[para68] The Crown has gone to great pains to narrow the issues in this trial to Sault Ste Marie proper. I find that such a limited regional focus does not provide a reasonable frame of reference when considering the concept of a Metis community at Sault Ste Marie. A more realistic interpretation of Sault Ste Marie for the purposes of considering the Metis identity and existence should encompass the surrounding environs of the town site proper.
[para69] I agree with the general principle that Aboriginal rights are very much site specific. This principle is addressed in the next heading of this judgment.
[para70] The lifestyle of the Metis more closely resembled the Indians that occupied this area and it would seem more reasonable to find the existence of the Metis on the fringes of the geographical boundaries of Sault Ste Marie. Many of the witnesses made reference to communities and areas surrounding Sault Ste Marie including Batchewana, Goulais Bay, Garden River, Bruce Mines, Desbarates, Bar River, St. JosephÌs Island, Sugar Island and into Northern Michigan.
para71] It is not surprising considering the lifestyle of the modern Metis to find them as more visible entities in the more rural and outlying communities surrounding Sault Ste Marie. Their existence in the aforementioned area would be consistent with their original affiliation with the local native population. (iv) There was an historic Metis society
[para72] The Supreme Court in Van der Peet (supra) held that Aboriginal rights inherent in pre-existing Aboriginal societies. At p. 193, Chief Justice Lamer expressed himself as follows. ÏIn my view, the doctrine of Aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal and constitutional, status. More specifically, what s.35(1) does is provide the constitutional framework through which the fact that Aboriginal lived on the landin distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.Ó
[para73] In R. v. Adams [1996] 4 C.N.L.R. 1 at p. 11 para. 26, the Supreme Court of Canada makes it clear that Aboriginal peoples do not have to prove Aboriginal title in order to claim harvesting rights. Lamer C.J. writes that:
ÏIn Van der Peet, at para. 43, Aboriginal rights were said to be best understood as, ... first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive Aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory."
From this basis the Court went on to hold, at para. 46, that Aboriginal rights are identified through the following test:
"... in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right."
What this test, along with the conceptual basis which underlies it, indicates, is that while claims to Aboriginal title fall within the conceptional framework of Aboriginal rights, Aboriginal rights do not exist solely where a claim to Aboriginal title has been made out. Where an aboriginal group has shown that a particular activity, custom or tradition taking place on the land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an Aboriginal right to engage in that practice, custom or tradition.
The Van der Peet test protects activities which were integral to the distinctive culture of the Aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central significance to their distinctive culture sufficient to make out a claim to Aboriginal title to the land. Van der Peet establishes that s. 35 recognizes and affirms the rights of those peoples who occupied North America prior to the arrival of the Europeans, that recognition and affirmation is not limited to those circumstances where an Aboriginal groupÌs relationship with the land is of a kind sufficient to establish title to the land.Ó
[para74] The evidence adduced at trial shows that the Ojibway people lived in the Sault Ste Marie area before contact with Europeans. The Ojibway moved from their woodland territory on the shores of Lake Superior and Lake Huron to the sub-Arctic areas on a seasonal basis. The Ojibway had a broad based economy which included hunting, fishing, agriculture and harvesting maple sugar. They had established an extensive fur trading system well in advance of the arrival of Europeans.
[para75] In the mid 17th Century, Jesuits and French fur traders appeared in the Upper Great Lakes region. The arrival of the French fur traders soon led to marriages between the Ojibway women in the area with the traders. The resultant family groups of mixed-blood families evolved into a new group of Aboriginal people, now known as the Metis. Although the Metis shared many customs, practices and traditions of the Ojibway, they were distinctive and separate from the Ojibway.
