Court File No. C34065

COURT OF APPEAL FOR ONTARIO

FACTUM OF THE INTERVENOR,

57 Louis Pasteur

Suite 357

Ottawa, Ontario

K1N 6N5

Telephone: (613) 562-5800 (3315)

Facsimile: (613) 562-5124

Solicitor for the Intervenor

Congress of Aboriginal Peoples

Osgoode Hall

130 Queen St. West

Toronto, Ontario

M5H 2N5

Constitutional Law Branch

8th Floor, 720 Bay Street

Toronto, ON M5G 2K1

Lori Sterling

Tel.: (416) 326-4453

Fax: (416) 326-4015

Solicitors for the Appellant,

Her Majesty the Queen

AND TO: Jean Teillet

Ruby & Edwardh

Barristers & Solicitors

11 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2

Tel.: (416) 964-9664

Fax: (416) 964-8305

Solicitor for the Respondents,

Steve Powley and Roddy Charles Powley

AND TO: Brian Eyolfson

Aboriginal Legal Services of Toronto

197 Spadina Ave.

Suite 600

Toronto, Ontario

M5R 1B3

Tel.: (416) 408-3967

Fax: (416) 408-4268

Solicitors for the Intervenor,

Aboriginal Legal Services of Toronto, Inc.

AND TO: Clem Chartier

Barrister and Solicitor

Box 168

Saskatoon, Saskatchewan

S7K 3K4

Tel.: (306) 343-8285

Fax: (306) 343-0171

Solicitors for the Intervenor,

Metis National Council

AND TO: Robert Macrae

Barrister and Solicitor

188 Industrial Park Crescent

Sault Ste. Marie, Ontario

P6B 5P2

Tel.: (705) 945-6090

Fax: (705) 949-9431

Solicitors for the Intervenor,

The Ontario Metis Aboriginal Association

PART I - STATEMENT OF THE CASE................................................................................1

PART II - FACTS.....................................................................................................................1

PART III - ISSUES AND LAW...............................................................................................1

(A) THE PURPOSE OF METIS RIGHTS............................................................................2

(A) Aboriginal persistence...................................................................................4

(B) Multi-nationality...........................................................................................5

(C) Inter-societal justice......................................................................................5

(B) THE RELEVANT TIME.................................................................................................7

(i) Application of Principles...........................................................................................7

(ii) Test..........................................................................................................................7

(iii) Advantages...............................................................................................................8

(C) ‘WHO IS MÉTIS?’..........................................................................................................9

(i) The Courts Below....................................................................................................9

(ii) Métis Communities are Fragmented By Official Discrimination ..............................10

(iii) The Relevance of Discrimination in this Case .........................................................12

(iv) Relevance of Discrimination to Fashioning a Test for ‘Who is Métis?’.............................13

(v) ‘Who is Métis?’ Test Related to Power to Self-Define..............................................14

PART IV - ORDER REQUESTED .....................................................................................15

1. This Crown appeal raises two constitutional questions of first impression for this Court -- whether Métis persons have aboriginal hunting rights protected by the Constitution Act, 1982, s. 35(1); and if they do, who are the Métis persons entitled to exercise those rights.
2. The Intervenor’s Perspective. The Intervenor, Congress of Aboriginal Peoples, is a national organization representing approximately 750,000 Métis and off-reserve Indian peoples, composed of twelve provincial and territorial affiliates. The Congress’ Métis affiliates have attempted to, or have negotiated harvesting, land and self-government rights with the Federal Government. These efforts have not (or not yet) borne fruit. The Congress’ perspective is shaped by its belief that the ruling of this Court will impact significantly on these negotiations.

