By Lloyd Dolha
The BC Metis Nation continues to push for a Metis-specific harvesting management system with the provincial government and area First Nations.
Since the Supreme Court of Canada’s 2003 ruling in Powley, the BC Metis Nation has developed a natural resources strategy for the implementation of Metis harvesting rights in the province.
In the unanimous landmark ruling, the Supreme Court found that Section 35 of the Canadian constitution (i.e.: the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed) provides a substantive promise to the Metis that recognizes their distinct existence, and protects their existing rights as they are one of the aboriginal peoples included in the accompanying section.
The court identified three factors as a means to identify Metis persons who hold existing rights. These are self-identification, an ancestral connection to a historic Metis community, and community acceptance. The court also set out a 10-point test to identify contemporary rights-bearing Metis persons.
The natural resources strategy is being developed through a community consultation process with its 44,000 members in their seven prospective regions of its provincial governance structure called Traditional Resources and Conservation Knowledge program. In conjunction with the TRACK program, the BC Metis Nation has created a natural resource management body known as the BC Metis Assembly of Natural Resources.
Since adopting their governance structures of a Metis Nation Governing Assembly and Senate, as well as the ratification of a Metis Citizenship Act last year, the Metis of the province function as a true provincial governance structure.
Through these governing institutions, the Metis are pursuing the ratification of a Natural Resource Act and an Electoral Act, as well as a Metis Children and Family Act.
The BCMANR is a non-political body mandated by the Metis Nation to manage the Metis use of natural resources based on the traditional Metis “Buffalo Assembly” used by the Metis in the early to mid-1800s.
The Buffalo Assembly, or Captains Assembly, is comprised of seven regional Captains and a non-voting Youth and Women’s Captain. Each of the seven regions appoints an officer who sits in an ‘Officer’s Assembly’ that is chaired by the respective regional Captain. Each captain takes management direction from their Officer’s Assembly and ultimately takes those opinions to the provincial Captain’s Assembly meetings.
In the area of policy development, the BC Metis Nation has developed a policy that governs all future Metis harvests over a wide array of indigenous species in the province – everything from mule deer to black bear, moose, elk, mountain goats and many others.
The policy adheres to the principles laid out in Powley; the objectives are to:
-engage in a cooperative management partnership with the provincial government to address conservation and management objectives;
-enforce conservation practices during future Metis harvests;
-develop wildlife management practices based on traditional Metis values of
cooperation;
-respect and enforce harvesting practices in a safe manner; and,
-respect the private property rights of landholders.
Metis harvesters who wish to assert their right to harvest must first obtain a Metis Nation Harvester’s card under the direction and approval of both the Officer and Captain or the respective region or local. The harvester’s card will be considered proof that the holder has been verified by the BC Metis Nation as having provided sufficient documentation to support a claim to a Metis right to harvest.
The Metis harvester’s policy is currently in its third draft and the BCMANR is reviewing the document using the traditional captains and Officers of Natural Resources at the regional and local levels. The final policy document is expected to be ready for a reading within the Metis governance structure this fall.
The Metis are also negotiating protocol agreements with First Nations, seeking strategic alliances that respect the aboriginal and treaty rights of First Nations while allowing the Metis to advance both socially and politically.
The BC Metis Nation is currently negotiating protocol agreements with the Shuswap Nation Tribal Council, Treaty 8 Tribal Council and the Nicola Valley Tribal Association. They are also seeking to establish agreements with the First Nations Summit and the Union of BC Chiefs.
Metis fights for Interior rights
On the legal front, the BC Metis Nation has won a series of preliminary battles in their on-going fight to uphold a Metis right to harvest in the interior of British Columbia.
In Willison, Gregory Willison had successfully argued the existence of a Metis right to harvest in “the environs of Falkland” in the Okanagan/Thompson area of the province.
On appeal to the BC Supreme Court, the Okanagan Nation Alliance sought intervenor status in the provincial Crown’s appeal of Willison, arguing that the ONA should have been informed of the original trial as the land upon the hunt took place was part of their traditional territory.
The ONA had sought to extensively intervene in the appeal, essentially asking the court to overturn the decision and send it back to trial to allow the ONA to introduce “voluminous” amounts of fresh evidence that wasn’t introduced at the original trial concerning their aboriginal title and rights in the area.
Had the ONA accomplished this, the focus of the case would have shifted from being about a Metis right to harvest, to being about the Okanagan Nation’s aboriginal title and rights.
Justice Williamson denied the ONA application to send it back to trial to allow the ONA to introduce their evidence. Williamson J. said the law does not support the proposition that the ONA or any First Nation can act as an intervenor at a trial regarding Metis harvesting rights.
According to the BC Metis Nation: “Overall, Judge Williamson affirmed the principle that Metis rights exist independently from Indian (aboriginal) rights and do not depend on Metis obtaining permission from Indians such as the First Nations represented by the ONA.”
Williamson J. did grant the ONA a limited intervenor status in the appeal to the Supreme Court, but only on the evidence introduced at the original trial on the application of the Powley test as to the existence of a historical Metis community in the Okanagan.
The provincial Crown is appealing the acquittal of Willison, and argues that the judge misinterpreted the 10-point Powley test. The Supreme Court appeal is scheduled to take place April 18-21. If upheld in the favour of the Metis at the BC Supreme Court level, the province still has the option of going to the Supreme Court of Canada.
“The thing we heard from our legal team is they (the province) might not go to the Supreme Court of Canada because it’s not really expanding Powley, it’s just an application of the test, so to go to the Supreme Court would be redundant,” said Dean Trumbley, BCMN director of Natural Resources.
The BC Metis Nation has also employed researchers, Dr. Mike Angel and Dr. Mike Evans for the past two years. The pair is conducting research throughout the province, identifying historical Metis communities, movement patterns, and usage areas in the hope of reproducing the Willison decision in other areas of the province such as the Kootenay, and the North Central B.C.
In the meantime, those Metis of the province who choose to exercise their right to harvest without a formal agreement with the province are warned by the BC Metis Nation to adhere to all case law in both the Powley and Willison decisions.
There are also plans for a publicized hunt; a large scale civil disobedience action, pending a successful out come of Willison this April.
“That’s one of the strategies we’re thinking of employing if the judge reconfirms (Willison) in April. We might take that course of action if we don’t hit the negotiation table,” said Trumbley.
