Métis victorious in hunting rights case

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Steve Powley and his son Roddy are relieved they can get back to the bush to hunt for food for their family without being harassed by provincial conservation officers.

On Feb. 23, the Ontario Court of Appeal issued a unanimous verdict that confirmed the Powleys' right to hunt without a licence. The decision in their case is the first time the harvesting rights of Métis have been upheld by Ontario's highest court, and many believe the case will set a precedent for other jurisdictions.

The court ordered that "Recognition of Métis hunting rights adds a significant element that must be factored into the regulatory scheme, and now that the Métis rights have been recognized, the government must proceed with immediate dispatch to establish a scheme that accords due respect and recognition to those rights."

The government has a year. Even if they seek and are granted leave to appeal to the Supreme Court of Canada, the Powleys' right to hunt is safe.

Justice Robert J. Sharpe said it is the first case to reach the appellate level dealing with the rights of the Métis peoples under Section 35 of the Constitution.

The case is viewed by many non-treaty people as a milestone. They believe it begins to solve long-standing issues for both Aboriginal and non-Aboriginal people as to how Métis rights should be defined and implemented.

Still others, including the Ontario Federation of Anglers and Hunters, see the judgement as opening the floodgates to people being able to hunt, trap, fish and extract resources from the land without limitation or concern for conservation. The federation is worried the game is under assault by people who pay nothing towards maintaining the resource. It says there may not be enough moose to go around if thousands of people have an unrestricted right to hunt.

Steve Powley thinks the case will be appealed.

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"I imagine it will end up going to the Supreme Court and that way (the prime minister) will be ordered to deal (with the Métis)." Powley said he hopes the government doesn't take the other alternative of doing nothing.

"I hope it goes to the Supreme Court. I mean, it is expensive and it's a lot of time, but for all concerned I think that would be the better way to go."

In the meantime, "my family, and my brother's family can immediately hunt without being harassed or paying a licence. Three courts upheld our right to hunt and fish."

The Powleys' ordeal began in 1993 when Ministry of Natural Resources officers in Sault Ste. Marie, Ont. charged them with illegal hunting and possession of moose. The men identified themselves as Métis who were entitled to hunt without a licence.

In 1998 the men were acquitted of the charges in the lower court and again in 2000 in the Superior Court of Ontario.

On appeal, the court granted intervenor status to four Aboriginal organizations: the Ontario Métis Aboriginal Association (OMAA), of which the Powleys were members in 1993; Aboriginal Services of Toronto (which provides legal advice); the Congress of Aboriginal Peoples; and the Métis National Council, with which the Métis Nation of Ontario (MNO) is affiliated. The Powleys now are members of the MNO.

"The judgment has a couple of things in it that reach far beyond the simple application to Métis people," said Aborginal rights lawyer Jean Teillet, who represented the Powleys.

Mark Holmes, spokesman for the Ontario Federation of Anglers and Hunters (OFAH), would agree. But he said "it is not a matter of rights so much as it is about conservation of a resource.

"The concern begins and ends with the principles of conservation, and there are a lot of questions that are unanswered when it comes to Métis getting status rights."

Teillet and the Aboriginal groups say they are conservation-minded too, but the main question dealt with in Powley is very much one of rights. The first thing, Teillet said, is that the government won't be able to continue its practice of ignoring constitutional rights for Aboriginalpeople until the offended Aboriginal party takes the government to court.

"One of the ways that government has dealt with Aboriginal rights to date . . . is to deny that there is any substance to a claimed right until it has been proven in court." Teillet added that all governments across Canada have taken this approach.

She explained that while Section 35 of the Constitution recognizes and affirms Aboriginal and treaty rights, "the government treats that as if Section 35 is a box that is empty until you go to court and the court fills it up with a right. And until the court fills it up with a right, government thinks that they have no obligations to Aboriginal people to protect or preserve or do anything about the rights that are in that box because they don't think they're there."

