 As in 2003, with the Métis Nation’s historic victory at the Supreme Court of Canada in R. v. Powley, 2007 will also be a precedent setting year in the ongoing Métis ‘hunt for justice’. In total, it is expected that at least five decisions on Métis rights will be delivered by courts across the Métis Nation Homeland this year. Each one of these cases, in its own way, will be important to the development of Métis rights case law.
Collectively these cases will continue to push all levels of government to come to grips with Métis rights. Since 2003, some governments, such as Alberta, Ontario and Canada, have heard and acted on the directions from the Supreme Court of Canada in Powley. Those governments sat down with Métis in order to negotiate and accommodate Métis harvesting rights. Other governments, such as Manitoba, Saskatchewan and British Columbia, have chosen an adversarial, costly and time consuming approach. Instead of engaging in negotiations, as mandated by s. 35 of the Constitution Act, 1982, and the honour of the Crown, these governments have forced Métis into the courts at great financial expense to the Métis Nation and all taxpayers in those provinces.
The anticipated cases can be grouped into three categories:
(1) cases to establish a Métis right pursuant to the Powley test
(2) cases that deal with the enforceability and interpretation of negotiated Métis harvesting agreements, and
(3) a case that will answer whether the Crown has fulfilled its duties and obligations to the Métis pursuant to the Manitoba Act.
In the first category, we have the R. v. Goodon (Manitoba) and R. v. Belhemeur (Saskatchewan) cases. In the second category we have the R. v. Laurin, Lemieux & Lemieux (Ontario) and R. v Kelley (Alberta) cases. In the third category, we have the Manitoba Métis Federation v. Canada case.
R. v. Goodon
Will Goodon was charged under s. 19 of the Manitoba Wildlife Act for harvesting a duck in the Turtle Mountains. Mr. Goodon did not have a provincial hunting licence, but was harvesting under the authority of his Manitoba Métis Federation Harvester’s Card. The Goodon trial began in May of 2006 and it is expected that the evidence portion of the trial will be completed by the end of Mar. 2007. By then, over 15 community witnesses and four experts will have testified.
This case is important because it will tackle the question of “what is a Métis community?” in Manitoba. Further, because the Manitoba Crown is arguing that Métis harvesting rights in the province have been extinguished, the court will have to answer this important issue as well. It is anticipated that a decision will be rendered in Goodon in the summer of 2007.
R. v. Belhemeur
Donald Belhemeur was charged with ice fishing near the Qu’Appelle River in southern Saskatchewan. Mr. Belhemeur did not have a provincial fishing licence and was charged under s. 11(1) of the Saskatchewan Fisheries Regulations.
In Saskatchewan, even though Métis harvesting rights have been proven in court cases in northern Saskatchewan (R. v. Morin & Daigneault and R. v. Laviolette), the provincial government has refused to formally accommodate Métis harvesting south of a unilaterally imposed line. A victory in the Belhemeur case will hopefully force the Saskatchewan government to finally act honourably and accommodate Métis harvesting practices throughout the province, rather than forcing Métis to establish rights hectare by hectare. The trial portion of the case is set to conclude in Mar. 2007 following the testimony of two experts and 17 community witnesses. It is anticipated that a decision will be rendered in Belhemeur in the summer of 2007.
R. v. Laurin, Lemieux & Lemieux
In July 2004, the Métis Nation of Ontario (MNO) reached an interim harvesting agreement with Ontario. The four points of the agreement were straightforward:
(1) the MNO would issue up to 1,250 Harvester Cards,
(2) holders of these 1,250 Harvester Cards would not be charged for harvesting within their traditional territory as long as they abided by conservation and safety requirements, (3) the interim agreement would stay in place until a final agreement was reached,
(4) the MNO would agree to a third-party audit of its Harvester Card system and the parties would undertake joint research to use in negotiating the final agreement.
In the fall of 2004, Ontario began to charge MNO Harvester Card holders south of a unilaterally imposed line, even though the text of the negotiated agreement did not include any mentioned of such a limitation. Messrs. Laurin, Lemieux and Lemieux were charged under the Ontario Fisheries Regulations for fishing on the French River (which is south of Ontario’s imposed line). These MNO Harvester Card holders filed an application for stays of proceedings (in other words, charges are dismissed), based on Ontario’s breach of the harvesting agreement.
This case is important to over 50 per cent of the MNO’s Harvester Card holders because they harvest south of Ontario’s unilateral line. Moreover, the case will be important because it will deal with the Crown’s obligations with respect to asserted, but as yet unproven, Métis rights, and how the accommodation agreement should be interpreted. Examinations and final arguments for this case are now complete and a decision will be rendered on June 12, 2007 in North Bay. Additional information on this case can be found on the MNO’s website at www.metisnation.org.
