COURT OF APPEAL FOR ONTARIO. - and - FACTUM OF THE INTERVENER, METIS NATIONAL COUNCIL. ph.: (306) fax: (306)

Transcription

1 Court File No. C34065 COURT OF APPEAL FOR ONTARIO BETWEEN: HER MAJESTY THE QUEEN Appellant - and - STEVE POWLEY and RODDY CHARLES POWLEY Respondents FACTUM OF THE INTERVENER, METIS NATIONAL COUNCIL Clem Chartier M6tis National Council Box 168 Saskatoon, Saskatchewan S7K 3K4 ph.: (306) fax: (306) Solicitor for the Invervener MCtis National Council GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors Suite 4900 Commerce Court West Toronto, Ontario M5L 153 Andrew K. Lokan ph.: (416) fax: (416) Solicitor for the Invervener MCtis National Council

2 TO: MINISTRY OF THE ATTORNEY GENERAL Constitutional Law Branch 720 Bay Street, gth Floor Toronto, Ontario MSG 2K1 Lori Sterling Peter Lemmond ph.: (416) fax: (416) Solicitors for the Appellant, Her Majesty the Queen AND TO: RUBY & EDWARDH Barristers & Solicitors 1 1 Prince Arthur Avenue Toronto, Ontario M5R 1B2 Jean Teillet ph.: (416) fax: (416) Solicitors for the Respondents AND TO: ABORIGINAL LEGAL SERVICES OF TORONTO 197 Spadina Avenue, Suite 600 Toronto, Ontario M5R 1B3 Brian Eyolfson ph.: (4 16) fax: (4 16) Solicitors for the Intervenor, Aboriginal Legal Services of Toronto, Inc. AND TO: SARLO 0:NEILL Barristers & Solicitors 1 16 Spring Street Sault Ste Marie, Ontario P6A 3A1 Robert MacRae ph.: (705) fax: (705) Solicitors for the Intervenor, the Ontario Mktis Aboriginal Association

3 Court File No. C34065 COURT OF APPEAL FOR ONTARIO BETWEEN: HER MAJESTY THE QUEEN Appellant - and - STEVE POWLEY AND RODNEY CHARLES POWLEY Respondents FACTUM OF THE INTERVENER, METIS NATIONAL COUNCIL PART I - STATEMENT OF FACTS 1. The MCtis National Council (MNC) accepts the facts set out in the Respondents: Factum. 2. The MNC was established in March, 1983 and is the contemporary national representative body of the MCtis Nation within Canada. The MNC is comprised of the following governing member organizations: the Metis Nation of Ontario, the Manitoba MCtis Federation, the MCtis Nation - Saskatchewan, the Mttis Nation of Alberta and the MCtis Provincial Council of British Columbia. These governing member organizations collectively come together through the MNC to represent the MCtis Nation in Canada. 3. Prior to 1983, the MCtis Nation had worked with non-status Indians and other Aboriginal peoples under a pan-aboriginal umbrella political organization called the Native Council of Canada (ANCC@) to advocate for the rights and title of all Aboriginal peoples living off-reserves, as well as, to lobby for desperately needed socio-economic initiatives for Aboriginal communities and initiatives throughout Canada. Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p In 1982, the NCC and other national Aboriginal representative bodies were successful in obtaining the agreement of Canada and all provinces except Quebec to include the protection of Aexisting Aboriginal and Treaty rights@ within s. 35 of the Constitution Act, In particular, the NCC was instrumental in ensuring that s. 35 included the recognition of the MCtis as one of three distinct Aboriginal peoples in Canada.

4 Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p The Constitution Act, 1982 also made a provision in s. 37 for a First Ministers: Conference be convened within a year of the Constitution Act, 1982 coming into force to deal with matters Athat directly affect the aboriginal peoples of Canada, including the identification of the rights of those peoples to be included in the Constitution of Canada.@ Schedule I1 to the Canada Act 1982, U.K., 1982, c. 11, s Prior to the 1983 s. 37 conference, it became apparent that the MCtis Nation needed to be able to once again represent itself on a national level through its own voice, a Metis voice. The pan- Aboriginal structure of the NCC did not allow for the MCtis Nation to effectively represent itself. The MNC was concerned then and continues to be concerned that when the MCtis are grouped into pan-aboriginal processes with non-status Indians and other Aboriginal peoples, their distinct Aboriginal rights and title are not addressed, recognized and protected. Therefore, in March 1983, the MCtis Nation separated from the NCC to form the MCtis National Council, its own MCtis-specific national representative body. Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p. 486; Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p The MNC represented the MCtis Nation at the 1983, 1984, 1985 and 1987 First Ministers. Conferences which included the Aboriginal peoples of Canada. As well, the MNC represented the MCtis Nation during the Charlottetown Accord constitutional sessions held in Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p. 486; Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p The MNC has intervened in this appeal because a court ruling on the Aboriginal harvesting right asserted by the MCtis Respondents will have a direct affect on the Aboriginal rights of the members of the Metis Nation within Ontario, and may well have an influential effect on the Aboriginal harvesting rights of all the remaining members of the MCtis Nation outside of Ontario. PART I1 - ISSUES ON APPEAL 9. The MNC agrees that the issues on appeal are as set out in the Respondent=s Factum. The MNC further makes the following submissions as to the manner in which these issues should be approached:

