R. v. Howse - Part 7
R. v. Howse - Part 7
[#31] The right claimed by all of the defendants is the right to hunt for food. When you think of it, it really is as basic as rights go. All of the defendants share a common ancestry, common family upbring, common association with shame, ostracization, and discrimination, common hunting, fishing and food gathering experiences. Unfortunately they all experienced the unnecessary inappropriate comments of the conservation officers. I find that from the earliest of times when the fur trade penetrated west of the Rocky Mountains people of Métis origin lived off the land by hunting wildlife, fishing and food gathering in the Rocky Mountain Trench where the organized October 1997 Métis hunt took place. The evidence establishes that Métis people have suffered discrimination and prejudice from all sides including the inequality of treatment by provincial governments across Canada. Specifically, the inequality of treatment by the Wildlife Conservation officers and their political masters. It would be difficult if not impossible for the British Columbia Provincial Government and the Wildlife Branch to argue that they have not had enough time since the coming into force of the Constitution Act, 1982 to set up a process to determine the practice, customs or traditions of aboriginal Métis claims that would most definitely arise. Hunting, fishing and food gathering is a pretty basic right to aboriginal peoples.
[#32] The second stage of the process
in assessing a claim to an aboriginal right is for the court to 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 whether it has remained
an integral part of the culture of the community in that sense. This
stage of assessing the claim of the right to hunt is answered by reflection
of the testimony of all the defence witnesses. 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. The evidence indicates that the Métis lived off
the land for subsistence purposes. Hunting was of central significance
to the Métis, and integral to their distinctive society.
[#33] I find that the defendants are Métis who were exercising their aboriginal right to hunt. Dan LaFrance, the Provincial Métis Captain of the Hunt was accepted into the Kootenay contemporary Métis society at the time the offences were alleged to have taken place. The other defendants are card carrying members of the local Métis association. They have a presence into the local contemporary Métis society.
[#34] During the trial, Dan LaFrance
filed the British Columbia Proclamation declaring November 16, 1996 as
"Métis Day". The Proclamation reads as follows:
Whereas the Métis people are recognized as one of Canada's aboriginal peoples pursuant to section 35 of the Constitution Act, 1982, and
Whereas the Métis culture, rich in spiritual beliefs and colourful traditions, is an integral part of British Columbia's multicultural diversity, andWhereas throughout history, Métis citizens have made significant contributions to the development and success of our Province.
I agree entirely with Dan LaFrance and John Grant Howse
that government proclamation is a significant acknowledgement. Dan
LaFrance pointed out that Louis Riel was hung on November 16.
[#35] There is no evidence to suggest that the hunting rights of the Métis have been extinguished. Section 35(1) of the Constitution Act, 1982 protects existing aboriginal rights. R. v. Sparrow, (supra), at p. 174 makes it clear that extensive regulatory control by government does not imply extinguishment.
[#36] Essentially, I have come to the last set of questions in this process: Does the regulatory scheme infringe the preferred method of exercising the practice, custom or tradition? If so, is the infringement minimal and has it been justified? If the Métis aboriginal right to hunt for food has not been extinguished, has the right been infringed by the Provincial Government through legislation. Any infringement must be justified. The evidence presented at trial indicates unequivocally that the government of British Columbia has not recognized or affirmed the aboriginal hunting rights of it's Métis citizens. In R. v. Sparrow, (supra), the Supreme Court of Canada held that the first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1). In this case, I find that the aboriginal right of Métis people in British Columbia to hunt moose and deer is interfered with by the regulatory scheme currently in place. There has been no consultation with the local or provincial Métis councils, associations or elders concerning aboriginal hunting rights.
[#37] Crown counsel in closing argument
said that the Crown does not have to get into proving justification until
there has been a finding that there has been an infringement or breach
of the aboriginal right to hunt for food. The justification test
is outlined in R. v. Sparrow, (supra):
If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addressed the question of what constituties legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows:
First, is there a valid legislative objective?...If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretative principle derived from Taylor and Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determing whether the legislation or action in question can be justified... we would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification. Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts, and indeed all Canadians.
In the case at bar, there is evidence that the First Nations
aboriginals have not been excluded from the aboriginal allocation of moose
and deer. From the evidence at trial there is evidence that any non-aboriginal
who qualifies for a hunting licence is not excluded from the annual sport
hunting quota or allocation of moose and deer. Indeed several of
the defendants were able to purchase wildlife tags. Further, it is
clear from the evidence of Dan LaFrance that British Columbia officials
have not consulted with the Métis organizations in British Columbia
while sport hunting, and other aboriginal allocations are in effect.
The Supreme Court of Canada addressed these issues in R. v. Adams [1996]
3 S.C.R. 101 at 134,135, and again recently in R. v. Marshall [1999] S.C.J.
No. 66, where at para. 43, it stated:
Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights. The Court has emphasized the importance in the justification context of consultations with aboriginal peoples.
I find the following:
(1) On the agreed admission
of facts, the Crown has met
its
onus regarding the offences charged.
(2) All of the defendants have
met their onus in showing
that
they have an aboriginal right to hunt pursuant
to
s. 35 of the Constitution Act, 1982 and
accordingly
the charges against the accused are
dismissed.
WAURYNCHUK PROV. CT. J.
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