray Report, supra, at p. 47). The Hudson Bay Company operated the St. Mary's post primarily as a depot from 1821 onwards (Ray Report, supra, at p. 51). Although Dr. Ray characterized the Company's records for this post as "scanty" (Ray Report, supra, at p. 51), he was able to piece together a portrait of the community from existing records, including the 1824-25 and 1827-28 post journals of HBC Chief Factor Bethune, and the 1846 report of a government surveyor, Alexander Vidal (Ray Report, supra, at pp. 52-53).

  66. Dr. Ray's report indicates that the individuals named in the post journals "were overwhelmingly Métis", and that Vidal's report "provide[s] a crude indication of the rate of growth of the community and highlights the continuing dominance of Métis in it" (Ray Report, supra, at p. 53). Dr. Victor P. Lytwyn characterized the Vidal report and accompanying map as "clear evidence of a distinct and cohesive Métis community at Sault Ste. Marie," (V.P. Lytwyn, "Historical Report on the Métis Community at Sault Ste. Marie" (1998) ("Lytwyn Report"), at p. 2 while Dr. Ray elaborated: "By the time of Vidal's visit to the Sault Ste. Marie area, the people of mixed ancestry living there had developed a distinctive sense of identity and Indians and Whites recognized them as being a separate people" (Ray Report, supra, at p. 56).

  67. In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Métis community that can support a claim to site-specific aboriginal rights. We recognize that different groups of Métis have often lacked political structures and have experienced shifts in their members' self-identification. However, the existence of an identifiable Métis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. Here, we find no basis for overturning the trial judge's finding of a historic Métis community at Sault Ste. Marie. This finding is supported by the record and must be upheld.

    (3) Identification of the Contemporary Rights-Bearing Community

  68. Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual's ancestrally based membership in the present community. The trial judge found that a Métis community has persisted in and around Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson-Huron Treaty in 1850. While we take note of the trial judge's determination that the Sault Ste. Marie Métis community was to a large extent an "invisible entity" (para. 80) from the mid-19th century to the 1970s, we do not take this to mean that the community ceased to exist or disappeared entirely.

  69. Dr. Lytwyn describes the continued existence of a Métis community in and around Sault Ste. Marie despite the displacement of many of the community's members in the aftermath of the 1850 treaties:

    [T]he Métis continued to live in the Sault Ste. Marie region. Some drifted into the Indian Reserves which had been set apart by the 1850 Treaty. Others lived in areas outside of the town, or in back concessions. The Métis continued to live in much the same manner as they had in the past - fishing, hunting, trapping and harvesting other resources for their livelihood.

    (Lytwyn Report, p. 31 (emphasis added); see also Morrison, "The Robinson Treaties", at p. 201)

  70. The advent of European control over this area thus interfered with, but did not eliminate, the Sault Ste. Marie Métis community and its traditional practices, as evidenced by census data from the 1860s through the 1890s. Dr. Lytwyn concluded from this census data that "[a]lthough the Métis lost much of their traditional land base at Sault Ste. Marie, they continued to live in the region and gain their livelihood from the resources of the land and waters" (Lytwyn Report, supra, at p. 32). He also noted a tendency for underreporting and lack of information about the Métis during this period because of their "removal to the peripheries of the town," and "their own disinclination to be identified as Métis" in the wake of the Riel rebellions and the turning of Ontario public opinion against Métis rights through government actions and the media (Lytwyn Report, supra, at p. 33).

  71. We conclude that the evidence supports the trial judge's finding that the community's lack of visibility was explained and does not negate the existence of the contemporary community. There was never a lapse; the Métis community went underground, so to speak, but it continued. Moreover, as indicated below, the "continuity" requirement puts the focus on the continuing practices of members of the community, rather than more generally on the community itself, as indicated below.

  72. The trial judge's finding of a contemporary Métis community in and around Sault Ste. Marie is supported by the evidence and must be upheld.