5 1. The MCtis Nation, as an Aboriginal people, has distinct Aboriginal and Treaty rights protected within s. 35 of the Constitution Act, 1982; and 2. The test to determine whether MCtis have Aboriginal harvesting rights that are protected within s. 35 must be grounded in the existence and history of the MCtis Nation, as a distinct Aboriginal people. PART I11 - ARGUMENT 10. The instant appeal presents this Court with its first opportunity to determine whether a MCtis claimant can assert an Aboriginal harvesting right protected by s. 35 of the Constitution Act, There are other cases currently before the courts dealing with the nature and scope of the Aboriginal rights of the Metis, as well as other legal issues relating to the Metis, but this is the first case at the Court of Appeal level which squarely raises s. 35. Some of these other cases include:! Maurice v. Canada, a s. 15 Charter challenge for the MCtis exclusion from the federal government=s Specific Claims Policy (currently before the Federal Court Trial Division).! Dlrmont v. Canada, a case in which the Manitoba MCtis Federation and several individual MCtis seek a declaration that various federal and provincial statutes and orders-in-council enacted during the 1870s and 1880s were unconstitutional because they had the effect of depriving the MCtis of land to which they were entitled under the Manitoba Act, 1870 (currently before the Manitoba Court of Queen=s Bench).! Morin et. al. v. Canada, a claim by a group of individual MCtis, a series of MCtis communities, the MCtis Nation - Saskatchewan and the MNC to harvesting rights, title and self-government within an area of northwestern Saskatchewan (currently before the Saskatchewan Court of Queenzs Bench). R. v. Blais, a MCtis harvesting rights case which addresses whether the M6tis are included as AIndians@ within paragraph 13 of the Natural Resources Transfer Agreement, 1930 (currently before the Manitoba Court of Appeal).! R. v. Macirice & Gardiner, a MCtis harvesting rights case in Northern Saskatchewan which addresses whether the MCtis are Indians for the purposes of s.91(24) (currently before the Saskatchewan Provincial Court). Terminology 1 1. Throughout its Factum the MNC will use the term AMCtis Nation@. The MCtis Nation refers to the historic collective of Metis people who lived and still live in what is north central North America. This territory is commonly referred to as the MCtis Nation AHomeland@ by the MCtis people. Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p. 477

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7 2. The Royal Commission on Aboriginal Peoples Final Report (RCAP Report) recognizes the historic Mktis community of Sault Ste. Marie as one of the oldest within Canada. This historic community has always been accepted as a part of the Mktis Nation within Canada. The MNC adopts the RCAP Final Report conclusion which states: Although there are differences of opinion about precisely how far the MBtis Nation extends beyond its prairie core, there is wide agreement that it includes some portions of Ontario, the Northwest Territories and British Columbia.... It is not for the Commission to say which MCtis communities in the disputed areas form part of the MCtis Nation and which do not. These are matters to be determined by the Mttis Nation and the communities themselves. What we can say is that the MCtis Nation is the most significant Mttis collectivity in Canada. It unquestionably constitutes an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982 and an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982 for the purposes of negotiations with other governments. Appeal Book, Vol. 3, Tab 39, RCAP Report, Metis Perspectives at p. 477,488, ; RCAP Report, Vol. 2, Part I, Restructuring the Relationship, Ch. 3, Governance at pp The MNC takes the position that the MCtis Nation is a Anation@ and a Apeople@ and uses the terms AMktis Nation@ and Apeopld synonymously throughout its Factum. Unlike the term AIndian@ which was ascribed by outsiders to Indigenous peoples (i.e. Ojibway, Cree, Haida etc.), the term AM&@ was historically used by the people of the Mktis Nation to describe themselves. Therefore, the term AMttis@ has more than just a legal meaning by virtue of its historic use by the MCtis Nation. In contemporary times, the term has taken on a legal meaning by virtue of its inclusion in s. 35(2) and has now become open to legal interpretation, as well as being used by other Aboriginal individuals and collectives, who did not historically identify as MCtis, for the purposes of now asserting a constitutionally protected Aboriginal right. The MNC takes no position as to whether these Aboriginal individuals and collectives who are now using the term AMetis@ may claim the core protections of s. 35. It is the position of the MNC that at the very least, s. 35 must afford protection to the MCtis Nation and its members. Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p ; Appeal Book, Vol. 1, Tab K3: Metis Nation of Ontario Statement of Prime Purpose; Appeal Book, Vol. 3, Tab 39, RCAP Report, Metis Perspectives at p Issue (1): The MCtis Nation, as an Aboriginal people, has distinct Aboriginal and Treaty rights protected within s. 35 of the Constitrrtion Act, 1982 Section 35(2): The Recognition of a People 4. The MNC agrees with the Respondents: analysis with respect to the inclusion of MCtis in s. 35(2) and adds that the process of the patriation of the Canadian Constitution was a momentous event in the on-going struggle for the assertion and recognition of the rights of the Mktis Nation