PART II - FACTS

[The respondents shot and killed a bull moose in the bush near Sault Ste. Marie but did not have a moose hunting licence. They were charged with hunting and possessing a moose without a licence contrary to ss. 46 and 47(1) of the Game and Fish Act (now the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41). The respondents were direct descendents of the Lesage family, members of the historic Métis community in Sault Ste. Marie. The respondent SP was a registered member of the Ontario Métis and Aboriginal Association ("OMAA") and the Métis Nation of Ontario ("MNO"). The respondent RP did not have an OMAA membership card, but he was listed on SP's application form under the heading: "Identify any children under 18 for whom you wish to apply for Youth Membership".

The respondents claimed that, as members of the historic Métis community, they had an existing aboriginal right to hunt for food without a licence, protected by s. 35 of the

Constitution Act, 1982. They did not have status under the Indian Act, R.S.C. 1985, c. I-5, nor did they enjoy any treaty rights. Status Indians in the Sault Ste. Marie area have a treaty right to hunt for food pursuant to the 1850 Robinson- Huron Treaty. The treaty right to hunt for food is recognized in the 1991 Interim Enforcement Policy issued by the Ministry of Natural Resources under the Game and Fish Act. While the Interim Enforcement Policy provides for negotiations for Métis hunting rights, there has been no agreement recognizing Métis rights. The Ontario government has refused to recognize Métis people as having any special access to natural resources.

The trial judge defined Métis as "a person of Aboriginal ancestry; who self-identifies as a Métis; and who is accepted by the Métis community as a Métis". He found that the respondents satisfied that test. He further found that there was a visually, culturally and ethnically distinct Métis community in the area around Sault Ste. Marie that traced its roots to the marriages between French fur traders and indigenous Ojibway women. The trial judge found as a fact that hunting was an integral part of the Métis culture prior to the assertion of effective control by the Crown. He also held that the Métis practice of hunting for food had been continuous to the present, and that there is a contemporary Sault Ste. Marie Métis society that is in continuity with the historic Métis community. He concluded that the respondents had established the necessary ingredients for an aboriginal right to hunt for food within the meaning of s. 35(1) of the Constitution Act, 1982 and that this right was infringed by ss. 46 and 47(1) of the Game and Fish Act. He found that the appellant had failed to justify the infringement of the s. 35 right. Accordingly, the charges were dismissed.

The Superior Court upheld the trial judge's decision and the appellant appealed.]

PART III - ISSUES AND LAW

3. Intervenor will address only these three issues:

(a) The Purpose of Métis Rights.

Intervenor submits that Métis peoples are included in s. 35(1) to reinforce the ability of Métis societies to persist, to subject legislative power to disturb Métis societies to constitutional control and to insure that Métis societies receive inter-societal justice.

(b) The Relevant Time

Continuous and integral Métis practices must have been exercised from July 1, 1867 to qualify for s. 35(1) protection in this case.

(c) ‘Who is Métis?’

Justice O’Neill correctly stated the test in his Reasons, at para. 64.

The Purpose of Metis Rights

4. R. v. Van der Peet concerned status Indians. In that context only, Lamer CJ described the purpose of s. 35(1):

the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these purposes...

R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 45

5. Van der Peet’s antecedents and progeny – Sparrow, Gladstone, Adams and Coté -- also concerned status Indians. Lamer CJ recognized (Van der Peet, para. 67) that the purpose of aboriginal rights he stated "is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined" because "the history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal peoples in Canada".

R. v. Sparrow, [1990] 1 S.C.R. 1075, R. v. Gladstone, [1996] 2 S.C.R. 723, R v. Adams, [1996] 3 S.C.R. 101, R. v. Coté, [1996] 3 S.C.R. 139

6. Accordingly, in adjudicating Métis aboriginal rights under s. 35, this Court is required to expound an incompletely manufactured constitutional doctrine where many gaps necessarily exist.
7. In the Provincial Judges Reference and Secession Reference, the Supreme Court made an important departure for constitutional adjudication which, like this case, advances legal doctrine into significantly uncharted domains. The Court noted that "certain underlying principles infuse our Constitution and breathe life into it." The Court continued:

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. ...

Given the existence of these underlying constitutional principles, what use may the Court make of them? ... In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada.

