#9149 - Metis Rights - Aboriginal Law

Metis Rights

Origins of Rights (Sparrow)

• basis for s. 35(1) rights do not come from the constitution; they existed prior to CA 1982; existed pre contact

• rights exist because they come from aboriginal law, governance, practices and traditions

• rights were independent and existing and did not depend on the recognition of them by Canadian authorities (Calder, Cote, Adams, VDP)

• they exist in Canadian law not because of governmental recognition but because they were not extinguished or conquered

• part of common law and constitutional law

• rights were affirmed through the original treaty process

Scope, Nature of Rights (Sparrow)

• Metis people are distinct, re culture, history, language- their inclusion in s. 35 is not traceable to pre-contact occupation; thus is distinct from FN, Inuit righhtas (Powley)

• aboriginal rights cover a spectrum of rights from practices, traditions and customs, integral to the distinctive cultures of aboriginal peoples to activities that must take place on the land which confer to the land itself (title), or rights that fall on a spectrum with respect to their degree of connection to the land (VDP)

• are sui generis

• scope and content not determined by govt reg

• govt can regulate s. 35 rights but regulation must meet s. 35 standards for infringement

• not subject to s. 1 of the CH, but not absolute, must be read w federal powers

• can be freestanding or site specific

• “existing” means unextinguished: constitutionalization does not revive extinguished rights

Interpretative Approach to s. 35 (Sparrow)

• rights are not frozen: must be interpreted as an evolving, adapting to new contexts

• the court must take a purposive, liberal approach to ensure rights claims are not static: must look at the analysis in light of the underlying reasons behind se. 35(1) rights protections: recognition of prior occupancy and reconciliation bw aboriginal peoples living in distinctive societies, with their own practices, traditions and cultures, and the sovereignty of the crown (VDP)

• hence there is a generous and liberal interpretation in favour of aboriginal peoples

• this stems from the fiduciary relationship between aboriginal people and the crown

• takes into account the aboriginal perspective to determine the meaning of the right at stake

• CRITIQUES of espoused commitment to incorporating FN rights:

  • This is limited as the perspective must be framed in terms that are cognizable to the Canadian legal and constitutional structure which such is the decision in Marshall and Bernard, are not serving reconciliation very well

  • There is a question on how it is to be cognizable to the Canadian system of common law, especially if common law can change and be fluid and dynamic, and is supposed to include ‘customary’ law

  • True reconciliation is supposed to align the two systems together, so fitting one into the other is not reconciling

  • Macklem and Ash: cts relying on an contingent as opposed to inherent approach to rights, e.g. in Sparrow

Test

1. Requirements of Establishing the Right (onus: Metis) (Powley, modifying VDP)

-test to identify whether an applicant has established a right protected by s. 35(1) (Sparrow):

-i. unextinguished (see below)

-ii. consistently exercised

-iii. the activity must be an element of a practice, custom or tradition integral to the

distinctive culture of the aboriginal group claiming the right

-VDP: -Lamer:

-M included in s. 35 but distinct origins suggests their rights under this section may be different- unclear if VDP test will apply- needs to be addressed by M claimant, on case by case basis

-LHD:

-pre-contact test cannot serve as limiting factor to access rights, contradictory to M history and as M are included in s. 35- thus case by case basis cannot apply

-Powley: VDP test applies but is modified to reflect distinct M identity- shift from pre- contact to time period prior to Euro control

-10 guidelines for defining “integral to distinctive culture:” (Powley, modifying VDP)

1. perspective of FN must be given = weight to CL:

-in order to reconcile sovereignty w prior occupation

-lt: FN perspective or law must be cognizable

2. precise nature of the right must be identified:

-significance of the practice must be delineated (VDP)

-3 factors: (VDP)

1. nature of the action, as described by the claimant

2. nature of the legislation or governmental action alleged to infringe the right, either via purpose or in effect

3. the ancestral tradition or practice relied upon to establish the right

-link FN rights, are context and site specific

-the activity in question must be an expression of the right claimed (Mitchell)

-the rights claim must be specific and not general, must identify the exact nature of the activity (Pamejawon)