8 within Canada. It is submitted that with this inclusion the MCtis Nations existence, as an Aboriginal people, was entrenched and protected in the heart and soul of Canada - its Constitution. Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p. 486; R. v. Sparrow, ( S.C.R at Section 35(2) provides the explicit enumeration of three distinct Aboriginal Apeoplese, not ethnic minority groups or mixed ancestry descendants of various cultures. The RCAP Report concluded that distinct Aboriginal peoples should be seen as Aorganic political and cultural entities@, not merely groups of individuals with similar race-based characteristics. Therefore, the blood quantum of the individuals within these collectives is irrelevant. The MNC submitts that the existence of a pre-existing people, flowing from a distinct Aboriginal collective identity, is at the core of s. 35's protection. The fact that Mttis people are of mixed racial heritage does not make them less Aboriginal than Indians or Inuit, or less worthy of the protection afforded by s. 35. RCAP Report, Vol. 2, Part I, Restructuring the Relationship, Ch. 3, Governance at pp ; Respondents Factrrm at paras Although there is no universally accepted definition of a Apeople@, domestic and international jurisprudence has generally taken a very broad view of the term. Without being exhaustive or essential, objective elements can include: common language, history, culture, race or ethnicity, way of life and territory. In addition, a subjective element is necessary, whereby a Apeoplee identifies itself as such. Reference re Secession of Quebec, S.C.R. 217 at p ; Catherine Bell, AM6tis Constitutional Rights in Section 35(1)@36(1) A.L.R. 180 at pp ; Ronald Lambert, ADoes a Canadian People Exist@ submitted at the invitation of M. Andre Joli-Coeur, amicus curiae before the Supreme Court of Canada, concerning Quebec* right to unilaterally secede from Canada, S.C.C. File No (3 March 1998) (QL); See also RCAP Report, Vol. 2, Part I, Restructrrring the Relationship at p The history of the MCtis Nation demonstrates that many of the important communal indicators for a people, as well as a collective consciousness, were present within its communities before effective control was asserted by the Crown. Therefore, the protection afforded by s. 35 for the Treaty and Aboriginal rights of the MCtis Nation, as an Aboriginal people, rests on the history and relationship between the MCtis Nation and the Crown. Respondents Factrrm at paras The Birth and History of the MCtis Nation

9 8. The Mktis, as a people, evolved out of the initial relations of European men and Indian women born on the lands of what is now Canada, as well as part of the northern United States. While the initial offspring of these relations were individuals who possessed mixed European and Indian ancestry, the continued relations throughout the mid 17' century between European men and Indian women through intermarriages d la faqon du pays made way for the genesis of a distinct people, the Mttis people. Respondents Factiim at para 54-55; Appeal Book, Vol. 3, Tab 39, RCAP Report, MCtis Perspectives at p , This genesis of the Mttis people was more than just a mixing or adaptation of two divergent cultures. It was a continual evolution that culminated in a distinct Aboriginal society through the development of a unique language (Michif), music, dance, culture, community structures, dress and way of life, etc.. The MNC submits that it is highly significant that individuals and communities no longer saw themselves as Indian or European - they identified as a distinctive collective. Louis Riel, one of the greatest leaders of the Mktis, aptly described this concept in his 1885 statement on where the Mttis acquired their name: The paternal ancestors of the MCtis were the former employees of the Hudson Bay and Northwest Fur Companies, and their maternal ancestors were Indian women of the various tribes. The French word MCtis is derived from the Latin participle mixtus, which means mixed in French melee; it expresses well the idea that is sought to be conveyed. However appropriate the corresponding English expression Half-breed might have been for the first generation of the mixture of blood, now that European blood and Indian blood are mixed in every degree, it is no longer general enough. The French word MCtis expresses the idea of this mixture in the most satisfactory manner possible, and thus becomes a proper race name. Why should we care to what degree exactly of mixture we possess European blood and Indian blood? If we feel ever so little gratitude and filial love toward one or the other, do they not constrain us to say: We are MCtis! Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p. 477, ; Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p ; Appeal Book, Vol. 1, Tab K3: Metis Nation of Ontario Statement of Prime Purpose 10. The Mktis have always been recognized as distinct by Aoutsidersg as well. The Cree referred to them as AOtepayemsuak@, the Aindependent ones@. Europeans saw the Mttis as distinct Aboriginal people. The Hudson Bay Company identified the Ahalf-breed traders@ in their records. The Crown also recognized the Mttis as distinct and historically dealt with them as Aboriginal people. Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p ; Appeal Book, Vol. 4, Tab 56: Ray Report at pp ; Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p The Mttis self-realization of their existence as a people is confirmed throughout history. The crystallization of the Metis collective consciousness can be witnessed in the historic record and in

