Powley Case
Court Documents
SUPREME COURT DECISION
Her Majesty The Queen Appellant/respondent on cross-appeal
v.
Steve Powley and Roddy Charles Powley Respondents/appellants on
cross-appeal
and
Attorney General of Canada, Attorney General of Quebec, Attorney
General of New Brunswick, Attorney General of Manitoba, Attorney
General of British Columbia, Attorney General for Saskatchewan,
Attorney General of Alberta, Attorney General of Newfoundland
and Labrador, Labrador Métis Nation, a body corporate, Congress
of Aboriginal Peoples, Métis National Council ("MNC"),
Métis Nation of Ontario ("MNO"), B.C. Fisheries
Survival Coalition, Aboriginal Legal
Services of Toronto Inc. ("ALST"), Ontario Métis
Aboriginal Association ("OMAA"), Ontario Federation of
Anglers and Hunters ("OFAH"), Métis Chief Roy E.
J. DeLaRonde, on behalf of the Red Sky Métis Independent
Nation, and North Slave Métis Alliance Interveners
Indexed as: R. v. Powley
Neutral citation: 2003 SCC 43.
File No.: 28533.
2003: March 17; 2003 : September 19.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache,
Binnie, Arbour, LeBel and Deschamps JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Aboriginal rights -- Métis -- Two members
of a Métis community near Sault Ste. Marie charged with hunting
contrary to provincial statute -- Whether members of this Métis
community have constitutional aboriginal right to hunt for food
in environs of Sault Ste. Marie -- If so, whether infringement justifiable
-- Constitution Act, 1982, s. 35 -- Game and Fish Act, R.S.O. 1990,
c. G.1, ss. 46, 47(1).
The respondents, who are members of a Métis community near
Sault Ste. Marie, were acquitted of unlawfully hunting a moose without
a hunting licence and with knowingly possessing game hunted in contravention
of s. 46 and 47(1) of Ontario's Game and Fish Act. The trial judge
found that the members of the Métis community in and around
Sault Ste. Marie have, under s. 35(1) of the Constitution Act, 1982,
an aboriginal right to hunt for food that is infringed without justification
by the Ontario hunting legislation. The Superior Court of Justice
and the Court of Appeal upheld the acquittals.
Held: The appeal and cross-appeal should be dismissed.
The term "Métis" in s. 35 of the Constitution Act,
1982 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, and recognizable
group identity separate from their Indian or Inuit and European
forebears. A Métis community is a group of Métis with
a distinctive collective identity, living together in the same geographical
area and sharing a common way of life. The purpose 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. In applying the Van der
Peet test to determine the Métis' s. 35 entitlements, the
pre-contact aspect of the test must be adjusted to take into account
the post-contact ethnogenesis and evolution of the Métis.
A pre-control test establishing when Europeans achieved political
and legal control in an area and focusing on the period after a
particular Métis community arose and before it came under
the control of European laws and customs is necessary to accommodate
this history.
Aboriginal rights are communal, grounded in the existence of a historic
and present community, and exercisable by virtue of an individual's
ancestrally based membership in the present community. The aboriginal
right claimed in this case is the right to hunt for food in the
environs of Sault Ste. Marie. To support a site-specific aboriginal
rights claim, an identifiable Métis community with some degree
of continuity and stability must be established through evidence
of shared customs, traditions, and collective identity, as well
as demographic evidence. The trial judge's findings of a historic
Métis community and of a contemporary Métis community
in and around Sault Ste. Marie are supported by the record and must
be upheld.
The verification of a claimant's membership in the relevant contemporary
community is crucial, since individuals are only entitled to exercise
Métis aboriginal rights by virtue of their ancestral connection
to and current membership in a Métis community. Self-identification,
ancestral connection, and community acceptance are factors which
define Métis identity for the purpose of claiming Métis
rights under s. 35. Absent formal identification, courts will have
to ascertain Métis identity on a case-by-case basis taking
into account the value of community self-definition, the need for
the process of identification to be objectively verifiable and the
purpose of the constitutional guarantee. Here, the trial judge correctly
found that the respondents are members of the Métis community
that arose and still exists in and around Sault Ste. Marie. Residency
on a reserve for a period of time by the respondents' ancestors
did not, in the circumstances of this case, negate their Métis
identity. An individual decision by a Métis person's ancestors
to take treaty benefits does not necessarily extinguish that person's
claim to Métis rights, absent collective adhesion by the
Métis community to the treaty.
The view that Métis rights must find their origin in the
pre-contact practices of their aboriginal ancestors must be rejected.
