(What is a Metis Community?)

iii)  The issue of whether there is today a local Métis community, in continuity with the historic Métis community of Sault Ste. Marie, with a distinctive culture in which hunting  for food is integral.

 [# 30]     The trial judge considered this issue by asking himself these three questions:

      (i)  Is there a contemporary Métis society at Sault Ste. Marie?

      (ii)  Is the right claimed integral to the distinctive Métis society?

      (iii)  Do the Métis continue to exercise the practice, custom or tradition?

      The Crown has gone to great pains to narrow the issues in this trial to Sault Ste. Marie proper.  I find that such a limited regional focus does not provide a reasonable frame of reference when considering the concept of a Métis community at Sault Ste. Marie.  A more realistic interpretation of Sault Ste. Marie for the purposes of considering the Métis identity and existence should encompass the surrounding environs of the town site proper.

      I agree with the general principle that Aboriginal rights are very much site-specific.  This principle is addressed in the next heading of this judgment.

      The lifestyle of the Métis more closely resembled the Indians that occupied this area and it would seem more reasonable to find the existence of the Métis on the fringes of the geographical boundaries of Sault Ste. Marie.  Many of the witnesses made reference to communities and areas surrounding Sault Ste. Marie including Batchewana, Goulais Bay, Garden River, Bruce Mines, Desbarates, Bar River, St. Joseph's Island, Sugar Island and into Northern Michigan.

      It is not surprising considering the lifestyle of the  modern Métis to find them as more visible entities in the more rural and outlying communities surrounding SaultSte. Marie.  Their existence in the aforementioned area would be consistent with their original affiliation with the local native population.

 [# 32]     The issue of a local Métis community, and the respondents' membership or affiliation with the community was vigorously debated and canvassed at the appeal hearing.  It isnot so easy to package up and describe a Métis community, as in this case, by comparison with, for example, a recognized Indian band occupying recognized reserve lands as defined under the Indian Act, R.S.C. 1985, c. I-5.  Given governments'
 treatment of Métis people, it may seldom be the case that Métis rights will be found where there is a flourishing Métis community, as opposed to one that is only now beginning to put
 back together aspects of its culture.  This is recognized by the federal government, which admitted in its Statement of Reconciliation in 1998 that Métis people suffered at the hands of government policy:

      As Aboriginal and non-Aboriginal Canadians seek to move forward together in a process of renewal, it is essential that we deal with the legacies of the past affecting the Aboriginal peoples of Canada, including the First Nations, Inuit and Métis.  Our purpose is not to rewrite history but, rather, to learn from our past and to find ways to deal with the negative impacts that certain historical decisions continue to have in our society today

      The ancestors of First Nations, Inuit and Métis peoples lived on this continent long before explorers from other continents first came to North America.  For thousands of years before this country was founded, they enjoyed their own forms of government.  Diverse, vibrant Aboriginal nations had ways of life rooted in fundamental values concerning their relationships to the Creator, the environment and each other, in the role of Elders as the living memory of their ancestors, and in their responsibilities as custodians of the lands, waters and resources of their homelands.  ...

      Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride.  Attitudes of racial and cultural superiority led to a suppression of Aboriginal culture and values.  As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices.  We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated [sic], disrupted, limited or even destroyed  by the dispossession of traditional territory, by the  relocation of Aboriginal people, and by some provisions of the Indian Act.  We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of Aboriginal people and nations.

 [# 33]     To deny people access to their constitutional rights because a community may now only be beginning to put together aspects of its identity and culture is to reward the very practices that the Statement of Reconciliation admits were wrong.

 [# 34]     The Crown has argued that the dispersion of the historic Métis community centred in Sault Ste. Marie during the decade following the opening of Sault Ste. Marie and area to settlement under Crown patent in 1850 resulted in the disappearance of a distinct Métis culture in this area. Further, the Crown argued on appeal that individuals of mixed heritage living in Sault Ste.  Marie appear to have begun to
 identify as Métis only during the last decade, and that this revival of a Métis culture and identity was closely linked to  the arrival of the political and service organizations that claim persons of mixed aboriginal and European ancestry as their constituency.  In addition, the Crown has submitted that the existence of both the Ontario Métis and Aboriginal Association ("OMAA") and the Métis Nation of Ontario ("MNO")  currently operating in and about the Sault Ste. Marie area, do not establish the existence of a distinct contemporary Métis culture and society in Sault Ste. Marie and area, for the purpose of identifying rights protected under s. 35(1) of the Constitution Act, 1982.

 [# 35]     These arguments raise several questions respecting how one defines a community and what evidence is  required to prove continuity of that community from historica times to the present.  The expert witness, Dr. Ray, touched on this in his evidence at trial, when he stated:
 

      ... the idea of communities is a difficult one because there are two kinds of communities ... when we talk about community and I know there's a tendency and we'll actually do a little bit of it.  You look at maps and you  look for little clusters of settlements and say, ah, there's a community, now who's living in it?  But the reality is also there's a larger community, it's community of related families and individuals who are moving around a lot ... you have some coalescing of people together into small communities taking place but it would be also wrong to suppose that that is the only place the Métis live because, for example ... as we'll see here in the case of Sault Ste. Marie, Sault Ste. Marie was regarded, was the home base for some of these families, but members of the family could be spread across the country for years and years before they came back ...