10 contemporary times throughout the MCtis Nation=s Homeland. They acted as a collective entity at various times to protect their lands, their rights, their resources, their way of life and their distinct communities. The fact that the MCtis people were willing to stand up and fight for that collective existence endures as one of the features that defines the Canadian federation.! In 1816 the MCtis in the Red River (Manitoba) were successful in keeping back farmers moving into the area. The MCtis collective, led by Cuthbert Grant, knew that the European settlers agricultural way of life would have been a direct threat to the distinct MCtis hunter- gatherer society that existed. The MCtis were successful in defending their distinct existence and the European settlers turned back.! In 1849 the Mttis in the Sault Ste. Marie area (Ontario), along with their Indian relations, took over a mining camp at Mica Bay. The Aboriginal people demanded that the Crown negotiate a treaty with them that would respect and protect their Aboriginal rights and title in the area.! In 1870 the MCtis in Red River (Manitoba) ensured that the vision of Canada from coast to coast would go no further in its western expansion without first dealing with the people who were already there and their Aboriginal rights and title.! In 1885 the Mttis at Batoche (Saskatchewan) once again asserted their rights by fighting against the continuing erosion of their Aboriginal lands and way of life. The MCtis were not successful in the Battle of Batoche and some dispersed throughout their Homeland, attempting to maintain their existence. Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p ; Respondents Factrrm at para The Appellant=s approach to this case perpetuates a historical inaccuracy that after all of these defining moments the Mttis Nation either Adied@ as a people, dispersed further west, assimilated into mainstream society or became AIndians@. Nothing could be further from the truth. From the late 1800s to the early 1900s, the Metis Nation, its communities and its people continued to exist within the Canadian federation but were ignored, marginalised and prosecuted. Based on its extensive research the RCAP Report concluded: Some Canadians think that the MCtis Nation=s history ended on the Batoche battlefield or the Regina gallows. The bitterness of those experiences did cause the MCtis to avoid the spotlight for many years, but they continued to practise and preserve their culture and to do everything that was possible to pass it on to future generations. Appellants Factrrm, Historical Developments, at paras ; RCAP Report, Vol. 4, Metis Perspectives at p It is recognized that the Metis Nation, its communities and its people were badly damaged across the Homeland during this period. This is not a proud period in the relations between the Crown and Aboriginal peoples. The prosecution, imprisonment and/or hanging of the Metis Nationzs leaders as traitors to the Canadian state dampened the people-s public resilience and pride. MCtis

11 communities in valuable areas for European settlement were pushed out into the hinterlands of their own Homeland, often being dubbed the >road allowance people. These communities and families often situated themselves on the fringes of settled non-aboriginal townslcities and reserves, attempting to sustain their existence by keeping to themselves and living off the land. MCtis individuals became the poorest of the poor, being rejected from the now dominant European settler townslcities and being denied access to their Indian relations, who were now under the full control of the federal government=s Indian Act and Indian agents regime. RCAP Report, Vol. 1, Ch. 3 at pp ; Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p. 476; RCAP Report, Vol. 4, Ch. 5, MCtis Perspectives at p. 227; Respondents Factum at para The testimony of Olaf Bjornaa poignantly highlights the common dilemma MCtis people across their Homeland faced during this period. He and his sister could not attend school - the reserve school could not take them because they were not AZndian@, yet they were also rejected from the towws school because they were too Ahdim@. The Canadian historic record documents the wide spread prejudice and racism towards Aboriginal people during this period. In particular, the rights, claims and existence of the MCtis were ignored and undermined by the governments of the day. These realities created a period where the Mttis did become the >forgotten people, but did not cease their existence. Trial Transcripts, Vol. 5, Testimony of 0. Bjornaa at pp ; Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p. 476; Respondents Factum at para Even in the face of this adversity, some Metis continued to gather within their communities throughout the Homeland. In 1909, a number of MCtis patriots began to meet in St. Vital, Manitoba to write the MCtis record on the events which took place in 1870 and In 1935 this record, L=Histoire de la Nation M6tisse duns 1-auest Canadien was published. These on-going gatherings in St. Vital culminated in the formation of the Union nationale Mitisse de Saint-Joseph being formed in the early 1900s. A.-H. de Tremaudan, Hold High Your Head (History of the Me'tis Nation in Western Canada), translated by Elizabeth Maguet (Winnipeg: Pemmican Publications, 1982), at p. xii; Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p In the 1930s, more visible political movements emerged to once again assert the rights and existence of the Metis Nation. In 1932, the MCtis Association of Alberta (now the MCtis Nation of Alberta) was formed. The Saskatchewan Metis Society (now the Metis Nation - Saskatchewan) was formed in In 1965, the Lake Nipigon Metis Association was formed by Metis in northwestern