R. v. Kelley
In Sept. 2004, three Alberta Ministers signed the Interim Métis Harvesting Agreement (IMHA) with the Métis Nation of Alberta (MNA). The IMHA included a commitment that MNA members could “hunt, fish and trap”, on designated lands, without fear of being charged, as long as the harvesting was consistent with agreed to conservation or safety rules.
In Dec. 2004, Kipp Kelley, a MNA member, was teaching his children how to trap squirrels in the tradition of his Métis culture. Mr. Kelley did not have a license and was charged under s. 24(1) of Alberta’s Wildlife Act. At trial, Mr. Kelley was convicted because the judge found that Mr. Kelley could not rely on the IMHA as a defence. On Jan. 23, 2007, the Alberta Court of Queen’s Bench reversed the lower court’s decision and overturned Mr. Kelley’s conviction.
The appeal court held that Mr. Kelley, and Métis harvesters like him, can rely on the IMHA as a defence to charges. The appeal judge held it would “shock the conscience of the community” if Alberta was able to proceed with charges against Métis harvesters in the face IMHA which explicitly authorized such harvesting. Equally important, the court recognized that following Powley, Alberta was under a “constitutional imperative” to accommodate Métis harvesting practices. The IMHA was Alberta’s attempt to fulfill this imperative and the honour of the Crown demanded that the commitments within the IMHA be fulfilled.
The Kelley case is also important because the appeal court found that the IMHA and accommodations like the IMHA do not depend on first proving a constitutionally protected Métis right. Métis do not have to establish harvesting rights all across a province prior to a government entering into an accommodation with them.
Accommodations are workable arrangements that achieve the constitutional imperative outside the adversarial process and without the time and cost of litigation. Accommodations have benefits for all involved – Métis, governments and taxpayers. Alberta has decided not to appeal the Kelley decision and it remains good law in that province. The MNA has asked Alberta to deem the IMHA a regulation in order to correct the legal defect that was pointed out by the court. As set out in the IMHA, Alberta and the MNA continue to negotiate on a longer term harvesting agreement. Additional information on this case can be found on the MNA’s website.
Manitoba Métis Federation v. Canada
This is the most anticipated decision in 2007. The case is in a league of its own. It has taken over 20 years to get to a trial, involves over 10,000 documents and took over threemonths of court time to complete. Moreover, if it is successful, the case will most likely set a new course for Crown-Métis negotiations and settlements for the next generation.
At issue is whether Canada and Manitoba fulfilled their obligations to the Métis with respect to the Manitoba Act’s commitments to establishing a Métis land base, as set out in sections 31 and 32 of the Manitoba Act. The MMF is asking the court to make declarations that:
(1) Canada and Manitoba failed to fulfill their obligations to the Métis that are set out in Manitoba Act,
(2) Manitoba’s taxation of Métis lands granted pursuant to s. 31 of the Manitoba Act was unconstitutional, and
(3) in 1870 Canada and the Métis reached a treaty.
The case does not ask for specific lands to be returned to Métis or for a specific sum of money. However, if the MMF is successful in obtaining some of these declarations, it is likely that Canada and Manitoba will have to enter into negotiations with the MMF in order to address these issues (i.e. lands, compensation, etc.). This is similar to what governments have already done with Indian and Inuit peoples through negotiating modern day land claims or treaties in order to address the Crown’s outstanding obligations, as a part of the reconciliation process that is mandated by s. 35 and the honour of the Crown.
The case’s significance does not end there. It could have broader implications for the entire Métis Nation, since the Métis scrip process that was set up by Canada pursuant the Dominion Lands Act was largely based on what was done in Manitoba. As such, a Métis treaty or land claims policy may be required. Furthermore, in dealing with the MMF’s requested declarations, the court may also have to deal with the issue of whether Métis, as an Aboriginal people, fall under federal or provincial responsibility (i.e., whether the Métis are “Indians” for the purposes of s. 91(24) of the Constitution Act, 1867).
All of these scenarios combine to make this an important case for the entire Métis Nation. It is expected that a decision will be rendered in the summer of 2007.
Without question, 2007 will be a pivotal year for the ongoing development of Métis law. The message that has come from the cases decided so far and what will most likely come from the upcoming decisions, is that governments have obligations and duties to the Métis, as a full-fledged rights-bearing Aboriginal people. These obligations and duties, as a part of the reconciliation process that is mandated by s. 35 and the honour of the Crown, require ongoing consultation, negotiations and accommodations between the Crown and the Métis in order to move toward final settlements.
Currently, there are not very many substantive Crown-Métis negotiations taking place from Ontario westward. Hopefully through the upcoming court decisions in 2007, this reality will be very different at the end of this year, and charges against Métis harvesters will be much closer to being a thing of the past.
Jason Madden is a Métis lawyer originally from Northwestern Ontario. He represents Métis governments from Ontario westward and specializes in Métis issues.
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