[para76] The evidence shows that the Metis were visually, culturally and ethnically distinct. This point is well illustrated in Exhibit #31, Dr. RayÌs Supporting Documents Vol. 3, Tab 7, Many Roads to Red River by Jacqueline Peterson, at p. 41, where Peterson observes that: ÏThese people [referring to the Metis] were neither adjunct relative-members of tribal villages nor the standard bearers of European civilization in the wilderness. Increasingly, they stood apart or, more precisely, in between. By the end of the last struggle for empire in 1815, their towns which were visually, ethnically and culturally distinct from neighbouring Indian villages and Ïwhite townsÓ along the eastern seaboard, stretched from Detroit and Michilimakinae at the east to the Red River at the northwest. ... such towns grew as a result of and were increasingly dominated by the offspring of Canadian trade employees and Indian women who, having reached their majority, were intermarrying among themselves and rearing successive generations of Metis these communities did not represent an extension of French, and later British colonial culture, but rather Ïadaption[s] to the Upper Great Lakes environment.Ó
[para77] The Report of the Royal Commission for Aboriginal Peoples (Exhibit #21) at pages 259-260 has recognized that the Aboriginal population at Sault Ste Marie included a distinctMetis people. ÏIt is indisputable that the distinct Metis communities of Ontario - in locations as widespread as Burleigh Falls (near Peterborough), Moose Factory (on James Bay), Sault Ste Marie mid Rainy River (in the north and west of Thunder Bay) - have long and unique histories, as well as indisputable claims to recognition of their Aboriginal origins and entitlements. The Metis community at Sault Ste Marie, a hub of early fur-trade activity, has a particularly long and eventful history. It would appear, in fact, that the area was largely under Metis control from the late seventeenth to the mid-nineteenth century.Ó
[para78] The evidence at trial suggests that the visibility of the Metis at Sault Ste Marie waned after the treaty in 1850 and moved into the surrounding areas. The events at Red River in 1870 signalled a time when claiming Metis status was not advantageous. The Metis quietly became the Ïforgotten peopleÓ. (v) Is there a contemporary Metis society at Sault Ste Marie?
[para79] The evidence called on behalf of the Powleys support the contention that Sault Ste Marie has a Metis community today. There are groups of Metis persons located in the smaller communities surrounding Sault Ste Marie. Mr. Olaf Bjornaa and Mr. Art Bennett provide interesting personal knowledge of the community as well as information as to the current status of the local Metis population.
[para80] This community had continued to be an invisible entity within the general population. It was only in the early 1970Ìs that individuals became more public as to their heritage. The Ontario Metis Aboriginal Society provided a more organized structure with a higher profile. Subsequently, another organization, the Metis Nation of Ontario has also become a voice for Metis concerns.
[para81] The invisible nature of the local Metis people can best be garnered from the evidence of Bennett and Mr. Bjornaa.
[para82] The following excerpts from Volume One of the transcripts illustrate Mr. BennettÌs poignant observations: P. 282:
Ï... shame is just something thatÌs inflicted upon you as you grow up as a child and I think a lot of Native people grow up with shame because theyÌre made to feel this way about White society. I know as a child myself in Bruce Mines growing up, it was a battle. We were picked on because we were half Indian, considered half Indian. I can remember being called Squaw man and things being said about my mother because she was a little darker than the rest of the white people in the community. So you grow up. Even my own paternalgrandmother referred to my mother as a squaw that married her son and I knew there was tension between my mother,and my grandmother and I felt that I was ... wasnÌt a good thing to be, you know.
P. 285: Q. Now, you say that ... that your mom married, that your motherÌs mother, IÌm sorry, married a white man and what happened to her as a result of that marriage?
A. She was ostracized by her own people for a long time because she married a while man and I know she was asked to leave the reserve cause back in those days, the Native woman could not marry a white man and maintain their status so she had to leave the reserve ...
P. 290: Q. Do your brothers and sisters identify with Metis? A. Some do and some donÌt. Q. Can you tell us why that is?
A. I think my oldest sister, she was very close to my fatherÌs mother, my maternal grandmother and I think sheÌs embarrassed with the fact that sheÌs Indian. ThatÌs she ... actually, she doesnÌt even want to admit that sheÌs part Indian. Myself, IÌm quite proud of the fact that thereÌs Indian blood coursing through my veins and I think some of the other family members are too and some are indifferent. They donÌt care one way or the other, so ...
