By Frank Larue
The Supreme Court of Canada recently heard the most substantive arguments yet for the recognition of a new special aboriginal status for the Metis of Canada who call themselves the “forgotten people.”
On March 17 and 18, Canada’s top court heard arguments in the cases of R v. Powley, and R v. Blais, to determine whether the Metis have a right to hunt and fish without a license, or in the off-season, just as status Indians and Inuit have.
But the two cases have much broader ramifications for the 300,000 Metis of Canada than just the right to hunt and fish. For the first time ever, the nine judges of Canada’s highest court will determine just what is meant by the constitutional recognition of the Metis in Section 35.
Describing the cases as the most important court battles for the Metis since the trial of Louis Riel, Metis Nation of Ontario president, Tony Belcourt said the federal government’s refusal to recognize their fundamental right to hunt and fish has left the Metis no recourse but the courts to force the government of Canada to live up to the obligations to the Metis people.
“To us this is everything. We’ve been left out since the hanging of Louis Riel and finally we’re getting our day in court,” said Belcourt.
The Metis comprise approximately one-third of the aboriginal people of Canada, but have never enjoyed the same rights as status Indians who enjoy special hunting and fishing rights as well billions of dollars annually in areas such as health care funding, a tax-free status on-reserve and negotiations to large tracts of lands and natural resources.
As one of the three constitutionally recognized aboriginal people in Canada, the Metis have the protection of section 35, which recognizes and affirms their existing rights, but those rights never materialized in any actual benefit in the day-to-day lives of the Metis people.
Heard on March 17, the Powley case is led by Steve Powley, a disabled Metis hunter from Sault St. Marie, Ontario. Powley 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.
In 1998 they successfully argued in the Ontario Provincial Court that, as Metis, they have a constitutional right to hunt for food without a license and outside provincial hunting seasons.
The watershed ruling was upheld by the Ontario Court of Appeal in February 2001; however, the Ontario government won leave to appeal to the Supreme Court of Canada.
The Powley case is extremely complex, involving 17 interveners.
They include seven aboriginal groups, the Ontario federation of Anglers and the attorneys-general for Canada and every western province as well as Quebec and Newfoundland.
Repercussions on other crimes
Dozens of illegal hunting charges could be affected by the final decision. Fighting the case has cost the Metis Nation of Ontario almost $1 million, according to Belcourt. Ottawa is fighting the Metis, but has contributed about $70,000 in test case funding from Indian Affairs said Belcourt.
Both the provincial and federal governments refuse to acknowledge special hunting or fishing rights for the Metis. Lawyers for the federal government argued that hunting rights were granted to [status] Indians so they could continue their way of life prior to contact with European settlers. Since the Metis were a product of Indians and Europeans, they did not exist prior to contact; therefore, no special hunting rights exist.
“Metis do not possess aboriginal rights,” states the federal government’s legal submission. “The Metis did not exist as a people occupying the land prior to contact with Europeans.”
The federal Justice Department cited a 1996 Supreme Court ruling that established fishing rights for Indians by setting a test that the practice must have been established before contact with Europeans.
The Metis are included in the definition of aboriginal peoples in the Canadian constitution in section 35(1), and their rights are recognized and affirmed along with Indians and Inuit.
Arguing for Ontario, lawyer Lori Sterling said that those two groups have rights because they existed prior to contact, unlike the Metis.
For this reason, Sterling argued, Metis people have rights, but not the same rights as the Indians and Inuit, who had long established societies at the time of contact.
Lawyers for the federal and provincial governments further argued that the inclusion of the Metis in the constitution was not meant to give them equal rights; rather, they suggested the intention was to give the Metis a seat at the bargaining table in the event of future constitutional conferences as set out in section 37 of the Charter of Rights and Freedoms.
The second case of R v. Blais, is specific to three western prairie provinces and was heard the following day on March 18th. In 1994, Ernest Blais, a Metis activist, set out on a symbolic hunt and was convicted of illegal hunting in three lower courts in Manitoba. Blais appealed the Manitoba Court of Appeal ruling that the Metis do not fall under the term “Indian” as defined by the 1930 Natural Resources Transfer Ageement.
Blais’ lawyer Lionel Chartrand urged the top court to adopt a broad constitutional approach to the 1930 law, urging the court to reach a conclusion that is “just and reasonable.”
Chartrand argued that it is unreasonable that “Indians” who today “work in a bank in Winnipeg” have a legal right to hunt, while “subsistence Metis who come from a long line of subsistence Metis do not.”
A final decision on the two cases is not expected to be forthcoming for several months.
Steve Powley is confined to a wheelchair since he lost his leg to an infection while on an extended hunting trip.
“For me, it’s food. I use moose meat for just about everything. I won’t eat beef.”