III. The Issues on Appeal
[# 7] At trial, the respondents' defence was a claim of aboriginal rights constitutionally protected under s. 35(1) of the Constitution Act, 1982, which provides:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.[# 8] The Supreme Court of Canada has very explicitly set out the four steps which all courts must take in assessing a claim under s. 35(1) as follows:
In R. v. Sparrow, [1990] 1 S.C.R. 1075, Dickson C.J. and LaForest J., writing for a unanimous court, held that an analysis of a claim under s. 35 (1) has four steps; first, the court must determine whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right; second, a court must determine whether that right was extinguished prior to the enactment of s. 35(1) of the Constitution Act, 1982; third a court must determine whether that right has been infringed; finally, a court must determine whether that infringement was justified. See: R. v. Gladstone, [1996] 2 S.C.R. 723 at 742, para. 20.The Crown has accepted that if the respondents were acting pursuant to an aboriginal right it was not extinguished and it was infringed by ss. 46 and 47(1) of the Act. Accordingly, there are two basic issues in this appeal:
(1)
Did the learned judge err in finding that the respondents had an aboriginal
right as Métis to
hunt for food?
(2)
If the respondents had such a right, did the learned judge err in finding
that its
infringement by ss.46 and 47(1) of the Act was not justified?
[# 9] In assessing a claim to an aboriginal
right a court must engage in a two stage process. It must first
identify the nature of the right claimed. (In so doing
it must consider: the nature of the action claimed to have been done
pursuant to an aboriginal right; the nature of the governmental regulation,
statute or action being impugned; and the practice, custom or tradition
relied on to establish the right.) At the second stage it must determine
whether the practice, custom or tradition claimed to be an aboriginal right
was, prior to a specific point in the past, an integral part of the distinctive
culture of the local aboriginal community in question, in the sense of
being one of the community's defining features, and has remained an integral
part of the culture of the community in that sense.
Van der Peet, supra at 551-555 para. 51-54; 563-564 para.76-80.
R. v. NTC Smokehouse Ltd., [1996] 2 S.C.R. 672 at 685 para. 14; 688 para. 22.
Gladstone, supra at 743-744 para. 23-25.
R. v. Pamajewon, [1996] 2 S.C.R. 821 at 833-835 para. 25-28.
R. v. Adams, [1996] 3 S.C.R. 101 at 122-123 para. 35-37.
R. v. Cote, [1996] 3 S.C.R. 139 at
176-177 para. 55-58.