(Community Membership)
iv) The issue of whether the respondents are members of an existing local Métis community in continuity with the historic Métis community of Sault Ste. Marie.
[# 44] The trial judge, in his reasons at page 168, held:
"I find that a Métis is a person of aboriginal ancestry; who self-identifies as a Métis; and who is accepted by the Métis community as a Métis."The trial judge went on to make the following determinations at para. 65 and 66 of his
reasons:
The first part of the process involves the self identification of the Powleys as Métis and the acceptance of them into contemporary Métis society. I am satisfied that Steve Powley has identified as a Métis and has been accepted by two organizations which represent contemporary Métis society, namely, the Ontario Métis Aboriginal Association and the Métis Nation of Ontario. Steve Powley openly placed his Métis status in issue when he shot the moose on October 22, 1993, when he attached his Métis number on the moose and when he declared that the meat was for the winter.[# 45] The Crown has argued that the legal principles that must inform the determination of whether a claimant can exercise aboriginal rights make plain that the trial judge's formulation is deficient, particularly because it ignores or repudiates the legal principle that aboriginal rights arise from the distinctive culture of the aboriginal community in question, and because, in any event, joining OMAA or the MNO cannot constitute acceptance "by the Métis" for the purposes of the test. The Crown submits that any acceptance "by the Métis" as an element in the establishment of Métis identity for purposes of aboriginal rights must be by a local Métis community in continuity with an historic Métis community, not be voluntary political and service organizations like OMAA andthe MNO. In addition, the Crown argues, a fourth element, objectively determinable cultural ties of the claimant to the local Métis community must be added to the three element test propounded by the trial judge. I will deal with each of these points in turn.The second part of the process for the Powleys is to demonstrate that there is a genealogical connection between themselves and the historically identified Métis society. This undertaking was completed by Ms. Armstrong and is contained in her report, Exhibit 48. Ms. Armstrong's evidence was not without certain weaknesses but I am satisfied that the accused before the court have demonstrated on a balance of probabilities that they have Aboriginal roots.
[# 46] The trial judge recognized some
of these difficulties, in his reasons, where at para. 58, 59, and 60,
he stated:
How does the court determine whether or not the Powleys are Métis for the purposes of s. 35(2) of the Constitution Act, 1982? The "Who is a Métis?" question looms large. Unlike cases involving Indian rights, an identifying tribe or band is not available to those claiming Métis status. The generic term Métis forces individuals to not only self identify but they must also piece together the existence of a definable Métis existence from location to location.Indian tribes have identified over time as to region and governments have developed registration lists, to identify Indians for purposes of benefits and claims. A similar procedure has not been put in place for those of Métis descent.
Mr. W. Bouchard gave evidence that it cost him $4,000.00 to have his mother's line traced to its Indian roots. This expenditure would act as a very real deterrent for many individuals who might be interested in ascertaining whether they are of Métis ancestry. Government tracing would provide economies of scale and help resolve the issue as to who may or may not claim Métis status.[# 47] Chapter 5 of Volume 4 of the Report of the Royal Commission on Aboriginal Peoples was filed as an exhibit at the trial. At pp. 201, the authors state, in part, as follows:
Ancestry is only one component of Métis identity. Cultural factors are significant; a people exists because of a common culture. When someone thinks of themselves as Métis, it is because they identify with the culture of a Métis people; and when a Métis people accepts someone as a member, it is because that person is considered to share in its culture. A comment to the Commission from Delbert Majer makes the point:
Delbert MejerI'll say I'm Métis or other young people that I know that are Métis have been confronted with the same question: 'Oh, I didn't think you were Métis. You don't look it.' You know, it's not a biological issue. It's a cultural, historical issue and it's a way of life issue; and it's not what you look like on the outside, it's how you carry yourself around on the inside that is important, both in your mind and your soul and your heart.
Saskatchewan Métis Addictions Council
Regina, Saskatchewan, 10 May 1993
[# 48] When the subject of Aboriginal
identity is discussed, reference is sometimes made to rational connections
and objective criteria, such as place of residence, languages spoken, family
links and community involvement. These are matters of evidence.
They are guides to helping people decide whether someone who claims association
has a genuine connection with the people. No one objective factor
can ever be conclusive by itself; even when weighted for value, objective
measures cannot be applied mechanically. In the end
it comes down to two key elements - ancestry and culture -
and their acceptance by both the individual and the people.
[# 49] The Commission at pp. 297 and 298, puts it this way:
How is membership in an Aboriginal people determined? Although various tests have been employed over the years, for various purposes in various jurisdictions (degrees of consanguinity, bureaucratic discretion, family status, individual choice and so on), the method that has won widest acceptance in recent years is a modified self-determination approach, consisting of three elements: some ancestral family connection (not necessarily genetic) with the particularly Aboriginal people; self-identification of the individual with the particular Aboriginal people; and community acceptance of the individual by the particular Aboriginal people.[# 50] It is sometimes suggested that a fourth element is also required: a rational connection, consisting of sufficient objectively determinable points of contact between the individual and the particular Aboriginal people, including residence, past and present family connections, cultural ties, language, religion and so on, to ensure that the association is genuine and justified. The more common view, however, appears to be that while these criteria can be used to determine whether an individual should be accepted as a member, they are not primary components of the test.