Q. Now, what about some ... do you have cousins who identify as Metis? IÌm trying to get the rest of the family.
A. Yes, I do.
Q. Yes? And are the Powleys one of those?
A. Yes they are.Ó
[para83] Mr. BjornaaÌs comments can be found in Volume IV of the Transcripts as follows? Pp. 181-2:
ÏQ. And how long did you go to school?
A. Well, I didnÌt go very long. When I first started there was two schools within Batchewana Bay. There was ... was for the Natives at the village and down the Bay was for the non-Natives. When me and my sister first started, we started down the Bay at the white school. We were told we were Natives. We couldnÌt ... we didnÌt belong there. Then we went up to the other school and we were told we were non-Natives. We didnÌt belong there and my mother said this is the problem with being Metis. YouÌre almost a (non?) person in your own homeland.
P. 184: Q ... how did your mother identify?
A. As a Metis.
Q. And did she use that actual word?
A. Yes. She ... she always explained to us that with our culture, we donÌt belong to the white society or the Treaty side. We are Metis and we were raised as Metis.
Pp. 184-5 Q. Now, your ... your motherÌs mother, Julie, did ... did she ... how did she identify?
A. She identified us ... us children as Metis. When she got married, she lost her status, she was what you call a red ticket holder and she brought us up as grandchildren to say that you know, she was almost like a castout with her own Band, so she said us people, us kids would never belong there either, so if we were Metis this is what sheÌs always ... our Gramma told us. (b) What is the relevant time/date for determining the existence of the right claimed?
[para84] The Supreme Court in Van der Peet (supra) held that the time period that a court should consider in identifying whether the specific right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior of contact between aboriginal and European societies. (See: van der Peet at p. 205, para. 60-61)
[para85] This period of contact was determined in the Adams case (supra) as 1603. This case demonstrates that the court is to examine when there was effective control by the European power when ascertaining the period of time prior to contact. (My emphasis) At p. 18, the court observed that: Ï... The arrival of Samuel de Champlain in 1603, and the consequent establishment of effective control by the French over what would become New France, is the time which can most accurately [be] identified as ÏcontactÓ for the purposes of the Van der Peet test.Ó
[para86] If the first test of Van der Peet were to be strictly applied to the Metis there would be no need to proceed any further since the Metis formed as a result of the merging of the Indian and European people into a distinct aboriginal society. The Supreme Court recognized that the strict application of the Ïcontact testÓ would have to be subject to modification as it applied to the Metis at p. 206, para. 67.
ÏAlthough s. 35 includes the Metis within its definition of Ïaboriginal peoples of CanadaÓ, and thus seems to link their claim to those of other Aboriginal peoples under the general heading of Ïaboriginal rightsÓ, the history of the Metis and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other Aboriginal peoples in Canada. As such, the manner in which the Aboriginal rights of other Aboriginal peoples am defined is not necessarily determinative of the manner in which the Aboriginal rights of the Metis are defined. At the time when this Court is presented with a Metis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Metis claim, be able to explore the question of the purposes underlying s. 35Ìs protection of the Aboriginal rights of the Metis people, and answer the question of the kind of claims which fall within s. 35(1)Ìs scope when the claimants are Metis. The fact that, for other Aboriginal peoples, the protection granted by s. 35 goes to the practices, traditions and customs of Aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to that question. It may, or it may not, be the case that the claims of the Metis are determinedon the basis of the precontact practices, traditions and customs of their Aboriginal ancestors; whether that is so must await determination in a case in which the issue arises.Ó
[para87] The pre-contact concept must be applied with enough flexibility to give effect to the purpose of preserving the culture of Aboriginal peoples. There is obviously going to be a time of transition when a society evolves in response to a more dominant societal group. Accordingly, one must view the practices, customs and traditions of a society before they were replaced or at least significantly altered by European influences.
[para88] When one is examining the Upper Great Lakes area, it is necessary to carefully examine the concepts of ÏcontactÓ and Ïeffective controlÓ as it relates to the original Indian society and the subsequent Metis community.
