IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) APPLICATION FOR LEAVE TO APPEAL (Supreme Court Act section 40 R.S., c.5-19, s.

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) File No. BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - HER MAJESTY THE QUEEN, - and - MÉTIS NATIONAL COUNCIL, Applicant (Accused), Respondent (Informant), (Intervenor in the Court of Appeal). APPLICATION FOR LEAVE TO APPEAL (Supreme Court Act section 40 R.S., c.5-19, s.1) Counsel for the Applicant: Agent for the Counsel for the Applicant: Lionel Chartrand, Ed Van Bemmel Aboriginal Centre Law Office Gowling Lafleur Henderson LLP 409-181 Higgins Avenue Barristers & Solicitors Winnipeg, Manitoba Ottawa, Ontario R3B 3G1 K1P 1C3 Telephone: (204) 985-5230 Telephone: (613) 233-1781 Facsimile: (204) 985-5237 Facsimile: (613) 563-9869 Counsel for the Attorney General Agent for the Counsel for the Respondent for the Province of Manitoba: Ed Van Bemmel Holly D. Penner, Gowling Lafleur Henderson Department of Justice Barristers & Solicitors Constitutional Law Branch Ottawa, Ontario 1205-405 Broadway K1P 1C3 Winnipeg, Manitoba Telephone: (613) 233-1781 R3C 3L6 Facsimile: (613) 563-9869 Telephone: (204) 945-0679 Facsimile: (204) 945-0053 Counsel for the Intervenor, Métis National Council Jean Teillet Ruby & Edwardh, barristers 11 Prince Arthur Avenue Toronto, Ontario M5R 1B2 Telephone: (416) 964-9664 Facsimile: (416) 964-8305

TABLE OF CONTENTS DATES DESCRIPTION PAGE June 1, 2001 Notice of Application for Leave to Appeal 1 (Supreme Court Act, s. 40; R.S., c.5-19, s.1) June 1, 2001 Affidavit of Ernest Lionel Joseph Blais (Sworn the 1st day of June, 2001) November 10, 1999 Affidavit of Gerald Morin (Sworn the 10th day of November, 1999) Judgments August 22, 1996 September 9, 1998 April 11, 2001 April 11, 2001 Reasons for Judgment of The Provincial Court of Manitoba (Winnipeg, Manitoba) Reasons for Judgment of Court of Queen s Bench of Manitoba (CR 96-01-17850) Reasons for Judgment of the Court of Appeal of Manitoba (AR98-30-03962) Certificate of Decision of Court of Appeal of Manitoba Memorandum June 1, 2001 Memorandum of Argument of Applicant Part I Statement of Facts Part II Points in Issue Part III Argument Part IV Order Sought Part V List of Authorities

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - Applicant (Accused), HER MAJESTY THE QUEEN, - and - Respondent (Informant), MÉTIS NATIONAL COUNCIL, (Intervenor in the Court of Appeal). NOTICE OF APPLICATION FOR LEAVE TO APPEAL Counsel for the Applicant: Agent for the Counsel for the Applicant: Lionel Chartrand, Ed Van Bemmel Aboriginal Centre Law Office Gowling Lafleur Henderson LLP 409-181 Higgins Avenue Barristers & Solicitors Winnipeg, Manitoba Ottawa, Ontario R3B 3G1 K1P 1C3 Telephone: (204) 985-5230 Telephone: (613) 233-1781 Facsimile: (204) 985-5237 Facsimile: (613) 563-9869 Counsel for the Attorney General Agent for the Counsel for the Respondent: for the Province of Manitoba: Ed Van Bemmel Holly D. Penner, Gowling Lafleur Henderson Department of Justice Barristers & Solicitors Constitutional Law Branch Ottawa, Ontario 1205-405 Broadway K1P 1C3 Winnipeg, Manitoba Telephone: (613) 233-1781 R3C 3L6 Facsimile: (613) 563-9869 Telephone: (204) 945-0679 Facsimile: (204) 945-0053 Counsel for the Intervenor, Métis National Council Jean Teillet Ruby & Edwardh, barristers 11 Prince Arthur Avenue Toronto, Ontario M5R 1B2 Telephone: (416) 964-9664 Facsimile: (416) 964-8305