    (4) Verification of the Claimant's Membership in the Relevant Contemporary Community

  73. While determining membership in the Métis community might not be as simple as verifying membership in, for example, an Indian band, this does not detract from the status of Métis people as full-fledged rights-bearers. As Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified. In the meantime, courts faced with Métis claims will have to ascertain Métis identity on a case-by-case basis. The inquiry must take into account both the value of community self-definition, and the need for the process of identification to be objectively verifiable. In addition, the criteria for Métis identity under s. 35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Métis held by virtue of their direct relationship to this country's original inhabitants and by virtue of the continuity between their customs and traditions and those of their Métis predecessors. This is not an insurmountable task.

  74. We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition of who is Métis for the purpose of asserting a claim under s. 35. We therefore limit ourselves to indicating the important components of a future definition, while affirming that the creation of appropriate membership tests before disputes arise is an urgent priority. As a general matter, we would endorse the guidelines proposed by Vaillancourt J. and O'Neill J. in the courts below. In particular, we would look to three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s. 35: self-identification, ancestral connection, and community acceptance.

  75. First, the claimant must self-identify as a member of a Métis community. This self-identification should not be of recent vintage: While an individual's self-identification need not be static or monolithic, claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self-identification requirement.

  76. Second, the claimant must present evidence of an ancestral connection to a historic Métis community. This objective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic community whose practices ground the right being claimed. We would not require a minimum "blood quantum", but we would require some proof that the claimant's ancestors belonged to the historic Métis community by birth, adoption, or other means. Like the trial judge, we would abstain from further defining this requirement in the absence of more extensive argument by the parties in a case where this issue is determinative. In this case, the Powleys' Métis ancestry is not disputed.

  77. Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. Membership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community. The core of community 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. This is what the community membership criterion is all about. Other indicia of community acceptance might include evidence of participation in community activities and testimony from other 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 rights-bearing community.

  78. It is important to remember that, no matter how a contemporary community defines membership, only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community.

  79. In this case, there is no reason to overturn the trial judge's finding that the Powleys are members of the Métis community that arose and still exists in and around Sault Ste. Marie. We agree with the Court of Appeal that, in the circumstances of this case, the fact that the Powleys' ancestors lived on an Indian reserve for a period of time does not negate the Powleys' Métis identity. As the Court of Appeal indicated, "E. B. Borron, commissioned in 1891 by the province to report on annuity payments to the Métis, was of the view that Métis who had taken treaty benefits remained Métis and he recommended that they be removed from the treaty annuity lists" (Sharpe J.A., at para. 139). We emphasize that the individual decision by a Métis person's ancestors to take treaty benefits does not necessarily extinguish that person's claim to Métis rights. It will depend, in part, on whether there was a collective adhesion by the Métis community to the treaty. Based on the record, it was open to the trial judge to conclude that the rights of Powleys' ancestors did not merge into those of the Indian band.

    (5) Identification of the Relevant Time Frame

  80. As indicated above, the pre-contact aspect of the Van der Peet test requires adjustment in order to take account of the post-contact ethnogenesis of the Métis and the purpose of s. 35 in protecting the historically important customs and traditions of these distinctive peoples. While the fact of prior occupation grounds aboriginal rights claims for the Inuit and the Indians, the recognition of Métis rights in s. 35 is not reducible to the Métis' Indian ancestry. The unique status of the Métis as an Aboriginal people with post-contact origins requires an adaptation of the pre-contact approach to meet the distinctive historical circumstances surrounding the evolution of Métis communities.

  81. The pre-contact test in Van der Peet is based on the constitutional affirmation that aboriginal communities are entitled to continue those practices, customs and traditions that are integral to their distinctive existence or relationship to the land. By analogy, the test for Métis practices should focus on identifying those practices, customs and traditions that are integral to the Métis community's distinctive existence and relationship to the land. This unique history can most appropriately be accommodated by a post contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area. The focus should be on the period after a particular Métis community arose and before it came under the effective control of European laws and customs. This pre-control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on the Métis.

  82. We reject the appellant's argument that Métis rights must find their origin in the pre-contact practices of the Métis' aboriginal ancestors. This theory in effect would deny to Métis their full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1). The right claimed here was a practice of both the Ojibway and the Métis. However, as long as the practice grounding the right is distinctive and integral to the pre-control Métis community, it will satisfy this prong of the test. This result flows from the constitutional imperative that we recognize and affirm the aboriginal rights of the Métis, who appeared after the time of first contact.

