IV. Justice Delayed is
Justice Denied
[# 79] The learned trial judge, at paras. 131, 132 and 134, made the following observations with respect to issues involving Métis rights:
Even though the quasi-criminal charges
against the Powleys have been dismissed for the reasons given, this case
illustrates that there are many important issues that must be decided in
the future regarding Métis
rights. The criminal process is not a particularly effective
or efficient tool to arrive at the required solutions. It is
a blunt instrument. It is also an expensive, time consuming, and
cumbersome process.
The issues raised have significant political components that are best addressed in the political arena.
Section 35 of the Constitution Act, 1982 did not have to acknowledge the Aboriginal rights of a group of people referred to as Métis. However, the Parliament of Canada has clearly proclaimed the Métis existence. It has been twenty-five years since the Constitution Act has been in force. Is it not time to find answers regarding the issues affecting the Métis?
In addition, at paras. 37 and 38, he stated:
The Blais decision suggests that the definition debate has a significant political component linked to it. I would agree with this characterization. The Constitution Act, 1982 is an expression of Canada's political essence. Accordingly, when s. 35 refers to a group identified as Métis, it would seem appropriate that the elected representatives of this nation dialogue with the key participants in the arena and arrive at a workable definition of who is a Métis.
Once a definition has been put in place, resources should be provided to deal with individual applicants who are interested in achieving official Métis status. The current practice of individuals financing independent ancestral searches is both cumbersome and expensive. A central registry system could facilitate the determination of official status.[# 80] In Sparrow, supra, the Supreme Court wrote about the significance and effect of s. 35(1) of the Constitution Act, 1982, at pp. 1105, 1106, as follows:
It is clear, then, that s. 35(1) of the Constitution Act, 1982 represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35 possible and it is important to note that the provision applies to the Indians, the Inuit and the Métis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. We are, of course, aware that this would, in any event, flow from the Guerin case ...
In our opinion, the significance of s. 35(1) extends beyond these fundamental effects. Professor Lyon in "An Essay on Constitution Interpretation" (1988), 26 Osgoode Hall L.J. 95, says the following about s. 35(1), at p. 100:
... the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. [Emphasis added][# 81] There is a difference between achieving or reaching a settlement of s. 35 rights, as compared to a just
settlement of s. 35 rights. Access to justice is fundamental to achieving justice. When access is delayed, justice will be denied. In Re: Municipality of Metropolitan Toronto and Brenner (No.1) (1980), 29 O.R. (2d) 531 (H.C.J.), O'Driscoll J., stated at p. 550:
We all live under the rule of law. Abraham Lincoln, I think it was, said: "No one is above the law, and no one is beneath the law." We are all familiar with the legal maxims: "Justice delayed is justice denied;" ... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done: R. v. Sussex Justices, [1924] 1 K.B. 256 at p. 259. There is no sense mouthing those skeletal words; flesh must be put onto the skeleton.[# 82] It is clear from the trial evidence that the Métis, as aboriginal people in Ontario, have continued the
long struggle for a just settlement respecting their s. 35(1) rights, since 1982, but without result or success. As noted in Sparrow, supra, this search for justice since 1982, is in addition to "the long and difficult struggle" before 1982, over a period measured in decades, for the constitutional recognition of aboriginal rights. While many segments of, and persons in, our society understandably are concerned about a delay in accessing or securing justice, measured over a period of years, these concerns become all the more serious and alarming when the struggle for justice is measured over decades or generations. Tony Belcourt touched on these failures to make progress with governments in defining and affirming existing aboriginal rights, in the following words:
Q. And what are the other Provincial Governments responses to the Métis?A. Generally, the Provincial Government responses, there haven't been any pieces of legislation concerning the Métis and most Provincial Governments take the position, we've been political footballs ever since I've been involved in lobbying at the federal level for some 28 years now. We are ... we are a political football. The Federal Government says we don't have the responsibility for you, the Provinces do and the Provinces take the opposite position. We don't have the responsibility, the Federal Government does.
...
Q. Now, Mr. Belcourt, does anybody ... does the Government accept the registration lists, I guess maybe I should start before that and say, have you ever informed the Government about your registry system?
A. Yes, many times.
Q. Which times?
A. And in fact, I've invited a representatives of both the Federal and the Provincial Government to attend our offices and ... and examine our Registry process and the Registry itself.
Q. Have you ever asked or spoken to anyone from the Ministry of Natural Resources about the Registry system?
A. I have, yes. The Minister, the Deputy Minister and Senior officials in the Enforcement Policy Branch.
Q. And what's the response?
A. They've ... they've never come to our offices.
Q. Do ... do they accept your list of Métis people?
A. No. They've never ... well, they accept it in the sense that if I give it to them, they accept the fact that I'm giving them a list, but they don't accept our Registry as being the Registry of the Métis in the Province. They don't recognize our list.
Q. Do you ... what's your understanding of why they don't?
A. The ... they, the Government of Ontario at various times in various ways has said to us that they don't know who the Métis are because the Government of Canada hasn't told them who they are, so they are somehow waiting for the Government to present, provide a list. That's one of the responses I get. Another response that I get is that you don't represent all of the Métis in the Province of Ontario, so, therefore, we're not going to recognize Métis harvesting agreements because of that, because you don't represent all of the Métis. I ... we did have an agreement at one time. We negotiated a harvesting agreement which was approved by the entire Senior categories of the Ministry of Natural Resources including the Deputy Minister, but the Minister in the end cancelled the deal and his response to me was that they did not ... the Métis Nation of Ontario did not represent all of the Métis, which is just an excuse. It certainly makes no sense. We weren't negotiating for anybody but the people on our list.[# 83] Mr. William Bouchard expressed his frustration in making progress towards a just and timely settlement in relation to s. 35(1) rights, when he said:
Q. And do you have some experience with Government on this issue of who the Métis are, Mr. Bouchard?
A. Yes, I was President of Bar River Native Voice and we wrote letters to the Government of Ontario to try and get them to recognize Bar River Native Voice as a Métis community so we could start some negotiations for harvesting rights with the M.N.R. and every time we got a letter back, it pretty well said well, we don't know who represents the Métis and who they are and ...[# 84] If, as the Supreme Court of Canada has stated, s. 35(1) calls for a just (and therefore timely) settlement for aboriginal peoples, the clear delays in establishing processes, protocols and parameters to identify s. 35(1) Métis rights in the Province of Ontario represent a denial of justice. The Constitution of Canada is the supreme law of the land. In my view, respect for all laws declines, and our justice system is undermined, when unacceptable and lengthy delays occur in relation to achieving a just settlement with
respect to these constitutional legal rights, no matter what reason or excuse is given.