-do not characterize the right as a right to a particular resource bc that would make the right look like a CL property right, while FN rights are sui generis (S/G)

-example: right to hunt food in specific geo area, not moose specifically (Powley)

3. identification in the historic rights bearing community:

-must evidence 3 facts:

1. demographic evidence

2. proof of shared customs/traditions

3. collective identity

-must be some degree of continuity (not random), but recognize that M have often lacked ‘political’ structures

1. identification in the contemporary rights bearing community:

-there has to be some proof of continuity, but it doesn’t have to be absolute, as the Metis might have hidden their identity

-although community is described as “invisible” doesn’t mean it ceased to exist

5. verification of the claimants membership in the relevant contemporary community:

-although this may be more difficult in Metis context, doesn’t mean they don’t enjoy

rights stemming from constitutional status

-only those with ancestral connection can receive rights

-problematic: suggests M cannot be of recent genesis; impedes modern growth of communities via intermarriage

-assessed on an individual basis, referencing that which is objectively verifiable:

i. self identify -not of recent vintage

ii. ancestral connection to a historic Métis community

iii. confirmed acceptance by a historic Métis community

-examples:

-Powley: all three requirements met

-Labrador Metis Nation: held historic and contemporary continuity gave rise to duty to consult

-Castonguay: M claims in NB rejected bc held ancestral connections are too distant and no contemp continuity

-Laviolette: M claim in SA accepted, applied Powley

-Willison: claim in BC rejected, no historic community, Powley cannot be extended to apply to geo wide, loosely affiliated group who lacked collective id

-Hirsekorn: no community connection

2. practice must be of central, defining significance (VDP)

• “but for” the cultural would not be the same

• the right must be more than an aspect of the culture, must be essential to the culture

• must identify distinctive features

• significance doesn’t define the nature of the claim but helps identify if its integral to that culture

• cannot be occasional to that society

• cannot be true of every culture

• met in Powley: hunting integral to distinctive culture

  1. practice, custom or tradition which constitutes right must have the continuity with practices prior to Euro control

• this time frame used bc:

  • Metis people are distinct bc of their Euro ancestry> have unique culture, history that stems from mixed race origins

  • Their inclusion in s. 35 doesn’t flow from their pre-contact occupation

• continuity:

  • does not have to be an unbroken chain with the past

  • can be interpreted flexibly to permit the evolution of the right over time, bc of historic injustices

  • bc of evidentiary difficulties, can rely on post contact evidence

• analysis:

  • pre-control focus still privileges Cr sovereignty

  • lts recognition of commercial rights

1. recognition of evidentiary difficulties (VDP)

-burden is on claimant

-oral histories admissible (Delga) but evidence must be comprehensible to CL

2. rights established for specific group cannot be generalized to all groups: (VDP)

-existence of the right will be determined in specific context of the claimant

3. practice must be of independent significance, not incidental to another, larger significant right (VDP)

-the right must be able to stand on its own

4. needs to be distinctive but need not be distinct (VDP)

- must be a distinguishing characteristic making the culture what it was

- does not have to be distinct and unique to that culture

-precisely those distinctive features of a society which need to be acknowledged and reconciled with the sovereignty of the crown

10. relationship bw land and FN must be taken into account, in addition to

distinctiveness of culture: (VDP)

-title is a subset of rights

-a claim for rights and title can both succeed

-site specificity of rights- cannot be applied abstractly (Adams, Cote)

1. Extinguishment (Cr onus) (Sparrow)

-Sparrow test applies equally to FN and Metis claims (Powley)

-prior to 1982: extinguishment can occur with clear and plain intent (Sparrow), can be inferred if consistent, need not be explicit (Gladstone, S/G)

• extinguishment could potentially occur via:

1. surrender: treaty with the crown

2. legislation

-s. 91(24): right to legislate and extinguish title

- regulatory regime is not a high enough standard to meet extinguishment

-e.g.: NRTA in Badger extinguished the treaty protection of the right to hunt commercially while allowing and expanding the right to hunt for food

3. constitutional amendment: never occurred

4. sovereign incompatibility (Mitchell)

   • if extinguished prior to 1982, then rights are not...