 [# 37]     Mr. Art Bennett, from Bruce Mines, Ontario, a community located approximately 40 miles east of Sault Ste. Marie, gave evidence on behalf of the respondents.  A review of his evidence discloses, among other things, the following:

A.  Okay, well, as I say identify ... I don't consider myself Indian.  Some people have said to me, well, you're Indian, I say, no I'm not and I don't consider myself  White either.  I'm in between.  I'm both.  I'm Métis.  I have white blood in me and I have Indian blood in me and my definition of Métis is Half-breed and it's just a polite word for Half-breed, that's ... you know, it's a French word, but I believe that's what society has chosen to call us Half-breeds and I've always considered myself that even as a child.  I was proud of the fact that it probably got me in more than one scrape, but I am a Half-breed, I'm a Métis person.

 Q.  And do you think your parents identified that way?

   A.  My mother certainly did and my father I believe he was very receptive to the fact that my mother was Half-breed and I think he tried to honour her traditional waysand way of living.

      Q.  Now, do the people in this area, did the people in your town, in Bruce Mines, do they think of you as ... as  a Métis person?

      A.  I believe most of them probably do, ones that know me.

      Q.  Ah hm.  And, now Mr. Bennett, is there a ... do you believe that there's a Métis community here in this area?

      A.  Yes, I do.

      Q.  And how ... how do you know that there's a Métis community here?

      A.  Well, just look around this court room and I see Métis faces and that tells me that there's a Métis community.  I know that.  It's not hard ... for me, it's not hard to know that.  I ... I don't know how to describe it, but I know it's ...

      Q.  Now in your ... in your opinion, let's just ask it straight out.  Did O.M.A.A. create the Métis community?

      A.  No, no, the Métis community I believe was always here.  That was ... we were ... we were here, just not  recognized or not organized and but I do think O.M.A.A. brought us together politically.

A.  It's been a long time but I do remember my family talking about like the family get togethers and even as a child I remember my aunts and uncles would come down. Our house seemed to be kind of the central meeting place, that's where most of the partying and stuff took place and lots of singing, lot of guitar playing and everybody ... a lot of people attribute fiddle music with a Métis culture.  Unfortunately, we didn't have any fiddleplayers in the family, but we sure had guitar players and banjo players and we did a lot of dancing and had a lot of good happy times and I can remember getting together and going and picking blueberries.  Families would get together and we'd go on blueberry picking excursions and strawberry picking and even in the Fall, hunting with my uncles and things like that.

      Q.  And do you know of any ... do you associate the Métis community here with a particular place, like say, Sault Ste. Marie or any of the little communities here or is it just kind of, you think generic around the area?

      A.  I think I'd have to say it's generic, because there's little families, like communities and different areas, like you know, in Echo Bay there's Métis families, back in Bruce Mines we have Métis families, and north of theSault, so I think it's probably in the area not concentrated in one spot.

      Q.  So they're family clusterings, is that the way you would think of them?

      A.  Ya, that would be a good way to describe it.

      Q.  Now, do your brothers and sisters, the ten who are surviving, do they identify as Métis?

      A.  Yes.

      Q.  And do your children identify as Métis?

      A.  Yes.

     Q.  Now, do you consider there to be a Métis community in this area?

      A.  Yes.

      Q.  And is that community just in Sault Ste. Marie or do you think it's in other parts of the ... or other parts of this region?

      A.  There's Métis communities in other parts of thisregion, yes.

      Q.  Can you name some of those modern day ones?

      A.  Yes, there's ... well, there's Sault Ste. Marie. There's Bar River Native Voice, St. Joe Island, Bruce Mines, Thessalon and Chapleau has about forty Métis people in it also.

      Q.  Are you aware of any ... now are you pointing to ones in a particular region, Mr. Bouchard?

      A.  Most of the ones I just said are recognized by the Métis Nation of Ontario.  They have charters with Métis Nation of Ontario.  They're established Métis communities, but there are some in the area that are too small to establish, like maybe they only got four or five Métis people, so they can't really establish a community, so they come, they join, they go towards the biggest community.

      Q.  Mr. Bouchard, do you ... do you define the Métis here by those who join up?

      A.  No.  No, there's lots, there's so much discrimination against the Métis and Aboriginal people that they won't come out of the woodwork, so they're not ... there's lots more besides belonging to the MNO or OMAA  Apparently, according to the consensus of '96 there's supposedly 900, over 900 Métis in Sault Ste. Marie alone that identified as Métis."