  83. The pre-control test requires us to review the trial judge's findings on the imposition of European control in the Sault Ste. Marie area. Although Europeans were clearly present in the Upper Great Lakes area from the early days of exploration, they actually discouraged settlement of this region. J. Peterson explains:

    With the exception of Detroit, Kaskaskia and Cahokia, the French colonial administration established no farming communities in the Great Lakes region. After 1763, only partly in response to the regionwide resistance movement known as Pontiac's Rebellion, the British likewise discouraged settlement west of Lake Ontario. Desire to keep the peace and to monopolize the profits of the Great Lakes Indian trade were the overriding considerations favouring this policy. To have simultaneously encouraged an influx of white farmers would have upset both the diplomatic alliance with the native inhabitants inherited from the French and the ratio between humans and animals on the ground, straining the fur-bearing capacities of the region.

    (J. Peterson, "Many roads to Red River", in The New Peoples: Being and Becoming Métis in North America (1985), at p. 400)

    This policy changed in the mid-19th century, as British economic needs and plans evolved. The British sent William B. Robinson to negotiate treaties with the Indian tribes in the regions of Lake Huron and Lake Superior. One of his objectives as Treaty Commissioner was to obtain land in order to allow mining, timber and other development, including the development of a town at Sault Ste. Marie (Lytwyn Report, supra, at p. 29).

  84. The historical record indicates that the Sault Ste. Marie Métis community thrived largely unaffected by European laws and customs until colonial policy shifted from one of discouraging settlement to one of negotiating treaties and encouraging settlement in the mid-19th century. The trial judge found, and the parties agreed in their pleadings before the lower courts, that "effective control [of the Upper Great Lakes area] passed from the Aboriginal peoples of the area (Ojibway and Métis) to European control" in the period between 1815 and 1850 (para. 90). The record fully supports the finding that the period just prior to 1850 is the appropriate date for finding effective control in this geographic area, which the Crown agreed was the critical date in its pleadings below.

    (6) Determination of Whether the Practice is Integral to the Claimants' Distinctive Culture

  85. The practice of subsistence hunting and fishing was a constant in the Métis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Métis life and a defining feature of their special relationship to the land (Peterson, supra, at p. 41; Lytwyn Report, supra, at p. 6). A major part of subsistence was the practice at issue here, hunting for food.

  86. Peterson describes the Great Lakes Métis communities as follows at p. 41:

    These people were neither adjunct relative-members of tribal villages nor the standard bearers of European civilization in the wilderness. Increasingly, they stood apart or, more precisely, in between. By the end of the last struggle for empire in 1815, their towns, which were visually, ethnically and culturally distinct from neighbouring Indian villages and "white towns" along the eastern seaboard, stretched from Detroit and Michilimackinac at the east to the Red River at the northwest.

    .... [R]esidents [of these trading communities] ... drew upon a local subsistence base rather than on European imports .... [S]uch towns grew as a result of and were increasingly dominated by the offspring of Canadian trade employees and Indian women who, having reached their majority, were intermarrying among themselves and rearing successive generations of Métis. In both instances, these communities did not represent an extension of French, and later British colonial culture, but were rather "adaptation[s] to the Upper Great Lakes environment.

    [emphasis added]

  87. Dr. Ray emphasized in his report that a key feature of Métis communities was that "their members earned a substantial part of their livelihood off of the land" (Ray Report, supra, at p. 56). Dr. Lytwyn concurred:

    The Métis of Sault Ste. Marie lived off the resources of the land. They obtained their livelihood from hunting, fishing, gathering and cultivating.

    (Lytwyn Report, at p. 2).

    He reported that "[w]hile Métis fishing was prominent in the written accounts, hunting was also an important part of their livelihood," and that "[a] traditional winter hunting area for the Sault Métis was the Goulais Bay area" (Lytwyn Report, supra, at pp. 4-5). He elaborated at p. 6:

    In the mid-19th century, the Métis way of life incorporated many resource harvesting activities. These activities, especially hunting and trapping, were done within traditional territories located within the hinterland of Sault Ste. Marie. The Métis engaged in these activities for generations and, on the eve of the 1850 treaties, hunting, fishing, trapping and gathering were integral activities to the Métis community at Sault Ste. Marie.