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, Applicant (Accused), - and - HER MAJESTY THE QUEEN, Respondent (Informant), - and - MÉTIS NATIONAL COUNCIL, (Intervenor in the Court of Appeal). NOTICE OF APPLICATION FOR LEAVE TAKE NOTICE that the Applicant will apply for leave to this Court pursuant to Section 40 of the Supreme Court Act for an order granting the Applicant leave to appeal to this court from the decision of the Manitoba Court of Appeal delivered April 11, 2001, upholding the decision of the Manitoba Court of Queen s Bench,

Wright, J. rendered September 9, 1998 upholding the conviction of the Applicant under section 26 of the Wildlife Act of Manitoba and the dismissal of the Applicant s application under section 52 of the Constitution Act, 1982 that section 26 The Wildlife Act of Manitoba violated section 35(1) of the Constitution Act, 1982, by Judge Swail of the Provincial Court of Manitoba, or such further or other order that the said Court may deem appropriate. AND FURTHER TAKE NOTICE that the following documents will be referred to in support of such application for leave: 1. The Reasons for Decision of the Honourable Judge Swail, Provincial Court of Manitoba, delivered August 22, 1996; 2. The Reasons for Decision of the Honourable Justice Wright of the Court of Queen s Bench of Manitoba, delivered September 9, 1998; 3. The Reasons for Decision of the Honourable Chief Justice Scott of the Manitoba Court of Appeal; 4. The Affidavit of Ernest Lionel Joseph Blais, sworn June 1 st, 2001; 5. The Affidavit of Gerald Morin, sworn November 10, 1999; and 6. Such further or other material as counsel may advise and may be permitted.

AND FURTHER TAKE NOTICE that the said application for leave shall be made on the following grounds that the proposed appeal raises questions of law or of mixed law and fact of such public importance to warrant a decision by this Honourable Court, namely: 1. That the Applicant is a Métis person within the definition of section 35(2) of the Constitution Act 1982 and possesses aboriginal rights as they existed in 1982; 2. That section 13 of the Natural Resources Transfer Agreement, which was entrenched in the Canadian constitution in 1930 provides subsistence hunting rights for Indians on the Prairie provinces and in particular, in Manitoba; 3. That the Applicant, as a Métis person, falls within the constitutional meaning of the term Indian under section 13 of the NRTA; 4. That section 26 of the Wildlife Act of Manitoba which the Applicant stands convicted of, is inapplicable in respect to the Applicant, and of no force or effect to the extent that it infringes or limits the Applicant s right to hunt under section 13 of the NRTA; 5. That the Manitoba Court of Appeal erred in law in failing to declare under section 52 of the Constitution Act, 1982, that section 26 of the Wildlife Act of Manitoba was inapplicable to the Applicant; 6. That the Court of Appeal erred in law in failing to consider and weigh the evidence of the hunting customs and practices of Manitoba Métis before 1930 when considering the meaning of the term Indian under Section 13 of the Natural Resources Transfer Agreement, and in placing weight upon the lack of evidence of

the hunting practices of the Applicant and his direct ancestors, and in placing weight on the geographical location of where the alleged offence took place and the lack of evidence of Métis hunting in that area of Manitoba. Dated at Winnipeg, Manitoba this 1st day of June, 2001. Lionel Chartrand Solicitor for the Applicant, Ernest Lionel Joseph Blais Aboriginal Centre Law Office 409-181 Higgins Avenue Winnipeg, Manitoba R3B 3G1 Telephone: (204) 985-5230 Fax: (204) 985-5237 E-mail: lchartrand@legalaid.mb.ca TO: AND TO: AND TO: AND TO: THE REGISTRAR OF THIS COURT: THE ATTORNEY-GENERAL FOR THE PROVINCE OF MANITOBA Counsel for the Attorney General for the Province of Manitoba: Holly D. Penner, Department of Justice Constitutional Law Branch 1205-405 Broadway Winnipeg, Manitoba R3C 3L6 Telephone: (204) 945-0679 Facsimile: (204) 945-0053 MÉTIS NATIONAL COUNCIL, Intervenor at the Court of Appeal AND TO: Counsel for the Intervenor, Métis National Council Jean Teillet Ruby & Edwardh, barristers 11 Prince Arthur Avenue Toronto, Ontario

M5R 1B2 Telephone: (416) 964-9664 Facsimile: (416) 964-8305 NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in reply to this application for leave within 30 clear days after service of the application. If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to section 43 of the Supreme Court Act.