12 Ontario. These political movements led to a revitalization of the MCtis Nation and its communities throughout the Homeland. These movements resulted in the inclusion of the MCtis as a distinct Aboriginal people in s. 35, the proposed MCtis Nation Accord as a part of the failed Charlottetown Accord, and a renewed vibrancy and pride within MCtis communities and individuals. Appeal Book, Vol. 3, Tab 39: RCAP Report, Miitis Perspectives at p Section 35: Protection and Reconciliation 27. The MCtis Nation=s self-realization, collective identity, social and cultural commonalities and recognition from outsiders all demonstrate an existence prior to Aeffective control@ being asserted by the Crown, and a continuing existence as an Aboriginal people within the Canadian federation. Section 35 provides all three Aboriginal peoples with recognition and protection of their rights, as well as a framework to achieve reconciliation within modem day Canada. Therefore, the MNC agrees with the Respondents= submission on the dual purpose of s. 35; namely, (1) that the Aboriginal rights of the MCtis Nation are recognized and protected on the basis of the MCtis pre-existence within Canada and fundamental fairness; and (2) these existing rights must be reconciled with Crown sovereignty. Respondent* Factirm at para 20-23,26-30 Issue (2): The test to determine whether MCtis have Aboriginal harvesting rights that are protected within s. 35 must be grounded in the existence and history of the MCtis Nation, as a distinct Aboriginal people 2. The MNC adopts the Respondents: submissions with respect to the test for the determination of whether MCtis have Aboriginal harvesting rights protected within s. 35. The MNC also supports the Respondents. submission that the Appe1lant.s approach to the characterization and determination of MCtis rights is fundamentally flawed, because it bases the analysis of MCtis rights on an Indian rights paradigm. MCtis rights must emanate from the pre-existence of the MCtis Nation, as a distinct Aboriginal people, not the AIndiannesss of those rights. Based on this position the MNC submits: (1) The right to determine who is MCtis or a member of the MCtis Nation rests with the people themselves; (2) A review of the continuity of an Aboriginal right asserted by a MCtis claimant must be flexible and responsive to the unique historic circumstances facing the MCtis society claiming the right; and

13 (3) The Appe1lant.s justification arguments must be assessed in light of the history of the Appellant=s historic and current dealings with the MCtis. (a) The Right to Determine Who Is MCtis or a Member of the MCtis Nation Rests with the People Themselves 29. The MNC submits that the decision of Vaillancourt J. was correct in finding that the Powleys can claim s. 35 protection for the Aboriginal right to harvest they were exercising at Sault Ste. Marie. The conclusion was based on the evidence that the Powleys: (4) Self-identified as Mktis; (5) established Aboriginal ancestry by virtue of being descendants of the historic Mktis society at Sault Ste. Marie; and (6) were accepted by the contemporary MCtis society at Sault Ste. Marie. 3. It is respectfully submitted that the question of whether a Mktis claimant, who is not genealogically connected to the historic Mktis society, can exercise that societys protected Aboriginal right to harvest is not before this Court and that question is best left for another case where that specific fact situation arises. The MNC is very aware of how important that question is, but submits it cannot be dealt with without a specific factual context to address that type of claim. R. v. Van der Peer, 11996) 2 S.C.R. 507 at p. 558 (para 67); Respondents Factum at paras The MNC further submits that the test of who can exercise the MCtis societys protected s. 35 Aboriginal harvesting right does not and should not define who the Mktis Nation and its members are. Only the Mktis people themselves possess the right to determine who the individual members of their society are. This is one of the fundamental rights that inheres within a people. This right is an internal right, to be exercised based on sound and fair principles, natural justice and the customs, traditions, and practises of the Aboriginal people themselves. 5. The right to self-determination is a human right according to international human rights instruments. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. CAOR Supp. (No. 16) at 52, U.N. Doc. A16316 (1966), 999 U.N.T.S. 171, art. 1, entered into force Mar. 23, 1976.

14 International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A16316 (1966), 993 U.N.T.S. 3, art. 1, entered into force Jan. 3, Human nghts obllgarlons unaer 11llClIlidLlUllal law 3b1 Vu rv...- llllvllll -A----r _, Canadian courts as to the objectives and scope of human rights obligations under the Constitution of Canada. This is particularly the case where the human rights obligations pertain to those rights which Canada and other members of the international community have made a commitment to implement. R. v. Keegstra, S.C.R. 697 at 754 and The principle that Aboriginal peoples themselves have the right to determine their membership has also been recognized in Canada. Recommendation (MCtis Identity) in the RCAP Report states: Every person who (i) identities himself or herself as MCtis and (ii) is accepted as such by the nation of MCtis people with which that person wishes to be associated, on the basis the criteria and procedures determined by that nation be recognized as a member of that nation for the purposes of a nation - to - nation negotiations and as MCtis for that purpose. Appeal Book, Vol. 3, Tab 39: RCAP Report, MCtis Perspectives at p In R. v. Alphonse, the British Columbia Court of Appeal recognized that membership within an Aboriginal community must be driven by the Aboriginal peoples themselves: But there remain many non-status Indians and MCtis who are not Indians for the purposes of the Indian Act and to whom s. 88 does not apply. Yet those very people may well belong to a community of people which holds aboriginal title or aboriginal rights. It must be remembered that membership of such a community must be determined in accordance with the customs, traditions and practices of the aboriginal people in question, and not in accordance with the Indian Act or with non-indian common law principles. R. v. Alphonse, 11993) 4 C.N.L.R. 19 at p. 61.