Teillet said this is an "important statement for all Aboriginal people; that governments have obligations to do something before courts make a decision."

The government has not dealt the same way with non-Aboriginal people, Teillet said. She used the example of constitutional protection of religious rights to illustrate her point.

"I think that generally people think that you might have another right, let's say a freedom of religion right. They know you've got a freedom of religion right; they don't treat it as if you don't have one unless you go to court and prove it. They treat it as if you do have one.

"Now, there may be some circumstances where they don't quite know what that means and they have to litigate it, but as a general rule, they understand that everybody's got freedom of religion, or freedom of association or the right to free speech. . . . The box isn't empty until you go to court on those. . . . (but) they're treating Aboriginal rights in an entirely different way."

The second important issue in the Powley case that will "reach beyond Métis," Teillet said, is that the appeal court ordered the government to enter into "consensual-based negotiations. And that's a very very, new concept."

In this case the Crown asked for a year's suspension of the rights so they could "get their regulatory regime in line." But Teillet said the government did not anticipate the court would order it to enter into consent-based negotiations with the Métis. The court, however, said the Ontario government had to give priority to Aboriginal rights, that any changes it made to its regulatory regime had to reflect that priority, and further, that the government must not make a distinction between Indian rights and Métis rights.

"That idea of consent-based negotiations (is) going to have repercussions all over the country too, because people have been chafing all over the country under this sort of consultation model, and so this is new and it's very important law," the lawyer said.

Holmes said, "we think treaty rights and status rights should be upheld no more and no less than the laws prescribe. And where there aren't treaty rights, they must be established clearly and conclusively. And that's part of the process now with the Métis people or the Métis Nation of Ontario."

Holmes indicated OFAH isn't satisfied with the way the process is going, however.

"The decision that was rendered regarding the Powleys, and that was over the harvest of the moose outside of conservation laws, we have grave concerns with."

He added "it's taken a lot of work to devise a system . . . which has more hunters than there are moose, yet is still able to provide most with a hunting opportunity and at the same time protect that resource."

He said Ontario's present system for the hunting tag draw takes into account the scientific and biological data being accumulated, and factors in such things as Aboriginal harvest, mortality from natural causes and poaching.

"The system . . . works," said Holmes.

"This court decision has just wiped out that system, or it will in a year when it comes into effect. Unless certain things are negotiated."

Holmes said his organization i prepared to sit down with Aboriginal groups and he denied the statement of MNO president Tony Belcourt that OFAH refused to hear an explanation of MNO's harvesting policy at a recent OFAH conference. He said that as their conference was wrapping up he asked to meet with MNO the following week.

Belcourt said MNO has a strict harvesting policy whereby "captains of the hunt" decide which Métis can hunt, where they can hunt, and what limits will be imposed on them. They also ascertain that potential hunters are qualified to use firearms.

Powley confirmed Belcourt's assertion that the MNO's hunt captains issue harvesting cards and that people aren't charged if they have the card and a MNO membership card.

"The money for them harvesting cards goes towards the court cases, Powely added.

Teillet thinks a lot of research and work needs to be done to fulfill the Court of Appeal mandate.

"Powley stands for one basic proposition, which is that people who are directly genetically linked to a Métis community that existed prior to, say, the Canadian government or the greater Canadian community taking over-if you can prove that, then you've got a harvesting right. . . . That's just the circumstances of that case. That's because Steve Powley tracked right back to the Lesage family, who were part of that original, historical Métis community there. So what Powley really only proves is that people who are still in that area and who come from that original community that they can harvest. Now, I firmly believe that lots of other people can do it too, who would be called Métis, but Powley doesn't prove them." She said the case didn't cover a whole host of Métis issues, such as what would be the rights of a Metis person who was born in another part of the province and had moved to the Sault Ste. Marie area and become a part of the Métis community there.

"Can that person exercise the harvesting rights that belongs to that Métis community? We didn't solve that problem."

Powley was