This view 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 historical
record fully supports the trial judge's finding that the period
just prior to 1850 is the appropriate date for finding effective
European control in the Sault Ste. Marie area. The evidence also
supports his finding that hunting for food was integral to the Métis
way of life at Sault Ste. Marie in the period just prior to 1850.
This practice has been continuous to the present.
Ontario's lack of recognition of any Métis right to hunt
for food and the application of the challenged provisions infringes
the Métis aboriginal right and conservation concerns did
not justify the infringement. Even if the moose population in that
part of Ontario were under threat, the Métis would still
be entitled to a priority allocation to satisfy their subsistence
needs. Further, the difficulty of identifying members of the Métis
community should not be exaggerated so as to defeat constitutional
rights. In the immediate future, the hunting rights of the Métis
should track those of the Ojibway in terms of restrictions for conservation
purposes and priority allocations. In the longer term, a combination
of negotiation and judicial settlement will more clearly define
the contours of the Métis right to hunt.
While the Court of Appeal had jurisdiction to issue a stay of its
decision, which has now expired, no compelling reason existed for
issuing an additional stay.
Cases Cited
Applied: R. v. Van der Peet, [1996] 2 S.C.R. 507; referred to: R.
v. Sparrow, [1990] 1 S.C.R. 1075; Reference re Manitoba Language
Rights, [1985] 1 S.C.R. 721.
Statutes and Regulations Cited
Constitution Act, 1982, s. 35.
Game and Fish Act, R.S.O. 1990, c. G.1, ss. 46, 47(1).
Authors Cited
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal
Commission on Aboriginal Peoples: Perspectives and Realities, vol.
4. Ottawa: The Commission, 1996.
Lytwyn, Victor P. "Historical Report on the Métis Community
at Sault Ste. Marie", March 27, 1998.
Morrison, James. "The Robinson Treaties of 1850: A Case Study".
Study commissioned by the Royal Commission on Aboriginal Peoples.
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 Jennifer S. H. Brown, eds., The New Peoples: Being
and Becoming Métis in North America. Winnipeg: University
of Manitoba Press, 1985, 37.
Ray, Arthur J. "An Economic History of the Robinson Treaties
Area Before 1860", March 17, 1998.
APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of
Appeal (2001), 53 O.R. (3d) 35, 196 D.L.R. (4th) 221, 141 O.A.C.
121, 152 C.C.C. (3d) 97, [2001] 2 C.N.L.R. 291, 40 C.R. (5th) 221,
80 C.R.R. (2d) 1, [2001] O.J. No. 607 (QL), affirming the decision
of the Superior Court of Justice (2000), 47 O.R. (3d) 30, [2000]
O.T.C. 49, [2000] 2 C.N.L.R. 233, which upheld the judgment of the
Ontario Court (Provincial Division), [1999] 2 C.N.L.R. 153, 58 C.R.R.
(2d) 149, [1998] O.J. No. 5310 (QL). Appeal and cross-appeal dismissed.
Lori R. Sterling and Peter Lemmond, for the appellant/respondent
on cross-appeal.
Jean Teillet and Arthur Pape, for the respondents/appellants on
cross-appeal.
Ivan G. Whitehall, Q.C., Michael H. Morris and Barbara Ritzen, for
the intervener the Attorney General of Canada.
René Morin, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, Q.C., and Pierre Castonguay, for the intervener
the Attorney General of New Brunswick.
Deborah L. Carlson and Holly D. Penner, for the intervener the Attorney
General of Manitoba.
Darlene A. Leavitt, for the intervener the Attorney General of British
Columbia.
Written submissions only by P. Mitch McAdam, for the intervener
the Attorney General for Saskatchewan.
Margaret Unsworth and Kurt Sandstrom, for the intervener the Attorney
General of Alberta.
Donald H. Burrage, Q.C., for the intervener the Attorney General
of Newfoundland and Labrador.
D. Bruce Clarke, for the intervener Labrador Métis Nation.
Joseph Eliot Magnet, for the intervener Congress of Aboriginal Peoples.
Clem Chartier and Jason T. Madden, for the interveners Métis
National Council and Métis Nation of Ontario.
Written submissions only by J. Keith Lowes, for the intervener B.C.
Fisheries Survival Coalition.
Written submissions only by Brian Eyolfson, for the intervener Aboriginal
Legal Services of Toronto Inc.
Robert MacRae, for the intervener Ontario Métis Aboriginal
Association.
Written submissions only by Timothy S. B. Danson, for the intervener
Ontario Federation of Anglers and Hunters.