15 10. The principle of internal identification of membership by Aboriginal peoples is supported by governments through Indian and Inuit self-government agreements and arrangements. example, the Gwich=in Land Claim Settlement and Nisga=a Treaty along with other Aboriginal self- government agreements provide for extensive membership processes and codes for the determination of membership. As well, Indian Bands regulated under the Indian Act are allowed to develop their own membership codes. Gwichin Land Claim Settlement Act, R.S.C. 1992, c. 53, ch. 3; Nisgaa Final Agreement Act, R.S.C. 2000, c. 7, ch 20; Indian Act, R.S.C. 1985, c. 1-5, s. 10; Appellants Factum para It is respecthlly submitted that the Mttis, as a people, must be provided with the same opportunity afforded to Indian and Inuit peoples to exercise their inherent right to determine membership. A court-imposed definition of the MCtis people would violate this right, by virtue of denying the MCtis Nation its inherent right to develop their own membership criteria and procedures based on sound and fair principles, natural justice and their customs, traditions, and practises. For The MCtis Nation Has Never Negotiated a Definition of the MCtis with Governments 12. The Appellant states that Ontario has participated in Adiscussions@ relating to the definition of MCtis. While Ontario did participate in the Mttis Nation Accord negotiations, the Appellant is incorrect in stating that Ontario, or any other government, participated in determining a definition of MCtis. The definition was presented by the MNC after it was internally arrived at, by the Mttis Nation. The definition was never the subject of general debate or consideration by the federal government or provincial governments. In short, the definition of AMttis@ was not determined or negotiated by outsiders. As well, the Appellant is wrong in stating the Mttis Nation Accord definition Adefined Mttis exclusively in terms of Red River descendants.@ The proposed definition in the Mttis Nation Accord reads: For the purposes of the MCtis Nation and this Accord, 1. AMCtis@ means an Aboriginal person who self-identifies as Metis, who is distinct from Indian and Inuit and is a descendant of those MCtis who received or were entitled to receive land grants and/or scrip under the provisions of the Manitoba Act, 1870, or the Dominion Lands Act, as enacted from time to time. 2. AMCtis Nation@ means the community of MCtis persons in subsection a) and persons of Aboriginal descent who are accepted by that community. Appeal Book, Vol. 3, Tab 39: RCAP Report, Metis Perspectives at p. 632

16 (b) A Review of the Continuity of an Aboriginal Right Asserted by a MCtis Claimant must Be Flexible and Responsive to the Unique Historic Circumstances Facing the MCtis Society Claiming the Right 13. In R. v. Adams, the Supreme Court of Canada held that there should be some continuity between the practises, customs and traditions prior to effective control being asserted, and those for which constitutional protection is claimed today. The Court had previously cautioned that the concept of continuity had to be applied with flexibility, and did not require evidence of an unbroken chain between pre-effective control and contemporary practises. As noted in R. v. Sparrow, Afor many years, the rights of the Indians and their aboriginal lands - certainly as legal rights - were virtually ignored@. R. v. Adams, ( S.C.R. 101 at 129 (para 47); R. v. Van der Peel, ( S.C.R. 507 at p. 556 (para 63); R. v. Sparrow, ( S.C.R at It is submitted that this flexibility with the continuity test must be similarly applied to the MCtis. Some continuity should be demonstrated between pre-effective control and contemporary rights the claimant is exercising; however, where gaps in the evidence of continuity can be related directly or indirectly to governmental interference, in disregard of both the lawful rights of MCtis people and the govenunent:~ own fiduciary obligations, the continuity test must be flexible and responsive. To demand too strict a level of proof of continuity (as urged by the Appellant) is inconsistent with both Aboriginal rights jurisprudence generally, and the role that the government has itself played in contributing to the marginalization of the MCtis. 15. Aboriginal harvesting rights of the Metis protected within s. 35 are to be reconciled with Crown sovereignty on fair and just terms. Therefore, the continuity test for a Metis right must have appropriate regard to the historical pattern of disregard of MCtis rights in Ontario, and the systemic governmental policies which, in design or effect, have long undermined distinctive MCtis rights, culture and traditions. (c) The Appellant=s Justification Arguments must Be Assessed in Light of the History of the Appellants Historic and Current Dealings with the MCtis 43. In this appeal there is no evidence that the Appellant has done anything to allow the MCtis people to exercise their constitutionally protected and inherent rights as a people. On the contrary,