[para89] First contact at Sault Ste Marie between the Indians and the Europeans occurred when the French Jesuits established missions around 1615. As time passed, French traders frequented the area and in 1750, the Hudson Bay Company established its first fur trading post. Dr. Ray advised that the Ojibway may have actually met Europeans as much as a century before there was an actual meeting of the two cultures at Sault Ste Marie. This would have occurred as a result of the OjibwayÌs extensive trading practices.
[para90] Although there may have been contact, Dr. RayÌs evidence would suggest that the Upper Great Lakes area was under almost exclusive tribal domination until at least 1815-1820. Sometime between 1815 and 1850, the area evolved into one where effective control passed from the Aboriginal peoples of the area (Ojibway and Metis) to European control.
[para91] The unique Metis society was established and recognized for its distinctiveness. That being the case, one must determine whether hunting for food was a practice that was integral to the Metis society at the time when effective control of the area was taken over by the European based culture. (c) What is the correct characterization of the right claimed?
[para92] The right claimed by the Powleys is the right to hunt for food. Steve Powley clearly expressed this intention. He attached a tag to the moose that had been shot indicating that the meat was to be used as food for the winter.
[para93] The evidence indicated that the Ojibway and Metis 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 ascenario 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 justbecause 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.
[para94] The right to hunt is not one that is game specific. The evidence makes it clear that prior to the1820Ìs that moose would have been past of the Ojibway and Metis 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.
[para95] 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.
[para96] There was no evidence called to suggest that the moose killed by the Powleys was to be used for anything but food.
[para97] In addition to the aboriginal claim to hunt, counsel for the Powleys also maintain that they have a right to hunt under the Robinson Huron Treaty. Although the Powleys are not now and never have been registered as Indians under the Indian Act or any Indian Band, the evidence shows that the Powleys have roots back to the Lesage family, one of the signatories to he Robinson Huron Treaty of 18.50.
[para98] The courts in R v. Fowler [1993] 3 C.N.L.R. 178 and R v. Chevrier [1989] 1 C.N.L.R. 128 have ruled that treaty rights are inherited and are not determined by whether or not an individual Aboriginal person is listed as an Indian underthe Indian Act. The Powleys rely on the fact that they are direct descendants of beneficiaries of the Robinson Huron Treaty and claim its protection for their hunting rights.
[para99] The Robinson Huron Treaty of 1850 (Exhibit #43) reads in part: Ï... and further, to allow the said Chiefs and their tribes the full and free privilege to hunt over the territory now ceded by them, and to fish in the watersthereof, as they have heretofor been in the habit of doing, saying and excepting such portions of the said territory as may from time to lime be sold or leased to individuals or companies of individuals and occupied by them with the consent of the Provincial GovernmentÓ.
[para100] I find that any claims made by the Powleys under the Robinson Treaty have not been established. As I understand the evidence regarding the Robinson Huron Treaty 1850, Robinson made it very clear that he did not want the Metis included as part of the Treaty. I have already referred to the prevailing attitude toward the Metis exclusion at p. 15 of this judgment. (d) Is the right claimed a practice, custom or tradition which was exercised by the Metis?
[para101] Dr. Ray testified that the economy of the Metis people in Sault Ste Marie historically was similar to the Ojibway economy. 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. (e) Is the right claimed integral to a distinctive Metis society?
[para102] In Van der Peet, the Supreme Court, stated at p. 204 that: ÏThe claimant must demonstrate that the practice, tradition or custom was a Central and significant part of the societyÌs distinctive culture. He or she mustdemonstrate, in other words that the practice, tradition or custom was one of the things which made the culture of the society distinctive - that it was one of the things that truly made the society what it was.Ó
[para103] In Adams, the Supreme Court applied the Ïintegral to their distinct society testÓ when they were considering the importance of fishing within the Mohawk tradition.
[para104] Similarly, with respect to the case at bar, one must ask oneself whether hunting was an integral part of the original Metis community. The evidence presented at trial would support the conclusion that hunting was an integral part of the Metis culture prior to the assertion of effective control by the European authorities. (f) Do the Metis continue to exercise the practice, custom or tradition?
