Powley Case
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Monday, March 17, 2003
Historic Métis hunting-rights case argued before
Supreme Court
SUE BAILEY
Canadian Press
OTTAWA (CP) - Métis people did not exist before European contact and should not be granted aboriginal hunting rights, lawyers for several provinces said Monday.
The term "aboriginal" means "from the beginning," lawyer Lori Sterling, representing the Ontario government, told the Supreme Court of Canada. "And clearly the Métis were not here from the beginning." No other country offers distinct, constitutional rights for those of mixed aboriginal and European descent, Sterling noted.
But the nine top-court judges must interpret, for the first time, what is meant by recognition of Métis rights in the Constitution.
Section 35 states: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
"In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Métis peoples of Canada," it says.
Sterling - backed by attorneys general for Canada, Manitoba, Alberta, British Columbia, New Brunswick, Quebec, Saskatchewan, Newfoundland and Labrador - said constitutional inclusion of the Métis was never meant to grant them the same rights as aboriginals who settled Canada first.
Status Indians are permitted to hunt for food without provincial licenses and out of season.
But recognizing the same right for Métis people could open a floodgate that would wreak havoc on conservation efforts, say lawyers for several provinces and non-native hunting groups.
Métis were constitutionally recognized to protect pre-existing and future treaties and allow participation in constitutional conferences, Sterling said.
Several high-court judges questioned such a narrow view.
"Those who drafted the Constitution intended certain rights be attributed to the Métis," said Justice Ian Binnie.
Métis "created a new culture," added Justice Charles Gonthier. "And this culture established itself before the Euro-Canadians moved in and took over the region in which the Métis had formed. So, in that sense, they were aboriginal."
The court must weigh how Métis rights, if they exist, should be defined and how a community can establish its right to enjoy them.
The two-day hearing wraps up Tuesday, but no judgment is expected for several months.
Alternatively, Sterling said the high court should only consider special Métis rights for communities established before the Crown asserted its sovereignty in the same region.
That would cut out settlements that heavily relied on European presence, she explained.
The case is led by Steve Powley, a disabled Métis hunter from Sault Ste. Marie, Ont.
He and his son, Roddy, were charged in 1993 under the Ontario Game and Fish Act after they killed a bull moose while hunting without a license.
After a 14-day trial, they successfully argued in 1998 that, as Métis, they have a constitutional right to hunt for food without licenses and outside provincial hunting seasons.
The Ontario Court of Appeal upheld the landmark ruling in February 2001. But the Ontario government won leave to appeal to the high court.
Dozens of illegal hunting charges will be affected by the outcome.
Before status is granted, the Métis National Council demands documented proof that at least one parent had ancestral ties to a Métis community, said Powley's lawyer, Jean Teillet.
Such national standards are applied by local communities, she told the court.
Still, the judges asked repeatedly for more detail on how Métis settlements should be defined.
Granting a special hunting right could inspire "huge numbers of people" to come forward, said Justice Binnie. About 300,000 people described themselves as Métis in the 2001 Census.
Powley, 54, uses a wheelchair and lives on a disability pension since losing half his right leg to an infection sustained when he cut himself on a remote hunting trip.
Securing the meat he lives on was more important than medical attention, he said.
Powley, whose mother was Ojibway, has put his faith in the courts to verify Métis rights, he said.
"The government hasn't treated native peoples of any kind very fair."
The high court hears Tuesday from lawyers for Ernest Blais, a Métis man convicted of hunting deer on protected Crown land in Manitoba. He is appealing a Manitoba Court of Appeal ruling that Métis don't fall under the term "Indian" as defined by the 1930 Natural Resources Transfer Agreement.
© Copyright 2003 The Canadian Press
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