Powley Case
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Tuesday, March 18, 2003
Globe & Mail
Métis push for rights opposed
Lawyers argue in Supreme Court against expansion of aboriginal
status
by Kirk Markin
Justice Reporter
OTTAWA -- Granting aboriginal rights to the Mitis people would lead to anyone with a faint trace of aboriginal blood insisting on hunting and fishing out of season or pursuing a land claim, the Supreme Court of Canada was told yesterday.
Lawyers for several governments warned that the ranks of self-described Mitis could mushroom overnight any of them piggybacking on rights created for Canada's indigenous people.
Federal government lawyer Ivan Whitehall said a Mitis should at least prove a strong connection between his present-day community and practices and those of his ancestors at the time Europeans came into contact with indigenous people
"It is simply not good enough to say I am 1/128th or 1/250th aboriginal," Mr. Whitehall said.
"Or to say that way back, some member of my family was aboriginal, or that because I joined a Mitis association that holds a dance a couple of times a year it gives me a ticket . . . for a constitutional right to hunt in some part of Ontario."
Jean Teillet, a lawyer representing two Ontario moose hunters -- Steve Powley and his son Roddy -- reacted with a touch of sarcasm.
"The Mitis are not going to say that every person who has a great-great-great-great-grandmother who was an Indian princess is going to be able to claim Mitis rights," she said.
Ms. Teillet said the Mitis are strict in assessing who qualifies. Had successive governments not ignored the Mitis and virtually willed them out of existence, she added, Mitis genealogical records would be just as complete as those of Indian bands.
Yesterday's case is the first test of Mitis rights since they were written into the 1982 Constitution. If the Supreme Court rules in favour of the Powleys, it could open the door to a full range of rights for the Mitis -- a population estimated at anywhere from 60,000 to a half-million people.
Ontario government lawyer Lori Sterling told the court yesterday that the Powleys cannot claim aboriginal rights because Mitis in their region did not develop into a community until the early to mid-1800s.
She also maintained that the inclusion of the Mitis in the Constitution made very little difference, and that Mitis rights remain essentially the way the courts have interpreted them in common law over the past few decades.
Since the Mitis obviously did not predate the earliest contact between aboriginals and Europeans, Ms. Sterling said, it makes no sense to consider them aboriginal.
"The word 'aboriginal' derives from Latin for 'in the beginning,' " she said. "Clearly, the Mitis were not here from the beginning."
However, Ms. Sterling got a rough ride from several judges who said that, if accepted, her arguments would drain all meaning from their inclusion in the Constitution.
The inclusion of the Mitis was surely "a clear signal that the framers of the Constitution wanted to move the yardsticks," Mr. Justice Ian Binnie said.
"They were in the Constitution," Madam Justice Louise Arbour said. "That has to be the starting point."
At the same time, the judges turned time and again to the meaning of the concept of "a community," and to the limits that can be placed on who belongs to the Mitis people.
Ms. Teillet said a Mitis is someone who identifies him or herself as one, who can trace aboriginal blood from one parent, and who is accepted by the Mitis community as a member.
At one point, Chief Justice Beverley McLachlin questioned the logic of dating the origin of a people and their rights according to a European calendar and concepts.
"It strikes me as a more complex notion than the idea that we came and planted a flag -- or when the first white person crossed their path," she said.
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