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 50-4

Reference Re Provincial Judges, [1997] 3 S.C.R. 3

8. The purposes of sec. 35(1) identified as relevant to status Indians in Van der Peet, its antecedents and progeny, are infused by underlying constitutional principles. These principles can give rise to other purposes in other contexts. These principles can identify the purposes, and interpret the scope, of Métis aboriginal rights protected by s. 35(1).
9. Principles. The underlying constitutional principles relevant to this case are: aboriginal persistence, multi-nationality and inter-societal justice.
10. (A) Aboriginal persistence. When British colonizers encountered aboriginal nations in North America, British policy was to leave aboriginal nations to live apart as distinct societies. The aboriginal societies were not absorbed into colonial society.
11. This policy applied equally to the distinctive Métis societies that formed in the 17^th, 18^th and 19^th centuries across present-day Canada. Regarding Rupert's Land, the huge territory granted to the Hudson’s Bay Company in 1670, the Company’s Governor, Sir George Simpson, testified before the British House of Commons in 1857:

[Mr. Grogan] What privileges or rights do the native Indians possess strictly applicable to themselves? -[Simpson] They are perfectly at liberty to do what they please; we never restrain Indians. [Mr. Grogan] Is there any difference between their position and that of the half-breeds? - [Simpson] None at all. They hunt and fish, and live as they please. ...

[Lord Stanley] You exercise no authority whatever over the Indian tribes? - [Simpson] None at all ...[Mr. Bell] Do you mean that, possessing the right of soil over the whole of Rupert's Land, you do not consider that you possess any jurisdiction over the inhabitants of that soil? - [Simpson] No, I am not aware that we do. We exercise none, whatever right we possess under our charter.

House of Commons, Report of the Select Committee on the Hudson’s Bay Co . (1857) Minutes of Evidence at 91-2, emphasis added. (discussed in Kent McNeil, Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty (1998), 5 Tulsa J. Comp. & Int’l L. 253, 295)

12. The principle of aboriginal persistence inspires Constitution Act, 1982, s. 35 by attuning the constitutional framework flowing from it to the policy to promote the continuance of distinct aboriginal societies.
13. (B) Multi-nationality. The assertion of British sovereignty in the new world was accompanied by a constitutional regime that regulated the relations between the Aboriginal nations and colonial societies. As explained by Professor Slattery, the doctrine of aboriginal rights

is a distinctive body of custom generated by the intensive relations between indigenous peoples and the British Crown in the seventeenth and eighteenth centuries. This body of custom coalesced into a branch of British imperial law, as the Crown gradually extended its protective sphere in North America. Upon the emergence of Canada as an independent federation, it became part of the fundamental Canadian common law that underpins the Constitution.

Brian Slattery, Making Sense of Aboriginal and Treaty Rights (2000), 79 Can. Bar Rev. 196

14. The principle of multi-nationality inspires the doctrine of aboriginal rights by attuning the constitutional framework flowing from it to the practical requirements of promoting good inter-societal relations within a single multi-national state. The principle informs institutions designed to regulate the intercourse between the various societies inter se, and also between each nation and the State.
15. The multi-nationality principle is probably responsible for the compulsion both Judges below felt to comment on the need for negotiations, rather than blunt criminal prosecution, to recognize and affirm the existing aboriginal rights of the Ontario Métis.
16. (C) Inter-societal justice. Reconciliation of aboriginal societies to the sovereignty of the Crown is predicated upon basic principles of inter-societal justice. This principle will not allow s. 35(1) to be interpreted in a manner that simply perpetuates historical injustices visited on aboriginal people in colonial times. It calls for a new departure, leading to a just settlement for aboriginal societies.

R. v. Coté, [1996] 3 S.C.R. 139, at para. 53 ("the respondent's proposed interpretation risks undermining the very purpose of s. 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect the distinctive cultures of pre-existing aboriginal societies.")