17 the Appellant denies that MCtis rights exist within the province of Ontario and rehses to deal with the MCtis as a people. The Appellant rekses to recognize or support the efforts of the MCtis Nation of Ontario through their Registry process; yet, uses the excuse that Athey do not know who the MCtis are@ to avoid dealing with the MCtis. The Appellant argues that uncertainty and diff~culty in determining who is AMktis@ is a justifiable rationale for inaction, while they support principled processes for determining membership with Indian peoples (e.g., Algonquin Claim). The Appellant suggests that Aanimosities@ between political organizations in Ontario justifj its inaction. It is respectfully submitted that the Appellant=s use of its own inaction as an excuse to deny the constitutionally entrenched rights of the MCtis cannot be sustained. Appeal Book, Vol. 2, Tab 35, Letter from Chris Hodgson to Ron and Mary OConnor; Appellants Factirm at para 170; Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p. 119; Appellants Factum at para The Appellant argues that because it is Aexceedingly difficult@ to identify the MCtis in Ontario the Crown does not need to address the issue. The MNC submits that such an excuse is unacceptable when constitutionally protected rights are at stake. The Supreme Court of Canada has held that governments cannot use administrative inconvenience as a valid reason to deny a constitutionally protected right. In CorbiBre v. Canada, the Supreme Court held that the government=s lack of concrete and tangible evidence on why it would be difficult to allow off-reserve Band members the right to vote in Band elections was fatal to its justification submissions. In concurring with the majoritys holding, McLachlin J. (as she then was) wrote the following: But they present no evidence of efforts deployed or schemes considered and costed, and no argument or authority in support of the conclusion that costs and administrative convenience could justify a complete denial of a constitutional right. Under these circumstances, we must conclude that the violation has not been shown to be demonstrably justified. Appellants Factrrm at para 170; Singh v. Canada, S.C.R. 177 at pp (para 70); Corbiere v. Canada, S.C.R. 203 at pp (para 21) per McLachlin and Bastarche JJ. (dissenting in part, but not on these grounds) The MCtis in Ontario Have Established a Process for Registration of MCtis 45. The MNO has implemented a Provisional Harvesting Policy which identifies conservation as a main objective (s. 3.1). As well, the policy regulates the annual harvest taken through traditional ACaptains of the Hunt@ throughout the province (s. 3.5). The MNO Provisional Harvesting Policy only authorizes the distribution of Harvester Certificates to MCtis hunting in their traditional territory (s. 2.1) and who agree to abide by the Policy. Trirrl Transcripts, Vol. 1, Testimony of Tony Belcourt at p , ; Appeal Book, Vol. 4, Tab 48: MNO Provisional Harvesting Policy at pp

18 46. The evidence demonstrates that the MCtis have established a registration process based on sound and fair principles. The testimony of Tony Belcourt, President of the MCtis Nation of Ontario (MNO) highlighted that the MNO Registry included an application process managed and overseen by the MCtis themselves. Trial Transcripts, Vol. 1, Testimony of Tony Belcourt at p ; Appeal Book, Vol. 1, Tab K4: MCtis Nation of Ontario Application for Membership at p ; Appeal Book, Vol. 1, Tab K5: MBtis Nation of Ontario Membership Cards 47. The MNC respectfully submits that this will be the process through which members of the Metis Nation will be defined, and urges this Court not to go further than is necessary for this appeal in defining who is MCtis. PART IV - ORDER REQUESTED 48. The MNC supports the Respondent% requests that this appeal be dismissed and that the Court deny the Appe1lant.s request for a one-year suspension to develop, consult and implement a new harvesting regime which recognizes a MCtis right to harvest. All of which is respectfully submitted this llth day of December, Clem Chartier Counsel for the Intervener MCtis National Council

19 SCHEDULE AA* TABLE OF AUTHORITIES Reference re Secession of Quebec, [I S.C.R. 217 Catherine Bell, AMCtis Constitutional Rights in Section 35(1)@ 36(1) A.L.R. 180 Ronald Lambert, ADoes a Canadian People Exist@ submitted at the invitation of M. Andre Joli-Coeur, amicus curiae before the Supreme Court of Canada, concerning Quebess right to unilaterally secede from Canada, S.C.C. File No (3 March 1998) (QL) A.-H. de Tremaudan, Hold High Your Head (History of the Mktis Nation in Western Canada), translated by Elizabeth Maguet (Winnipeg: Pemmican Publications, 1982) International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 2 1 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. N63 16 (1966), 999 U.N.T.S. 17 1, art. 1, entered into force Mar. 23, International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. N6316 (1966), 993 U.N.T.S. 3, art. 1, entered into force Jan. 3, Declaration on the Granting of Independence to Colonial Countries and People, U.N.G.A. Resolution (XV), 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. Al4684, adopted on December 14, 1960 United Nations Draft Declaration of the Rights of Indigenous Peoples, (1994) 1 C.N.L.R. 40 at Part VII, arts. 3 1, 32, 34 R. v. Alphonse, [I C.N.L.R. 19 R. v. Adams, [1996] 3 S.C.R. 101 R. v. Van der Peet, [I S.C.R. 507 R. v. Sparrow, [I S.C.R Singh v. Canada, [I S.C.R. 177 Corbiere v. Canada, [I S.C.R. 203

20 SCHEDULE TABLE OF STATUTORY AUTHORITIES Schedule I1 to the Canada Act 1982, U.K., 1982, c. 11, s. 37 "37. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force. (2) The conference convened under subsection (1) shall have included in its Participation agenda an item respecting constitutional matters that directly affect the aboriginal of aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item. (3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in discussions on any item on the agenda of the conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories." 37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date. (2) Each conference convened under subsection (1) shall have included in its agenda matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters. (3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participating the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories. (4) Nothing in this section shall be construed as to derogate from subsection 35(1). Indian Act, R.S.C. 1985, c. 1-5, s. 10 Section 10 (1) (Band Control of Band Membership) A band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band's control of its own membership.