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - Applicant (Accused), HER MAJESTY THE QUEEN, - and - Respondent (Informant), MÉTIS NATIONAL COUNCIL, Intervener). AFFIDAVIT OF ERNEST LIONEL JOSEPH BLAIS Sworn the 1st Day of June, 2001 Counsel for the Applicant: Lionel Chartrand, Aboriginal Centre Law Office 409-181 Higgins Avenue Winnipeg, Manitoba R3B 3G1 Telephone: (204) 985-5230 Facsimile:(204) 985-5237

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - Applicant (Accused), HER MAJESTY THE QUEEN, - and - MÉTIS NATIONAL COUNCIL, Respondent (Informant), Intervener). AFFIDAVIT OF ERNEST LIONEL JOSEPH BLAIS I, ERNEST LIONEL JOSEPH BLAIS, of the City of Winnipeg, in the Province of Manitoba, MAKE OATH AND SAY AS FOLLOWS: 1. THAT I am the Applicant in the within Leave Application and as such I have personal knowledge of the matters hereinafter deposed to by me, except where same are stated to be based upon information and belief. 2. THAT at the time I was charged with the Wildlife Act offence herein, I was president of the Manitoba Métis Federation and was interested in assisting to have the subsistence hunting law for Métis people clarified. 3. THAT there are continued to be conflicting court decisions from Alberta,

Saskatchewan, Ontario and Manitoba with respect to subsistence hunting rights for the Métis people. 4. THAT I estimate that there are over 200,000 Métis living in Canada, over 100,000 on the prairie provinces and approximately 60,000 in Manitoba. 5. THAT there are significant numbers of Métis families throughout Canada who can or could very much benefit from subsistence hunting to supplement their livelihood. 6. THAT I have attended numerous national conference on Aboriginal issues and I have learned that the right to subsistence hunting and fishing is an important practice for Métis families throughout Canada. 7. THAT on February 23, 2001, the Ontario Court of Appeal released its decision in R. v. Powley ruling that the Métis accused in that case had common law Aboriginal hunting rights preserved under Section 35 of the Constitutional Act 1982. 8. THAT I am advised by my solicitor, Lionel Chartrand, and verily believe that the Attorney General for Ontario has filed an Application for Leave to Appeal the decision to the Supreme Court as well as a motion to postpone the hearing of the Leave Application for a year pending government negotiations with Métis representatives.

9. THAT the issue of whether the Métis possess Aboriginal rights is an important issue. It not only affects the subsistence hunting and fishing practices of Métis people but the answer to those questions may affect the interpretation of Section 91(24) of the Constitution Act 1867 and have an affect over the financial responsibilities apportioned between the federal government and the provincial governments over certain programs and services. 10. THAT I make this Affidavit bona fide in support of my within Leave Application. SWORN BEFORE me at the City ) of Winnipeg, in the Province of ) Manitoba, this 1st day of June, 2001. ) ERNEST LIONEL JOSEPH BLAIS

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - Applicant (Accused), HER MAJESTY THE QUEEN, - and - Respondent (Informant), MÉTIS NATIONAL COUNCIL, (Intervenor). MEMORANDUM OF ARGUMENT OF APPLICANT Counsel for the Applicant: Lionel Chartrand, Aboriginal Centre Law Office 409-181 Higgins Avenue Winnipeg, Manitoba R3B 3G1 Telephone: (204) 985-5230 Fax: (204) 985-5237 E-mail:lchartrand@legalaid.mb.ca

IN THE SUPREME COURT OF CANADA (Manitoba Court of Appeal) BETWEEN: ERNEST LIONEL JOSEPH BLAIS, - and - Applicant (Accused), HER MAJESTY THE QUEEN, Respondent (Informant), - and - MÉTIS NATIONAL COUNCIL, (Intervenor). MEMORANDUM OF ARGUMENT OF APPLICANT INDEX Page PART I PART II PART III PART IV PART V STATEMENT OF FACTS POINTS IN ISSUE ARGUMENT ORDER SOUGHT LIST OF AUTHORITIES