Alan Pratt and Carla M. McGrath, for the intervener Métis
Chief Roy E. J. DeLaRonde, on behalf of the Red Sky Métis
Independent Nation.
Written submissions only by Janet L. Hutchison, for the intervener
North Slave Métis Alliance.
Solicitor for the appellant/respondent on cross-appeal: Ministry
of the Attorney General for Ontario, Toronto.
Solicitors for the respondents/appellants on cross-appeal: Pape
& Salter, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney
General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney
General of Quebec, Sainte-Foy.
Solicitor for the intervener the Attorney General of New Brunswick:
Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: Attorney
General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia:
Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan:
Deputy Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General of Alberta: Alberta
Justice, Edmonton.
Solicitor for the intervener the Attorney General of Newfoundland
and Labrador: Attorney General of Newfoundland and Labrador, St.
John's.
Solicitors for the intervener Labrador Métis Nation: Burchell
Green Hayman Parish, Halifax.
Solicitor for the intervener Congress of Aboriginal Peoples: Joseph
Eliot Magnet, Ottawa.
Solicitor for the interveners Métis National Council and
Métis Nation of Ontario: Métis National Council, Ottawa.
Solicitor for the intervener B.C. Fisheries Survival Coalition:
J. Keith Lowes, Vancouver.
Solicitor for the intervener Aboriginal Legal Services of Toronto
Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.
Solicitor for the intervener Ontario Métis Aboriginal Association:
Robert MacRae, Sault Ste. Marie.
Solicitors for the intervener Ontario Federation of Anglers and
Hunters: Danson, Recht & Freedman, Toronto.
Solicitor for the intervener Métis Chief Roy E. J. DeLaRonde,
on behalf of the Red Sky Métis Independent Nation: Alan Pratt,
Dunrobin, Ontario.
Solicitor for the intervener North Slave Métis Alliance:
Chamberlain Hutchison, Edmonton.
CITATION
Before publication in the S.C.R., this judgment should be cited
using the neutral citation: R. v. Powley, 2003 SCC 43. Once the
judgment is published in the S.C.R., the neutral citation should
be used as a parallel citation: R. v. Powley, [2003] x S.C.R. xxx,
2003 SCC 43.
THE COURT --
I. Introduction
1 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.
2 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.
3 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.)
4 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.
5 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.
6 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.
7 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.
8 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
9 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.
10 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).
11 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."
12 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.
13 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.
14 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
15 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.
16 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.
17 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.
18 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
19 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.
20 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
21 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).
22 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).
23 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
24 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.
25 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)
26 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).
27 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.
28 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
29 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.
30 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.
31 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.
32 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.
33 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.
34 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.
35 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
36 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.
37 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.
38 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.
39 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).
40 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
41 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.
42 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.]
43 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.
44 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
45 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
46 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
47 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
48 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.
49 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.
50 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
51 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.
52 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
53 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.
54 The appeal is dismissed with costs to the respondents. The cross-appeal
is dismissed.
55 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 A
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.
Appeal dismissed with costs. Cross-appeal dismissed.
Solicitor for the appellant/respondent on cross-appeal: Ministry
of the Attorney General for Ontario, Toronto.
Solicitors for the respondents/appellants on cross-appeal: Pape
& Salter, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney
General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney
General of Quebec, Sainte-Foy.
Solicitor for the intervener the Attorney General of New Brunswick:
Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: Attorney
General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia:
Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan:
Deputy Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General of Alberta: Alberta
Justice, Edmonton.
Solicitor for the intervener the Attorney General of Newfoundland
and Labrador: Attorney General of Newfoundland and Labrador, St.
John's.
Solicitors for the intervener Labrador Métis Nation: Burchell
Green Hayman Parish, Halifax.
Solicitor for the intervener Congress of Aboriginal Peoples: Joseph
Eliot Magnet, Ottawa.
Solicitor for the interveners Métis National Council and
Métis Nation of Ontario: Métis National Council, Ottawa.
Solicitor for the intervener B.C. Fisheries Survival Coalition:
J. Keith Lowes, Vancouver.
Solicitor for the intervener Aboriginal Legal Services of Toronto
Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.
Solicitor for the intervener Ontario Métis Aboriginal Association:
Robert MacRae, Sault Ste. Marie.
Solicitors for the intervener Ontario Federation of Anglers and
Hunters: Danson, Recht & Freedman, Toronto.
Solicitor for the intervener Métis Chief Roy E. J. DeLaRonde,
on behalf of the Red Sky Métis Independent Nation: Alan Pratt,
Dunrobin, Ontario.
Solicitor for the intervener North Slave Métis Alliance:
Chamberlain Hutchison, Edmonton.
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