  88. This evidence supports the trial judge's finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850.

    (7) Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted

  89. Although s. 35 protects "existing" rights, it is more than a mere codification of the common law. Section 35 reflects a new promise: a constitutional commitment to protecting practices that were historically important features of particular aboriginal communities. A certain margin of flexibility might be required to ensure that aboriginal practices can evolve and develop over time, but it is not necessary to define or to rely on that margin in this case. Hunting for food was an important feature of the Sault Ste. Marie Métis community, and the practice has been continuous to the present. Steve and Roddy Powley claim a Métis aboriginal right to hunt for food. The right claimed by the Powleys falls squarely within the bounds of the historical practice grounding the right.

    (8) Determination of Whether or not the Right was Extinguished

  90. The doctrine of extinguishment applies equally to Métis and to First Nations claims. There is no evidence of extinguishment here, as determined by the trial judge. The Crown's argument for extinguishment is based largely on the Robinson-Huron Treaty of 1850, from which the Métis as a group were explicitly excluded.

    (9) If There is a Right, Determination of Whether There is an Infringement

  91. Ontario currently does not recognize any Métis right to hunt for food, or any "special access rights to natural resources" for the Métis whatsoever (appellant's record, at p. 1029). This lack of recognition, and the consequent application of the challenged provisions to the Powleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Métis community.

    (10) Determination of Whether the Infringement is Justified

  92. The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the trial judge that the record here does not support this justification. If the moose population in this part of Ontario were under threat, and there was no evidence that it is, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria set out in R. v. Sparrow, [1990] 1 S.C.R. 1075. While preventative measures might be required for conservation purposes in the future, we have not been presented with evidence to support such measures here. The Ontario authorities can make out a case for regulation of the aboriginal right to hunt moose for food if and when the need arises. On the available evidence and given the current licensing system, Ontario's blanket denial of any Métis right to hunt for food cannot be justified.

  93. The appellant advances a subsidiary argument for justification based on the alleged difficulty of identifying who is Métis. As discussed, the Métis identity of a particular claimant should be determined on proof of self-identification, ancestral connection, and community acceptance. The development of a more systematic method of identifying Métis rights-holders for the purpose of enforcing hunting regulations is an urgent priority. That said, the difficulty of identifying members of the Métis community must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.

  94. While our finding of a Métis right to hunt for food is not species-specific, the evidence on justification related primarily to the Ontario moose population. The justification of other hunting regulations will require adducing evidence relating to the particular species affected. 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 where threatened species may be involved. In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt, a right that we recognize as part of the special aboriginal relationship to the land.

    B. The Request for a Stay

  95. With respect to the cross-appeal, we affirm that the Court of Appeal had jurisdiction to issue a stay of its decision in these circumstances. This power should continue to be used only in exceptional situations in which a court of general jurisdiction deems that giving immediate effect to an order will undermine the very purpose of that order or otherwise threaten the rule of law: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. We note that the Powleys' acquittal would have remained valid notwithstanding the stay. It was, however, within the Court of Appeal's discretion to suspend the application of its ruling to other members of the Métis community in order to foster cooperative solutions and ensure that the resource in question was not depleted in the interim, thereby negating the value of the right.

  96. The initial stay expired on February 23, 2002, and more than a year has passed since that time. The Court of Appeal's decision has been the law of Ontario in the interim, and chaos does not appear to have ensued. We see no compelling reason to issue an additional stay. We also note that it is particularly important to have a clear justification for a stay where the effect of that stay would be to suspend the recognition of a right that provides a defence to a criminal charge, as it would here.

    III. CONCLUSION

  97. Members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under s. 35(1). 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.

  98. The appeal is dismissed with costs to the respondents. The cross-appeal is dismissed.

  99. The constitutional question is answered as follows:

    Are ss. 46 and 47(1) of the Game and Fish Act, R.S.O. 1990, c. G.1, as they read on October 22, 1993, of no force or effect with respect to the respondents, being Métis, in the circumstances of this case, by reason of their aboriginal rights under s. 35 of the Constitution Act, 1982?

    Answer: Yes.