PART I STATEMENT OF FACTS 1. The Applicant was charged with unlawfully hunting deer out of season on February 10, 1994, contrary to s.26 of the Wildlife Act, R.S.M. 1987, c.w130, as amended by S.M. 1989-90, c.27, s.13. The Applicant was convicted on August 22, 1996. Both of the Applicant s appeals to the Court of Queen s Bench and Manitoba Court of Appeal were dismissed. 2. The following agreed Statement of Facts was filed as an exhibit at trial: 1. That on the 10th day of February, 1994, the said Defendants Ernest Lionel Joseph Blais, Gordon Joseph Lamirande, and Roy Lionel Smith hunted for deer on the North West Quarter of Section 29, Township 1, Range 13 east of the Principal Meridian near the hamlet of Vassar at a location within Game Hunting Area 35, and within the Local Government District of Pine, in the Province of Manitoba. 2. That on the 10th day of February, 1994, the hunting of deer was prohibited in Game Hunting Area 35 by the terms of the Wildlife Regulations passed pursuant to The Wildlife Act, C.C.S.M. c.w-130. 3. The land upon which the above-mentioned Defendants were hunting was unoccupied Crown land.

4. The above-mentioned Defendants were hunting for food for themselves and for the members of their immediate families. (Appeal Book, v. 4, Tab 15, pp. 751-752) 3. The Learned Trial Judge found the Applicant to be a Métis person. 4. The Learned Trial Judge found that the evidence submitted on behalf of the Applicant as to Métis hunting practice established that big game hunting was an integral part of the Métis culture.

PART II POINTS IN ISSUE 5. Is the Applicant, being a Métis, encompassed by the term Indian in paragraph 13 of the Natural Resources Transfer Agreement, 1930, as ratified by The Manitoba Natural Resources Act, (1930) 20-21 Geo. V, c.29 and confirmed by the Constitution Act (1930), 20-21 Geo. V, c.26 thereby not being in violation of s.26 of The Wildlife Act? 6. Does a Métis claimant of section 13 NRTA rights have the onus to prove that he possesses common-law Aboriginal rights? 7. Is the issue of Aboriginal hunting rights and the effect of Section 13 of the NRTA a question of sufficient public importance to warrant a decision of this Honourable Court?

PART III ARGUMENT Question of Law 8. The central question before the Manitoba Court of Appeal upon which the Applicant was granted leave to appeal is: Is the Applicant, being a Métis, encompassed by the term Indian in paragraph 13 of the Natural Resources Transfer Agreement, 1930, as ratified by The Manitoba Natural Resources Act, (1930) 20-21 Geo. V, c.29 and confirmed by the Constitution Act (1930), 20-21 Geo. V, c.26 thereby not being in violation of s.26 of The Wildlife Act? Section 13 N.R.T.A. 9. Paragraph 13 of the Natural Resources Transfer Agreement 1930 as ratified by the Manitoba Natural Resources Act 1930, 20-21 George V Chapter 29 and confirmed by the Constitution Act 1930, 20-21 George V Chapter 26 reads as follows: 13. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indian shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access. Reasons for Dismissal

10. The central reason for the Manitoba Court of Appeal answering the question in the negative is summarized by Scott C.J.M. at paragraph 54 of the Decision: In this case, there is a firm finding by the trial judge that hunting was integral to the Métis way of life. The difficulty for the Appellant is the evidence-or rather the lack thereof- connecting this fundamental and historical way of life to any particular land or geographical area, specifically that area of the Province of Manitoba where the hunting took place. Summary of Grounds for Proposed Appeal 11. It is respectfully submitted that the Court of Appeal erred in law in treating the central question before it as primarily an issue of whether the Applicant, personally and through his ancestors, possessed common-law Aboriginal rights to hunt. It is submitted that using this test is an error for the following summarized reasons: 1. Individual rights v. rights of collectivity Answering the central question is primarily an exercise of constitutional and statutory interpretation, namely, what is the meaning of the term Indian in paragraph 13 of the NRTA. It is conceded, as the majority ruled in R. v. Grumbo, that the Court cannot decide this question in a vacuum and thus requires evidence relating to pre-existing Aboriginal rights to land, the existence or non-existence of (pre-existing Aboriginal or treaty rights to hunt) vested in the Métis (paragraph 31 of majority reasons in R. v. Grumbo, (1998), Sask. C.A.). However, this evidence, as suggested in R. v. Grumbo, relates to the pre-existing rights that the Métis held. This evidence is submitted by the Appellant to concern the general past hunting and subsistence practices of the Manitoba Métis peoples throughout the province that existed at the time of the enactment of the NRTA in 1930. Therefore, it is an error of the Court of Appeal to consider, instead, the personal and ancestral hunting rights of Mr. Blais, the Appellant. 2. Particular geographical area v. province-wide practices The Court of Appeal used the common law test of Aboriginal rights being restricted to areas of traditional territory, i.e. lands historically used by the community the individual belongs to and over which land the community and