[# 51] The Commission, in its report,
makes the following recommendation (4.5.2) with respect to Métis
identity:
4.5.2 Every person who
(a) identifies himself or herself as Métis and
[# 52] As was found by the trial judge, and as evidenced in the Agreed Statement of Facts filed as Exhibit 1 at the trial, the respondent Steve Powley was a card carrying member of the Ontario Métis and Aboriginal Association on October 22, 1993, the date of the alleged offence. He applied on April 20, 1990, for membership in the local known as Bruce Mines OMAA Native Voice, on his own behalf, and on behalf of two of his children, including the respondent Roddy Charles Powley. His application was approved by the local president and board and signed off by his first cousin, Mr. Art Bennett, who as the trial evidence demonstrated, also self-identified as a Métis and who gave evidence as to the existence of a Métis community around the Sault Ste. Marie area. Mr. Bennett gave the following evidence at the trial relating to OMAA and the local Métis community:(b) is accepted as such by the nation of Métis peoplewith which that person wishes to be associated, on the basis of criteria and procedures determined by that nation be recognized as a member of that nation for purposes of nation to nation negotiations and as Métisfor that purpose.
Q. So, Mr. Bennett, were the people organized at all? You say there's a Métis community here. Were they organized in any way at all before OMAA came along?
A. Not that I know of.
Q. Now in your ... in your opinion, let's just ask it straight out. Did OMAA 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 OMAA brought us together politically.[# 53] The membership card issued to Steve Powley dated October 18, 1990, was signed by Olaf Bjornaa, and it identified this respondent as a member of the "Bar River Local". Furthermore, as demonstrated by the extracts of evidence from William Bouchard, Bar River Native Voice was identified as a Métis community or as an organized local or council of Métis people in the Sault Ste. Marie area.
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 this region, 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.[# 54] The evidence discloses that after the date of the offence "Mr. Powley" joined MNO and was issued a harvester's certificate in 1997.
[# 55] Mr. Tony Belcourt gave evidence on behalf of the respondents. He was, during the time of the trial proceeding, the president of the Métis Nation of Ontario. As is reflected in Exhibit 8 filed at trial, "a person is entitled to be registered as a citizen of the Métis Nation who a) is alive, b) self-identifies as Métis (that is considers themselves to be an aboriginal person), d) is distinct from Indian or Inuit (that is, a person who is not registered on any band list), e) has genealogical ties to aboriginal ancestry, f) who is accepted by the Métis Nation".
[# 56] As to community acceptance, Mr. Belcourt stated as follows:
A. We are a people. It's not a matter of individuals. There's a difference between an individual saying I'm Métis and the Métis Nation identifying who the Métis are or verifying who the Métis are.
Q. I think some of the problem comes that we're usingthe word for two different things.
A. Oh, definitely. Some people are using it ... well, I don't want to ... I don't want to ... I don't know what's behind the reasoning of some people other than those who come to the Métis Nation and wish to register and identify as a Métis and the rest of the community accepting them.[# 57] Mr. Belcourt indicated at trial that the Métis Nation of Ontario "represents the Métis who are registered in the Métis Nation of Ontario", and then stated:
We have regions, we have nine regions and we have counsellors for each of the nine regions and within each of those regions, the communities themselves establish local community councils so they administer the affairs and govern at the local level.[# 58] The Algoma area is identified as Region 4, and approximately 350 Métis are registered with the MNO for or within this region. Mr. Belcourt went on further to explain what he meant by the term "community acceptance", as this related to membership in the MNO:
A. It's always been our intention to...to put into practice what is recognized internationally as a norm for recognition of peoples and that is self-identification and community acceptance. Community acceptance for us means that we must give the community the opportunity to accept the people who have been registered. We have, therefore, decided that because we were just starting the Registry in particular for our first fifteen months of operation we didn't have any funding, they worked at the resources to be able to do the kind of diligent observations or research to confirm the Aboriginal ancestry or to make sure everybody had all of their documents in at the very outset and so we issued temporary reg ... temporary memberships. Some of our people who are long-standing, well-known Métis people in this Province, at that time are older and didn't have the resources themselves to get some of these documents in. so, we all have what's called a temporary card. This year, in fact right now, we are advertising for a Deputy Registrar, a Genealogical Officer and a Clerk to take over management now of the Registry office to move us into the next phase of permanent Registry process. We must, at the community level, define a group, a commission that would examine the applications and then make recommendations to the community for the acceptance, formally and finally of the applicants. And we will be, we're defining our process for that right now, but generally, we will be appointing to these commissions, not unlike enrolment committees of First Nations or enrolment committees of the Algonquin First Nation, forexample. People who are acknowledged far and wide and being Métis, who are accepted and appointed by the Métis National Council, recognized without question, who would be our enrolment or Registry Commissions at the community level. And when I say community I don't know if we're talking about each specific community having its own commission or whether within one region, we might have a committee. We have to work those details out. The intention then is that every file would be submitted to those relevant communities and committees and they would then review them, finalize them, ensure that every pieceof documentation is there and then move the name forward to the community for adoption. ...[# 59] Black's Law Dictionary (6th ed.) (St. Paul, Minn: West Publishing Co., 1990), describes "community" as:
Neighborhood; vicinity; synonymous with locality. People who reside in a locality in more or less proximity. A society or body of people living in the same place, under the same laws and regulations, who have common rights, privileges, or interests. It connotes a congeries of common interests arising from associations - social, business, religious, governmental, scholastic, recreational.[# 60] In my view, the learned trial judge was correct, when he found, on all of the evidence, that the respondents were Métis who had been accepted into "contemporary Métis society", at the time that the offences were alleged to have taken place. This is especially so, given that Art Bennett, a member of the local Métis community, in essence accepted Steve Powley and Roddy Charles Powley as members of a local
community Métis organization. Furthermore, Steve Powley's membership card identified him as a member of the Bar River Local which in fact, as established through the evidence of William Bouchard, was a locally recognized Métis community.