21 Section 10 (2) (Membership Rules and Review of Decisions on Membership) A band may, pursuant to the consent of a majority of the electors of the band, (a) after it has given appropriate notice of its intention to do so, establish membership rules for itself; and (b) provide for a mechanism for reviewing decisions on membership. Section 10 (3) (Consent of majority of all members may be required) Where the council of a band makes a by-law under paragraph 81(1)@.4) bringing this subsection into effect in respect of the band, the consents required under subsections (1) and (2) shall be given by a majority of the members of the band who are of the full age of eighteen years. Section 10 (4) (No loss of previous membership) Membership rules established by a band under this section may not deprive any person who had the right to have his name entered in the Band List for that band, immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force. Section 10 (5) (Previous entitlement to membership) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the Band List under paragraph 1 l(l)(c) immediately before the band assumed control of the Band List if that person does not subsequently cease to be entitled to have his name entered in the Band List. Section 10 (6) (Notice to Minister of Band control of membership) Where the conditions set out in subsection (1) have been met with respect to a band, the council of the band shall forthwith give notice to the Minister in writing that the band is assuming control of its own membership and shall provide the Minister with a copy of the membership rules for the band.

22 Section 10 (7) (Transfer of control of membership to Band) On receipt of a notice from the council of a band under subsection (6), the Minister shall, if the conditions set out in subsection (1) have been complied with, forthwith (a) give notice to the band that it has control of its own membership; and (b) direct the Registrar to provide the band with a copy of the Band List maintained in the Department. Secton 10 (8) (Compliance with Band Membership Rules) Where a band assumes control of its membership under this section, the membership rules established by the band shall have effect from the day on which notice is given to the Minister under subsection (6), and any additions to or deletions from the Band List of the band by the Registrar on or after that day are of no effect unless they are in accordance with the membership rules established by the band. Section 10 fkrther Departmental Responsibility for Band Membership) A band shall maintain its own Band List from the date on which a copy of the Band List is received by the band under paragraph (7)(b), and, subject to section 13.2, the Department shall have no hrther responsibility with respect to that Band List from that date. Section 10 (10) (Additions and Deletions of Names) A band may at any time add to or delete from a Band List maintained by it the name of any person who, in accordance with the membership rules of the band, is entitled or not entitled, as the case may be, to have his name included in that list. Section 10 (1 1) (Information to be Entered) A Band List maintained by a band shall indicate the date on which each name was added thereto or deleted therefrom.

23 Gwichsn Land Claim Settlement Act, R.S.C. 1992, c. 53, ch. 3 [G An Act to approve, give effect to and declare valid the Agreement between Her Majesty the Queen in right of Canada and the Gwich'in, as represented by the Gwich'in Tribal Council, and to amend an Act in consequence thereof Preamble [Assented to 17th December, WHEREAS the Gwich'in, from time immemorial, have traditionally used and occupied lands in the Yukon Territory and the Northwest Territories; WHEREAS the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada; WHEREAS Her Majesty the Queen in right of Canada and the Gwich'in, as represented by the Gwich'in Tribal Council, have negotiated in order to achieve certainty and clarity of rights with respect to ownership and use of land and resources; WHEREAS Her Majesty the Queen in right of Canada and the Gwich'in, as represented by the Gwich'in Tribal Council, on April 22, 1992, entered into a comprehensive land claims agreement that, in exchange for the release by the Gwich'in of certain rights and claims as set out in the Agreement, defines certain rights that the Gwich'in shall have, and confirms the treaty rights of the Gwich'in that are unaffected by that release; WHEREAS the Agreement further provides that the Agreement will be a land claims agreement referred to in section 35 of the Constitution Act, 1982 and that approval by Parliament is a condition precedent to the validity of the Agreement; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title SHORT TITLE 1. This Act may be cited as the Gwich'in Land Claim Settlement Act. Definition of "Agreement" INTERPRETATION 2. In this Act, "Agreement" means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich'in, as represented by the Gwich'in Tribal Council, signed on April 22, 1992, tabled in the House of Commons for the Minister of Indian Affairs and Northern

24 Development on November 16, 1992, and includes amendments made from time to time pursuant to the Agreement. Binding on Her Majesty HER MAJESTY 3. This Act is binding on Her Majesty in right of Canada or a province.

25 AGREEMENT Agreement 4. (1) The Agreement is hereby approved, given effect and declared valid. Idem (2) For greater certainty, where the Agreement confers on any person or body a right, privilege, benefit or power, requires any person or body to perform a duty or subjects any person or body to a liability, that person or body may exercise the right, privilege, benefit or power, shall perform the duty or is subject to the liability to the extent provided for by the Agreement. Idem (3) For greater certainty, title to lands vests in the Gwich'in Tribal Council as set out in the Agreement. Renewable Resources Board 5. For the purposes of carrying out its objectives, the Renewable Resources Board established by the Agreement has the capacity, rights, powers and privileges of a natural person. Orders and regulations 6. The Governor in Council may make such orders and regulations as are necessary for the purpose of carrying out the Agreement or for giving effect to any of the provisions thereof. Publication of Agreement and amendments 7. The Minister of Indian Affairs and Northern Development shall cause a certified copy of the Agreement and any amendments thereto to be deposited in (a) the library of the Department of Indian Affairs and Northern Development that is situated in the National Capital Region; (b) the regional offices of the Department of Indian Affairs and Northern Development that are situated in the Yukon Territory and the Northwest Territories; (c) the legislative libraries of the Government of the Yukon Territory and the Government of the Northwest Territories; and (d) such other places as the Minister deems necessary. Inconsistency or conflict OTHER LAWS