individual continues to hunt. The proper test, it is submitted, is one which considers the traditional practices province-wide of the Métis peoples in general. 3. Present day v. 1930's time frame The Court of Appeal considered the Appellant s hunting history and that of his family up to the present day. It is submitted that a proper consideration of the meaning in the 1930 NRTA would review Métis hunting practices and history only up to 1930. 12. It is respectfully submitted that the very wording of paragraph 13 of the NRTA is suggestive of a merger of rights as the section clearly contemplates a general provincewide application of the right of Indians to hunt on all unoccupied lands of the Province. Does a Métis claimant of section 13 NRTA rights have the onus to prove that he possesses common-law Aboriginal rights? 13. The basis of the Applicant s argument is that the effect of the Section 13 1930 NRTA provisions was to merge and freeze the then-existing hunting and fishing rights of all Aboriginal persons, Inuit, Indians or Métis, such that all Indian (as then Aboriginal people were referred to) people now could hunt and fish over all unoccupied Crown lands for subsistence purposes, regardless of whether a sub-group of Indians actually possessed treaty or common-law Aboriginal rights. 14. There is nothing in the language of the constitutional enactment to suggest that only some groups of Indians but not others were beneficiaries of Section 13 of the NRTA. 15. Clearly, the treaty and Aboriginal rights of some bands or groups of First Nations Indian people were different from one another. Some Prairies treaties contained hunting rights provisions while other treaties did not. And by constitutional amendment, after the

enactment of the 1930 NRTA, all First Nations Indian people now enjoyed that right, whether or not particular First Nations Indians previously enjoyed that right under common law or treaty rights. 16. Thus, after 1930, any First Nations Indian, so long as they could prove their membership as an Indian (which in practice was always uncontested by law-enforcement agencies for Indian Act status Indians), could legally hunt for subsistence anywhere in the affected provinces without the requirement to show that he or she personally, or his or her community of Indian people, had a historical connection to the practice and over the territory in question. In other words, as a result of the constitutional provision, it became unnecessary for individual Indians to prove they or their community possesses Aboriginal rights to hunt over the territory in question. 17. The Aboriginal hunting rights of the First Nations or Indian Act status Indians have not previously been questioned. While it is submitted that while an issue may exist into the question of whether Métis in general in Manitoba possessed Aboriginal hunting rights in 1930, it is respectfully submitted that it is only relevant in determining the question of whether the term Indians in the 1930 enactment included all Aboriginal peoples to consider whether the Métis in general then possessed such rights, as opposed to the rights of the particular claimant before the court and his or her immediate ancestors. For clearly, if the Métis community in general, as a collectivity, and as an Aboriginal peoples, had rights to hunt in 1930, then the intent of the NRTA was to provide such rights for all Indians (Métis and other Aboriginal peoples).

18. Thus, if a Métis person fell within the constitutional definition of Indian, these merged rights would allow a Métis hunter to hunt over any unoccupied lands so long as it is for the enumerated purpose, that is, hunting for food for themselves or family. 19. In Manitoba, the Court of Queen s Bench in R. v. McPherson and Christie (1994), 9 Man. R. (2d) 290 (Q.B.) held that two Métis persons hunting moose under similar provisions of the Wildlife Act possessed Aboriginal hunting rights that had not been extinguished. 20. The Manitoba Court of Appeal did not disapprove of that ruling but rather they distinguished it: these are not the facts before us. 21. The Manitoba Court of Appeal in the case at bar stated: In this case, there is a firm finding by the trial judge that hunting was integral to the Métis way of life. The difficulty for the Appellant is the evidence-or rather the lack thereof- connecting this fundamental and historical way of life to any particular land or geographical area, specifically that area of the Province of Manitoba where the hunting took place. 22. Thus, the Manitoba Court of Appeal recognized the trial judge s finding that hunting was integral to the Métis way of life. 23. It is respectfully submitted that the Court erred in law in ruling that an onus existed on the Applicant to adduce evidence that he or his immediate ancestors possessed Aboriginal rights. It should be sufficient, to prove that he is a member or descendant of the Métis