    APPENDIX

    Relevant Constitutional and Statutory Provisions

    The following provisions govern this appeal:

    Game and Fish Act, R.S.O. 1990, c. G-1, ss. 46 and 47(1)

    46.

    No person shall knowingly possess any game hunted in contravention of this Act or regulations.

    47.

    (1)

    Except under the authority of a licence and during such times and on such terms and conditions and in such parts of Ontario as are prescribed in the regulations, no person shall hunt black bear, polar bear, caribou, deer, elk or moose.

    Section 35 of the Constitution Act, 1982

    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.


Cases

R. v Powley, 2003 SCC 43; Spooner Oils Ltd. v Turner Valley Gas Conservation Board, [1933] S.C.R. 629; Frank v The Queen, [1978] 1 S.C.R. 95; Moosehunter v The Queen, [1981] 1 S.C.R. 282; R. v Horseman, [1990] 1 S.C.R. 901; R. v Badger, [1996] 1 S.C.R. 771; R. v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Reference as to Whether "Indians" in s. 91(24) of the British North America Act, 1867 (U.K.), includes Eskimo inhabitants of the Province of Quebec , [1939] S.C.R. 104; R. v Sutherland, [1980] 2 S.C.R. 451; Nowegijick v The Queen, [1983] 1 S.C.R. 29; Mitchell v Peguis Indian Band, [1990] 2 S.C.R. 85; Edwards v Attorney-General for Canada, [1930] A.C. 124; Hunter v Southam Inc., [1984] 2 S.C.R. 145; R. v Marshall, [1999] 3 S.C.R. 456; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Sparrow, [1990] 1 S.C.R. 1075; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721

Legislations

Constitution Act, 1867: s.91(24).

Constitution Act, 1930.

Constitution Act, 1982: s.35.

Game and Fish Act, R.S.O. 1990, c. G.1: s.46, s.47(1)

Indian Act, S.C. 1951, c. 29: s.88.

Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1985, App. II, No. 8]: s.31.

Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930), Sch. 1, paras. 1, 10, 11, 12, 13.

Wildlife Act, R.S.M. 1987, c. W130, s.26 [rep. & subs. 1989-90, c. 27: s.13].

Authors and other references

Canada. House of Commons. House of Commons Debates, vol. XX, 3rd Sess., 5th Parl., July 6, 1885, p. 3113.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, vol. 4. Ottawa: The Commission, 1996.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Flanagan, Thomas E. "The History of Métis  Aboriginal Rights: Politics, Principle, and Policy" (1990), 5 C.J.L.S. 71.

Jennifer S. H. Brown, eds., The New Peoples: Being and Becoming Métis in North America. Winnipeg: University of Manitoba Press,Lytwyn, Victor P. "Historical Report on the Métis Community at Sault Ste. Marie", March 27, 1998.

Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which they Were Based, and Other Information Relating Thereto. Toronto: Belfords, 1880.

Morrison, James. "The Robinson Treaties of 1850: A Case Study". Study commissioned by the Royal Commission on Aboriginal Peoples.

Morton, W. L., ed. Manitoba: The Birth of a Province, vol. I. Winnipeg : Manitoba Record Society Publications, 1984.

Ontario. Ministry of Natural Resources. Interim Enforcement Policy on Aboriginal Right to Hunt and Fish for Food. Toronto: The Department, 1991.

Peterson, Jacqueline. "Many roads to Red River: Métis genesis in the Great Lakes region, 1680-1815". In Jacqueline Peterson and

1985, 37.

Ray, Arthur J. "An Economic History of the Robinson Treaties Area Before 1860", March 17, 1998.

Representations

Blais v Regina

Lionel Chartrand, for the appellant (instructed by Aboriginal Centre Law Office, Winnipeg)

Holly D. Penner and Deborah L. Carlson, for the respondent (instructed by Attorney General of Manitoba, Winnipeg)

Powley v Regina

Lori R. Sterling and Peter Lemmond, for the appellant/respondent on cross-appeal (instructed by Ministry of the Attorney General for Ontario, Toronto)

Jean Teillet and Arthur Pape, for the respondents/appellants on cross-appeal (instructed by Pape & Salter, Vancouver)


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