 [# 39]     Finally, Mr. Olaf Bjornaa, who also self-identifies as a Métis, and who was raised partly at
 Goulais Bay Mission, and partly at Batchewana Bay, both  located west of Sault Ste. Marie, gave evidence at trial, where he stated in part, as follows:

      Q.  And do you know whether her family identifies as Métis?

      A.  Yes, at the time when we got married, my wife, I always considered as a Métis and that's what she always considers herself as.  We all brought our children up as Métis.

      Q.  Do your brothers and sisters identify or how do your brothers and sisters identify?

      A.  They always identified themselves as Métis because when we were kids, like any fishing and hunting, our  mother is the one that raised us into the fishing and hunting and stuff like this, you know, and that's where we learned our culture, from our Métis culture.

Q.  Now, Mr. Bjornaa, is there a Métis community here?

      A.  Yes, at Sault Ste. Marie, there's definitely a Métis community.  within Goulais Bay is a Métis community. Within Batchewana there's a Métis community.  I feel that out at Gros Cap is a Métis community.  In my line of work when I started commercial fishing, as I fished right from Gros Cap right through to Marathon, I've found all along those areas there was Métis communities.

      Q.  When ... when you speak about the Métis community, do you ... do you think of them as separate or do you think of them as one large community?

      A.  No, I feel that Métis community is pretty well off, most of them by themselves in small areas.  At one time in the Sault, the Sault was a big Métis community and as progress come in, they kept pushing them back, pushing them back ...

Q.  As you understand it, Mr. Bjornaa, are those people still here?

      A.  Yes, a great number are still here.  They'll always be here....

      A.  ... Took what they needed.  Same as to people who lived on Lizard Islands and Michipicoten Island and on Otterhead, they took what they needed and they were a good chunk of Métis people travelling in them areas. That was from the Sault, from Goulais Bay, Gros Cap, Batchewana, they were a good percent of Métis people  sgoing up there.

 [# 40]     In my view, the trial judge correctly found, as a fact, that there is a contemporary Métis community in Sault Ste. Marie, and surrounding environs area.

 [# 41]     As to whether that community is in continuity with the historic Métis community of Sault Ste. Marie, with a  distinctive culture in which hunting for food is integral, as I have already indicated, the trial judge found as a fact that the contemporary Métis community had always existed, except  that it was, until the early 1970's, an invisible entity within the general population, an invisibility (to outsiders) caused by shame, ostracization, and prejudice.  At pp. 179 and 180 of his reasons, the trial judge made the following findings with respect to the custom, practice or tradition of hunting by members of the Métis community:

      Hunting was carried on though the years by the Métis. The census of Canada 1861, 1881, and 1891 shows several  Métis listed as hunters.  Ms. Jones, the Crown's historical expert, referred to the Sessional Papers  (Exhibit #57) which listed hunting infractions in the Sault Ste Marie made in 1897.  A Mr. Collins was charged with moose hunting.  Ms. Jones testified that Collins was a well known Métis family, in Sault Ste Marie.

      Mr. Bjornaa and Mr. Bennett indicated that hunting continues to be an important aspect of Métis life.  I  prefer to use their direct evidence to illustrate this fact.  ... Like Lizard Island, you take people from GrosCap, Goulais Bay, Batchewana, all moved up to those island,s spent the summers there, took their families. They were all Métis families.  I mean the foundations and the buildings are still there.  When they went up there, they took their families up, they spent the summer, they commercial fished, they harvested their meat and stuff off the mainland, they went over to Blueberry Island and picked berries for the year to put away and these people migrated back and forth.  When I was a kid, I remember. I remember being up to those islands and places.

      I felt that ... that there was a body of Métis people because we had to be together.  We wanted something, we had to stick together at it.  Like, I know at one time, people going hunting, if they shot a moose it was shared.There was a gathering, like there was people as a group. One family didn't take all the moose.  The moose went to numbers of families there.  The elders were looked after and stuff, so I really felt there was in a way there was a political bond.

      Q.  Now, Mr. Bennett, when you were a kid growing up and hunting with your uncles, what would you ... could you give us an estimate of what percentage of your diet, I guess the protein of your diet, or basically your diet came from what we might call bush foods or from your ... the animals you hunted and fished?

      A.  as a child or now?

      Q.  Well, like both actually.

      A.  Okay, when I was kid.  Probably the meat and fish we ate, I bet you 90% of what we ate come out of the bush. Now, I'd say probably around 75, 80%.  I actually prefer the taste of moose, even venison, I even prefer venison over moose.  If anybody's a connoisseur of wild game, I'm ... venison tastes better than moose, but ya, probably 75 to 80% of the meat we consume now is wild game, including fish....

      Q.  Do you think that Métis people are out on the land a lot, Mr. Bennett?

      A.  Yes, we are.

      Q.  Do you think they're out on the land just as much or more than M.N.R. officers are?
cause we live on it, they don't.  They're just there  visiting."

 [# 43]     In my view, the trial judge's findings, and the inferences which he drew from these findings, in relation to  this issue, were fully supported by the evidence, and ought not to be disturbed.