peoples who became beneficiaries of that right in 1930. For if there existed a Métis peoples in 1930, who, as an Aboriginal or Indian peoples in 1930 enjoyed Aboriginal hunting rights, then upon the section 13 becoming entrenched, all members of that collectivity became entitled to those rights. The only factual issue then remaining for a present-day claimant would be to prove that he indeed is a member or descendant of that historic Métis collectivity. 24. In other words, it is submitted that an Aboriginal person claiming rights under section 13 of the NRTA need not prove in each case his connection to a specific community and that community s specific connection to specific territories over which traditional hunting integral to the culture of the peoples was practiced. Similarly, a status Indian person found subsistence hunting over unoccupied Manitoba Crown land, if charged under the Wildlife Act need not prove that he or she possessed Aboriginal hunting rights. 25. Alternatively, it is respectfully submitted that the evidence led by the Applicant which evidently was sufficient in the Learned Trial Judge s mind to make the critical finding that hunting was integral to the culture of the Métis was sufficient along with the specific evidence led of his own hunting, his father s hunting and that of other relatives in the general area, to make findings that the Applicant possessed common law Aboriginal rights. 26. Therefore, it is submitted that the proper inquiry of the Court of Appeal should have been to weigh the evidence of the general history of the Manitoba Métis, their identity, their hunting customs and practices and the exercise of common-law Aboriginal hunting rights.

The Applicant submitted volumes of historical evidence, and expert evidence on this point. There was sufficient evidence upon which the Court of Appeal could have considered the Aboriginal hunting rights of the Métis prior to 1930, irrespective of any lack of evidence with respect to the Applicant s and his forefathers own hunting history, to consider and weigh it, along with other factors, in the interpretation of section 13 of the NRTA. 27. Moreover, it is respectfully submitted that the Court of Appeal failed to consider the 1982 constitutional amendments when interpreting section 13 of the NRTA. 28. Section 35 of the Constitutional Act 1982 reads as follows: s.35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. s.35(2) In this Act, the aboriginal peoples of Canada include the Indian, Inuit and Métis peoples of Canada. 29. Part IV and Part V of the Schedule B of the Canada Act (U.K.), 1982, c. 11, Constitution Act, 1982, reads as follows: PART IV CONSTITUTIONAL CONFERENCE 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 agenda an item respecting constitutional matters that directly affect the 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 the 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. PART IV.1 CONSTITUTIONAL CONFERENCES 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 constitutional 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 participate in the 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. (4) Nothing in this Section shall be construed so as to derogate from subsection 35(1). 30. The Applicant respectfully submits that the Manitoba Court of Appeal erred in law in failing to consider what effect, if any, these constitutional amendments had. 31. It is respectfully submitted that it was open to the Court to consider the unusual provisions found in Section 37, to find that the term Indian should be given a broad interpretation, one broader than the Manitoba Court of Appeal found in adopting the provisions of the 1927 Indian Act. As an example, the enactment of section 37 of the Constitution Act 1982, may be a recognition and affirmation of a view that enforcement, legislative and regulatory practices of the years since confederation and since 1930 have not honoured certain rights of the Métis as an Aboriginal peoples and that therefore, the First Ministers Conferences should particularize and detail those collective rights of the Métis that have not yet been articulated, but recognized in 1982 to exist.

