(Right to Hunt)

ii)  The issue of whether hunting was a practice, custom or tradition integral to the distinctive culture of the local Métis community at Sault Ste. Marie prior to the period 1815 to 1850.

 [# 23]     The appellant argues that the culture and social practices of the historic Métis community which evolved at Sault Ste. Marie during the 18th and early 19th centuries centred upon Métis participation in the fur trade economy as wage earning labourers, independent traders, and skilled tradesmen.  Their participation in the fur trade economy also involved reliance on the local fishery, and some small-scale
 farming.  The appellant further states that hunting was merely "marginal" to this historic lakeside Sault Ste. Marie "half-breed" community, and that it is apparent from the evidence that hunting was a secondary and incidental aspect of the distinctive culture of the historic Métis community in question, and was of marginal significance.

 [# 24]     The trial judge considered this issue by framing the following three questions, which he then went on to analyze and consider in his reasons:

       (i)  What is the correct characterization of the right?

      (ii)  Is the right claimed a practice, custom or tradition which was exercised by the Métis?

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

 [# 25]     If the Crown's argument on these points is correct, the aboriginal rights of different communities of
 aboriginal peoples might be so narrowed such that only a  single defining or central activity would be protected under s. 35(1) to the exclusion of others.  Yet we know from Sparrow, supra, that in considering aboriginal rights, the court should keep in mind the following principles:

      1)   the fiduciary duty owed by the Crown to aboriginal peoples,

      2)   the rejection of the "frozen rights" theory of aboriginal rights and

      3)   the importance of the aboriginal perspective on those rights.

 [# 26]     Any test for Métis rights in s. 35 must be in the context of a large and liberal interpretation that fulfils the purpose of the rights recognized and affirmed by that provision.

 [# 27]     The trial judge found as a fact that hunting was an integral part of the Métis culture prior to the assertion of the effective control.  His reasons reflect the following:

      The evidence indicated that the Ojibway and Métis had  always hunted and that this activity was a integral part of their culture prior to the intervention of European  control.  Mr. Long stressed the fact that moose were scarce if not non-existent between 1820 and 1880 thereby creating a scenario whereby at the time of effective control of the area passing from the Aboriginal people moose hunting would not be a part of their culture.  I find that to take this approach one must suspend common sense.  I take the position that just because a particular species is in short supply or temporarily in a state of great depletion that does not eliminate that particular animal as a hunted species by the Aboriginal group.

The right to hunt is not one that is game specific.  The evidence makes it clear that prior to the 1820's that moose would have been part of the Ojibway and Métis diet.

      In fact, it would appear that the Aboriginal societies in the Sault Ste. Marie area were opportunistic when it came to hunting animals for their food or otherwise.

      Evidence given by the Ministry of Natural Resources indicates that Indians are allowed to hunt moose under the Robinson-Huron Treaty without sanctions.  If the narrow view of pre-existing activity were to be applied equally, it could be argued that at the time the Ojibway signed their treaties, they were not hunting moose because they were not in the area at the time of the agreement.

Dr. Ray testified that the economy of the Métis people in Sault Ste. Marie historically was similar to the Ojibwayeconomy.  He pointed out that the relative importance of fishing or hunting or trapping or collecting would depend on a number of factors in any given year.  Game cycles, fish cycles and fur cycles would impact on their activities.

Similarly, with respect to the case at bar, one must ask oneself whether hunting was an integral part of the original Métis community.  The evidence presented at trial would support the conclusion that hunting was an integral part of the Métis culture prior to the assertion of effective control by the European authorities.

 [# 28]     The evidence at trial indicates that the Métis lived off the land for subsistence purposes, and as well, they were involved, in some respects, in a wage economy.  The expert witness called by the defence at trial, Dr. Ray, described the importance of living off the land for the Métis as follows:

      I think the better way to think about it is that these people had a livelihood based on living off the land and they also had the attitude that you took what the land  offered throughout the period from the 1820's through to  the Robinson Treaty period is a time when game is ... game is quite scarce.  Furs are scarce.  Beaver is not abundant for most of these areas ... One of the results of the period of high competition, that is the period say 1780's, '90's to 1821 lead to short-term depletion of fur and game in the region and one of the results of that is the Native economies, that would be Ojibway and Métis, were forced to change over from, or, let's put it this way, the relative significance of large game in the economy diminished in this period and fish and small game  were relatively more important simply because that's what was primarily available ... so that it's not to say large game hunting stops. ...there are  reports, periodic reports of outright  starvation in this area during this period of the '20's and '30's, so it's a hard time... It's clearly a low point in the fur and game cycle.  It also points out, again a point I was trying to make yesterday, I'll go back and highlight what he says here, the scarcity makes it "out of the power of the best hunter to provide a sufficiency to maintain himself & a family".  That is out of hunting and trapping alone, so again, it's the diversified economy of the Indian and Métis, Indians and Métis here which was the key to their survival.

      Q.   One must question, Dr. Ray, can you say that hunting is integral to the Métis society here?

      A.   It certain was ... at that time it was an integral part of it and I would say that ... the trouble I
           have with a question like that is it segments the economy which is a ... which is a distortion of the
           reality.  The economy was based on the right to live off the land, whether it meant hunting, fishing,
           trapping and the relative importance of any one of those activities in any year over a period of years
           would depend on the game cycles, economic conditions and so on, so that that was ... to me the hunting
           right is bundled into those rights.  I don't think they could have understood, I'm certain ... neither
           the Métis or the Ojibway would have probably found it hard to imagine that, how can we be allowedo do
           one and not the other ... and so, yes, I would say as a bundle of livelihood rights, it would have been
           a part of it and I don't imagine they would have considered it separated out.

 [# 29]     A careful review of the evidence of trial demonstrates it supported the contention that hunting was of
 central significance to the Métis, and integral to their distinctive society.  The trial judge's findings in this
 regard do not demonstrate palpable or overriding error, and ought not to be disturbed.