[para105] Hunting was carried on through the years by the Metis. The Census of Canada 1861, 1881, and 1891 show several Metis listed as hunters. Ms. Jones, the CrownÌs historical expert, referred to the Sessional Papers (Exhibit #57) which listed hunting infractions in the Sault Ste Marie made in 1897. A Mr. Collins was charged with moose hunting. Ms. Jones testified that Collins was a well known Metis family, in Sault Ste Marie.
[para106] Mr. Bjornaa and Mr. Bennett indicated that hunting continues to be an important aspect of Metis life. I prefer to use their direct evidence to illustrate this fact.
Ï... Like Lizard Island, you take people from Gros Cap, Goulais Bay, Batchewana, all moved up to those islands, spent the summers there, took their families. They were all Metis families. I mean the foundations and the buildings are still there. When they went up there, they took their families up, they spent the summer, they commercial fished, they harvested their meat and stuff off the mainland, they went over to Blueberry Island and picked berries for the year to put away and these people migrated back and forth. When I was a kid, I remember. I remember being up to those islands and places.Ó (Transcript Volume IV, p. 189 - Bjornaa)
ÏI felt that ... that there was a body of Metis people because we had to be together. We wanted something, we had to stick together at it. Like, I know at one time, people going hunting, if they shot a moose it was shared. There was a gathering, like there was people as a group. One family didnÌt take all the moose. The moose went to numbers of families there. The elders were looked after and stuff, so I really felt there was in a way there was a political bond.Ó (Transcript, Volume IV, p. 191 - Bjornaa)
ÏOK, when I was a kid, probably the meat and fish we ate, I bet you 90% of what we ate come out of the bush. Now, IÌd say probably around 75, 80%. I actually prefer the taste of moose, even venison, I prefer venison over moose. If anybodyÌs a connoisseur of wild game, IÌm ... venison tastes better than moose, but ya, probably 75 to 80% of the meat we consume now is wild game, includingfish.Ó (Transcript, Vol. I, pp. 302-3)
[para107] The foregoing evidence that the Metis continue their hunting tradition is bolstered by Steve PowleyÌs clear declaration on the tag he had affixed to the carcass which included a declaration that the animal was for his winter food. (g) Has the right been extinguished?
[para108] There was no evidence adduced at trial to suggest that the hunting rights of the Metis have been extinguished. Section 35(1) protects existing Aboriginal rights and Sparrow (supra) at p. 174 makes it clear that extensive regulatory control by government does not imply extinguishment. The Crown then concluded that if the Powleys are basing their claim on the Robinson Huron Treaty 1850 then the payments to the Metis through the Indian chiefs resulted in the extinguishment of their Aboriginal rights. I dismiss this contention on the basis that the Powleys are not beneficiaries of the Treaty.
(h) 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?
[para109] Although Aboriginal rights may not have been extinguished, it must also be recognized that those rights may be infringed by both the federal and provincial governments through legislation. However, any infringement must bejustified (See: Delgamauukw v. B.C. [1998] 1 C.N.L.R. 14 at p. 75).
[para110] The evidence at trial demonstrates that the government of Ontario has not recognized or affirmed the aboriginal hunting rights of the Metis in Ontario under the Game or Fish Act or the Interim Enforcement Policy 1991(IEP) (Exhibit 15). IEP, s. 5 Metis and Non-Status People The Game and Fish Act, the Fisheries Act, and the Migratory Birds Convention Act and the regulations enacted pursuant to those Acts, will continue to apply in respect of harvest of wildlife and fish by Metis and non-status Indians unless or until agreements have been entered into with the Metis and non-status Indiancommunities providing for such harvest. Where the Provincial Government has entered into negotiations concerning harvest of wildlife and fish for personal consumption with Metis and non-status Indian communities where such harvest is integral to the lifestyle of the community, written permission of the Deputy Minister of Natural Resources will be required before planned enforcement procedures regarding the harvest of wildlife and fish by members of that community will be taken.
