Big win for B.C. Metis

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Charges laid against six Metis men under the province's Wildlife Act were dismissed on April 28 when provincial court Judge Don Waurynchuk ruled the men were exercising their Aboriginal right to hunt.

Dan LaFrance, John Grant Howse, Leonel Courchaine, Frederick Laboucane, Ronald Monsen and John Pratt expect the province to appeal the case, but they were delighted by the decision that LaFrance said vindicates their claim that the provincial government has refused to come to grips with court decisions that define Aboriginal rights.

"After April 28, I feel like a different person," he told Windspeaker, the day after the decision was handed down. "I've always said I don't need any court to tell me who I am, but now they've had to admit we have these rights and it feels different, you know? It's been a very emotional day."

The list of 14 charges included hunting without a licence, unlawfully using a motor vehicle for hunting, carrying a firearm without a licence, killing a moose out of season, illegally possessing a moose carcass and similar charges related to the killing of a white antlerless deer. None of the accused denied the charges but they pled not guilty, claiming they were Metis people with a constitutionally protected right to engage in those activities.

The judge's decision shows he was persuaded to be very sympathetic to the Metis people before him at trial. He relied on several previous cases to set the standards he needed to follow to reach his decision on the matter, including R. v Powley (a 1998 Ontario case where Metis hunting rights were upheld) and the Supreme Court of Canada decisions in Sparrow and Marshall.

Each of the accused, with the exception of Monsen whose charges were stayed because he was too ill to attend court, provided oral proof of their connection to a Metis community and convinced the judge they were in fact Metis. Once the judge accepted they had proven that, he then applied the case law with regards to the issue of what rights Metis people have.

"The evidence establishes that Metis people have suffered discrimination and prejudice from all sides including the inequality of treatment by provincial governments across Canada. Specifically, the inequality of treatment by the Wildlife Conservation officers and their political masters," the judge wrote in his decision. "It would be difficult, if not impossible, for the British Columbia provincial government to argue that they have not had enough time since the coming into force of the Constitution Act, 1982 to set up a process to determine the practice, customs or traditions of Aboriginal Metis claims that would most definitely arise. Hunting, fishing and food gathering is a pretty basic right to Aboriginal peoples."

Judge Waurynchuk noted that the Supreme Court of Canada has ruled that governments can only infringe Aboriginal rights if there is a compelling reason and then noted that consultation with Aboriginal people is legally required. He found that British Columbia had done nothing to take those decisions into account.

"The evidence presented at trial indicates unequivocally that the government of British Columbia has not recognized or affirmed the Aboriginal hunting rights of its Metis citizens," the judge wrote. "In this case I find that Aboriginal rights of Metis people in British Columbia to hunt moose and deer is interfered with by the regulatory scheme currently in place. There has been no consultation with the local or provincial Metis councils, associations or Elders concerning Aboriginal hunting rights."

The actions and words of the conservation officers in laying the charges were described in the judgment as "discriminatory" and "inappropriate" by Waurynchuk.

The court decision was a strongly worded, unreserved victory for Metis people and an equally strong rebuke to the provincial government. LaFrance said the decision will affect Metis rights across the country and also lends weight to claims by First Nations leaers that the British Columbia government has refused to embrace the law of the land as it deals with Aboriginal rights cases.