32. Finally, it is respectfully submitted that the Manitoba Court of Appeal erred once it had found that the term Indian had the same meaning as the 1927 Indian Act, in failing to consider whether the Applicant qualifies under the 1927 Indian Act definition of Indian, e.g. followed an Indian mode of life and failing to make such a finding, failed to address whether the case should be sent to trial for further evidence on that point. 33. The Indian Act, R.S.C. 1927, c. 98, s. 2(h) which was held by the Court of Appeal to contain the definition of the term Indian for the purposes of the NRTA 1930, included a non-treaty Indian. That term was defined by the 1927 Indian Act as follows: Non-treaty Indian means any person of Indian blood who is reputed to belong to an irregular band or who follows an Indian mode of life, even if such person is only a temporary resident in Canada. 34. In R. v. Ferguson, [1993] 3 C.N.L.R. (Alta. Prov. Ct.; aff d [1994] 1 C.N.L.R. 117 (Alta. Q.B.), the Alberta Court of Queen s Bench upheld a Provincial Court finding the Métis accused to fall within the definition of the sec. 12 of the Alberta NRTA clause as the accused was found on the evidence to have followed the Indian mode of life. Is the issue of Aboriginal hunting rights and the effect of Section 13 of the NRTA a question of sufficient public importance to warrant a decision of this Honourable Court? 35. The question before this Court is an important one as there are over 200,000 Métis living in all areas of Canada, and 100,000 Métis persons resident on the prairie provinces, Alberta, Saskatchewan and Manitoba, over which this provision would have application. Estimates of the Métis population in Manitoba include 60,000 or more.

36. Many Métis families across Canada would benefit from the acknowledged right to subsistence hunting. 37. In determining the NRTA issue, the issue of whether the Métis possess common law or section 35 Aboriginal rights to hunt may require to be decided. That is an issue which has national scope, while the specific NRTA issue has application on the Prairie Provinces. 38. There could also be other Aboriginal rights possessed by Métis if indeed they have Aboriginal hunting rights. 39. There currently exists inconsistent case law in Ontario, Manitoba, Saskatchewan and Alberta with respect to the issue of Métis Aboriginal hunting rights. They are as follows: 1. In Ontario, the Court of Appeal in Ontario in the case of R. v. Powley [2001] O.J. No. 607 (Ont. C.A.) ruled that the Métis have common law Aboriginal hunting right in fact situations as proved in the Powley case. The Ontario Attorney General has applied for leave to appeal to the Supreme Court of Canada and for an extension for the hearing of that leave hearing pending government negotiations with Métis representatives from Ontario. 2. In Manitoba, the Court of Queen s Bench decision, on a summary conviction appeal by the Crown, in R. v. McPherson and Christie, upheld the trial decision on the specific facts of that case, thereby confirming Aboriginal common-law hunting rights similar to those in R. v. Powley in similar fact situations. This decision was accepted by the Manitoba Court of Appeal in the present case, but distinguished on its facts. 3. In Saskatchewan, there are lower Court decisions confirming Aboriginal hunting rights for the Métis, however, the Court of Appeal in R. v. Grumbo, after ruling that their court had wrongly decided R. v. Laprise, ordered the case back to trial for more evidence, and did not ultimately rule on the question of whether Métis persons fall within the definition of section

13 of the NRTA. 4. In Alberta, the decision of R. v. Ferguson [1994] 1 C.N.L.R. 117 (Alta. Q.B.) ruled that Métis who...follows an Indian mode of life possess the right to hunt under the Alberta NRTA. The Queen s Bench decision was not appealed by the Crown.

PART IV ORDER SOUGHT 1. That leave be granted to the Applicant to appeal the dismissal of his conviction appeal to the Manitoba Court of Appeal, which affirmed his conviction under section 26 of the Wildlife Act of Manitoba for unlawfully hunting deer out of season on February 10, 1994. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED at Winnipeg, Manitoba this 1st day of June, 2001. Lionel Chartrand Aboriginal Centre Law Office 409-181 Higgins Avenue Winnipeg, Manitoba R3B 3G1 Telephone: (204) 985-5230 Fax: (204) 985-5237 E-mail: lchartrand@legalaid.mb.ca Counsel for the Applicant, Ernest Lionel Joseph Blais.

PART V LIST OF AUTHORITIES Page R. v. Badger [1996] 1 S.C.R. 771 R. Ferguson, [1993] 3 C.N.L.R. (Alta. Prov. Ct.; aff d [1994] 1 C.N.L.R. 117 (Alta. Q.B.) R. v. Grumbo (1998), 168 Sask. R. 78 (Sask. C. A.) R. v. Laprise [1978] 6 W.W.R. 85 (Sask.C.A.) R. v. McPherson and Christie (1994), 9 Man. R. (2d) 290, (Q.B.) R. v. Powley [2001] O.J. No. 607 (Ont. C.A.)