[para111] Although the preamble for the IEP expresses the wish of the Provincial government to minimize the number of instances where aboriginal people are in conflict with harvesting legislation, the fact remains that no concrete progress seems to have evolved.
[para112] In a letter date stamped December 21, 1995, (Exhibit 17), the then Minister of Natural Resources, the Honourable Chris Hodgson wrote that: Ï... At the present time, the Ontario Government does not recognize Metis people as having any special access rights to natural resources.Ó
[para113] Likewise, Mr. S. Jones, a forest ecologist with the Forest Evaluation and Standards Section, Forest Management Branch of the Ontario Ministry of Natural Resources, indicated that the applicability of the Interim Enforcement Policy is directed towards First Nations Aboriginal people. He agreed with counsel for the Powleys that ÏItÌs not for the MetisÓ. (Transcript , Vol. 5 at p. 191 - Note that the original transcript omits the word not. However, the court reporter confirmed that not should have appeared in the transcript. Mr. Long, for the Crown, also conceded that not should be included in the response by the witness.)
[para114] When the Supreme Court of Canada considered section 35(1) and the regulation of the fisheries in Sparrow, it observed at p. 182 that: ÏThe 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.15(1).
[para115] In the case at bar, I find that the MetisÌ aboriginal right to hunt moose and other game is interfered with by the regulatory scheme currently in place in Ontario. There is no corresponding right to hunt by non-Aboriginal people but rather those individuals have a privilege to hunt in accordance with licensing provisions. (My emphasis) The MetisÌ right to hunt is derived from their customs, traditions and practices. Hunting, including the hunting of moose, wasand continues to be an integral part of their culture.
[para116] The British Columbia Court of Appeal in R v. Alphonse [1993] 4 C.N.L.R. 19 at p. 60, addresses the consequences between an Aboriginal person being prevented from exercising an Aboriginal hunting right as opposed to a non-Aboriginal having his statutory privilege to hunt curtailed in the following passage:
ÏBut the situation is entirely different when the right that an Indian is being prevented from exercising is either an incident of Aboriginal title to the exclusive possession, occupation, use an enjoyment of land and its resources, of an Aboriginal hunting right. In either case, the right is derived from the customs, traditions and practices of the Indian people in question, and has been nurtured and protected as an integral part of their distinctive culture since before British sovereignty was first asserted, and has been incorporated into the common law and protected by the common law ever since. When an Indian is prevented from exercising such a fundamental right, a right that is now constitutionally recognized, affirmed and guaranteed by s. 35 of the Constitution Act, 1982, he is suffering a qualitatively different consequence than the consequence that is visited on both Indians and non-Indians when their statutory hunting privilege is not extended to the closed season.Ó
[para117] Has this right to hunt been infringed? The onus of proving whether there has been an infringement rests with the party challenging the legislation. Again, in Sparrow, the questions to be determined to see if a right has beeninterfered with have been set out at p. 182 as follows: ÏFirst, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right theirpreferred means of exercising that right?Ó
[para118] Let us examine each of these questions in order to determine whether the regulatory scheme infringes the s. 35 rights of the Metis to hunt.
[para119] Is the limitation reasonable?
[para120] Although the Province of Ontario recognizes that status Indians have s. 35(1) rights to hunt and fish, the Metis have not been accorded similar status. It might very well happen that a Metis person could be denied the right to hunt for food in the interests of conservation while treaty Indians could continue to hunt. There is no evidence before this court to warrant this disparity as between the two Aboriginal groups.
[para121] What undue hardship befalls the Metis?
[para122] The current regulatory scheme harms the Metis hunters as compared to the Indian hunters. Whereas the Indians may hunt outside officially sanctioned seasons, the Metis are prohibited. Shorter seasons have negative impact on the MetisÌ ability to harvest sufficient provisions for their families. Currently, Metis hunters are subject to a lottery for a set number of adult moose tags. This restricts their hunting opportunities. Confiscation of animals not bearing appropriate tags result in lost provisions for their families. If the Metis are charged under the Game and Fish Act for hunting without a licence they may incur the expenses associated with defending themselves in court.
