R. v. Howse - Part 5

Are Defendants Métis?

 [#11]     After considering all the evidence presented by each of the defendants regarding his own history and genealogy and applying the definition of Métis fixed by Justice O'Neill in R. v. Powley, (supra), I find that John Grant Howse, Dan LaFrance, Leonel Courchaine, Frederick Laboucane, and John Pratt are Métis people.

 [#12]     In R. v. Powley, (supra), O'Neill J. made a number of very significant decisions in coming to the determination of who qualifies as a "Métis" in circumstances where the Métis right asserted is site-specific.  I agree wit him on the following:

1)   He rejected a requirement of a genealogical tie by blood to the original Métis inhabitants of the community.

2)   He found that ancestral links may be non-genetic, and as deeply cherished as blood connections.

3)   He found that a blood quantum requirement reveals little about how a person defines his or her own identity in relation to the Métis community.

4)   He found that an onus on the claimant for proof of a genalogical tie would place too great a burden on the Métis claimant and that would too easily lead to the extinguishment of Métis rights through attenuated blood lines.

5)   He held that objectively determinable ties of a claimant to a local Métis community were unacceptable and not required.

 6)   He held that aboriginal rights are collective rights with each member of the collectivity with a personal right to exercise, or not, the aboriginal right. Further, each of the claimants asserting the aboriginal right must be a member of that aboriginal community, but each individual in the community does not have to meet an individual cultural means test. He found that such a requirement would be arbitrary  and inconsistent with a purposive analysis of the aboriginal rights protected by s. 35 of the Constitution Act, 1982.

7)   He rejected the argument that the requirement of acceptance "by the Métis" could be satisfied only if given by a local Métis community in continuity with an historic Métis community, and not by voluntary service and political organizations like the Ontario Métis Aboriginal Association and the Métis Nation of Ontario.  He held that to insist that Métis identity be tied to an existing and flourishing community, but without regard to recognized Métis associations, ignored the historic reality that the Métis people and culture had suffered from prejudice as a result of discriminatory governmental policies.  He held that an aboriginal people who resided in a community or locality in more or less proximity to one another, who shared the same culture or interests, but who were not in any way formally recognized by government, could collectively organize and form a local association, branch or chapter for the  purposes of crystallizing and shaping their community.

8)   He approved of the aboriginal rights analysis conducted by Vaillancourt, Prov. J. where he adapted the aboriginal rights analysis applicable to non-Métis aboriginal people to Métis people by assessing whether hunting for food was a practice integral to Métis society at the time when "effective control" of the area was taken over by European based culture.  He stated that the Métis have aboriginal rights, as people, based on their prior use of the land and its occupation as apeople.  He stated that it is a matter of fairness and fundamental justice that the aboriginal rights of the Métis which flowed from this prior use and occupation, be recognized and affirmed by s. 35(1) of the Constitution Act, 1982.

9)   O'Neill J. approved the trial judge's findings that the contemporary Métis Community in Sault Ste. Marie had always existed, except that it was, until the early 1970's an invisible entity caused by shame, ostracization, and prejudice.  He found that Métis communities could not be packaged up and described in the same fashion as a recognized indian reserve. He stated that 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 wrongful practices that the federal government admitted in its Statement of Reconciliation in 1998.

Assessment of Aboriginal Rights

 [#13]     In R. v. Powley, (supra), O'Neill states:
 

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.  This stage requires that the court 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 stagethe court 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. I shall return to the process of assessing the aboriginal  right to hunt for food which the defendants claim after considering the testimony of the defence witnesses.

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