R. v. Sparrow, [1990] 1 S.C.R. 1075, at para. 54, citing Lyon, An Essay on Constitutional Interpretation (1988), 26 Osg. H.L.J. 95 ("Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game ...")

Royal Proclamation (Oct. 7, 1763) ("And whereas it is just and reasonable, and essential to Our Interests and the Security of Our Colonies ..." emphasis added. The fundamental tenets of British policy then follow.)

Dumont v. Canada, [1988] 3 C.N.L.R. 39 (Man. C.A.) (per O’Sullivan, J.A.: "it is evident that since the advent of the age of nationalism and democracy world society has failed to develop satisfactory rules for the recognition of communal minority rights and for the balancing of such rights with the common good of society as a whole [...] it is in the development of law to deal with claims of "peoples" that lies the best hope of achieving justice and harmony in a world full of minority groups.")

17. The principle of inter-societal justice inspires the doctrine of aboriginal rights by attuning the constitutional framework flowing from it to the need to modify customs, practices and rules that cannot be justified, taking into account the subjective perspectives of the various societies, and the objective requirements of the multi-national state.
18. The principle inter-societal justice is probably responsible for this important injunction of the Supreme Court of Canada :

Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada. To quote again Walters, at p. 413: ‘a morally and politically defensible conception of aboriginal rights will incorporate both [aboriginal and non-aboriginal] legal perspectives’.

R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 49

The Relevant Time

19. Application of Principles. The principles of aboriginal persistence, multi-nationality and inter-societal justice may be applied to delineate the relevant time from when continuous Métis practices must have been exercised to qualify for s. 35(1) protection in this case.
20. The principles of aboriginal persistence and multi-nationality adjust the constitutional framework flowing from Constitution Act, 1982, s. 35 to the policy to promote the continuance of distinct aboriginal societies by reserving to those societies reasonable control over the continuous practices, customs and traditions which are central and defining elements of their cultures.
21. In the context of status Indian communities, the Van der Peet Court modified the constitutional framework by attenuating majoritarian power, exercised through the government or legislature, to regulate those continuous practices, customs or traditions which are integral to the Indian societies in the period prior to European contact.
22. Test. In the context of the Métis, promoting the continuance of distinct Métis communities should be done by attenuating majoritarian power to regulate those continuous practices, customs or traditions which are integral to Métis societies when the Crown assumed effective governmental (and fiduciary) responsibility for the Métis people. This requires substantial settler presence and shared governmental institutions. In this case, these conditions would not have occurred until the formation of Ontario in 1867.
23. Intervenor does not disagree with the Respondent (Factum, para. 69) that promoting the continuance of distinctive Métis communities may be done by attenuating governmental power to regulate those continuous practices, customs or traditions which are integral to Métis societies established before effective control over Métis societies was imposed by colonizers.
24. Advantages. Intervenor submits that promoting the continuance of distinctive Métis communities may be achieved better by attenuating the majority’s power to regulate those continuous practices, customs or traditions which are integral to Métis societies established at the time when the Crown assumed effective governmental (and fiduciary) responsibility for the Métis people. The advantage is that this solution couples effective control with duty, rather than with sheer force of numbers.
25. There are two further advantages:

(a) Respondent applies the ‘effective control test’ by reliance on the arrival of a significant number of European settlers into Métis territories (Respondent’s Factum, paras. 66, 68). This legitimizes crude force, which is unprincipled. Application of Intervenor’s test is principled because it couples settler presence to fiduciary duties flowing from shared governmental institutions.

(b) Respondent (Factum, para. 64) treats this matter as requiring re-examination of the Van der Peet test because it "makes no sense when applied to the Métis." Intervenor suggests that application of the underlying constitutional principles generates separate tests for status Indians and Métis, creating a richer, more coherent and elegant doctrine.

26. The principles of aboriginal persistence, multi-nationality and inter-societal justice also reinforce Respondent’s submission (Factum para. 39) that "the constitutional rights of the Métis peoples of Canada are not derivative Indian rights."