[para123] Does the regulation deny the holders of the right their preferred means of exercising that right?
[para124] If the Metis exercise their Aboriginal rights without the benefit of a licence, they are not only putting themselves at risk of legislative sanctions but they have are forced to skulk through the forests like criminals as opposedto hunters exercising their constitutional rights. It was apparent from the evidence that was called in this trial that many Metis hunters are reluctant to chance being charged and having their game and weapons seized by the Ministry of Natural Resources. Therefore, the Metis are denied their preferred means of exercising their Aboriginal rights.
[para125] I also conclude that the regulations are not minimal. Having reached that conclusion, one must then decide whether the regulatory scheme can be justified under all of the circumstances.
[para126] Scott Jones made it clear that the policy relating to moose hunting is conservation. Conservation has been long recognized as a legitimate objective which can justify the infringement of Aboriginal rights. In Jack v. The Queen [1980] 1 S.C.R. 294 at 313, the Supreme Court expressed this opinion as follows: ÏConservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognized and given effect to. They do not claim the right to pursue the last living salmon until it is caught.Ó
[para127] Likewise, the Supreme Court in Sparrow observed at p. 184 that ÏThe problem that arises in assessing the legislation in light of its objective and the responsibility of the Crown is that the pursuit of conservation in a heavily used modem fishery inevitably blurs with the efficient allocation and management of this scarce and valued resource. The nature of the constitutional protection afforded by s. 35(1) in this context demands that there be a link between the question of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resource. There is a clear need for guidelines that will resolve the allocational problems that arise regarding the fisheries.Ó
[para128] Does the conservation rational hold up to scrutiny when you consider the policies in place for First Nation Aboriginal as compared to Metis Aboriginal? What justification is there to exclude the Metis from the Aboriginal allocation? I can find no compelling reason to justify such an exclusion.
[para129] I was left with the impression from Mr. Scott that the current moose population is healthy. This conclusion is supported by the fact that approximately 35,000 adult moose tags are given out each year.
[para130] There continues to be ongoing monitoring and assessment of the moose population. There are models and target populations that the Ministry is attempting to achieve. These activities are intended to maintain the moose population.
[para131] Mr. Scott also expressed a secondary justification for the current regulatory scheme that is in place with respect to hunting in Ontario. This justification is based an the social and economic benefit to the people of Ontario derived through a combination of recreational hunting and non-hunting recreation. Chief Justice Lamer in his reasons in R. v. Adams (supra) addressed similar concerns at p. 23 as follows:
ÏI have some difficulty in accepting, in the circumstances of this case, that the enhancement of sports fishing per se is a compelling and substantive objective for the purposes of s. 35(1). While sports fishing is an important economic activity in some parts of the country, in this instance, there is no evidence that the sports fishing that this scheme sought to promote had a meaningful economic dimension to it. On its own, without that sort of evidence, the enhancement of sports fishing accords with neither of the purposes underlying the protection of Aboriginal rights, and cannot justify the infringement of those rights.
It is not aimed at the recognition of distinct Aboriginal cultures. Nor is it aimed at the reconciliation of Aboriginal societies with the rest of Canadian society, since sports fishing, without evidence of a meaningful economic dimension, is not Ïof such overwhelming importance to Canadian Society as a wholeÓ (Gladstone, supra at para. 74) to warrant the limitation of Aboriginal rights. Furthermore, the scheme does not meet the second leg of the test for justification, because it fails to provide the requisite priority to the Aboriginal right to fish for food, a requirement laid down by this Court in Sparrow. As we explained in Gladstone, the precise meaning of priority for Aboriginal fishing rights is in part a function of the nature of the right claimed. The right to fish for food, as opposed to the right to fish commercially, is a right which should be given first priority after conservation concerns are met.Ó
[para132] I find that there is no justifiable reason to justify the
different approaches taken towards the two Aboriginal communities (Indians
and Metis) in the Sault Ste Marie area.
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