CORE Metadata, citation and similar papers at core.ac.uk Provided by University of Saskatchewan's Research Archive La Chaas: The Métis Constitutional Right to Hunt in the Canadian Legal Consciousness A Thesis Submitted to the College of Graduate Studies and Research in Partial Fulfillment of the Requirements for the Degree of Master of Laws in the College of Law University of Saskatchewan Saskatoon By Bradley S. Bellemare © Bradley S. Bellemare, April 2006. All rights reserved. La Chaas:1 The Métis Constitutional Right to Hunt in the Canadian Legal Consciousness 2 Bradley S. Bellemare Masters of Law (LL.M.) Thesis 2006 1 La Chaas is the Michif phrase for ‘The Hunt.’ Translation was provided by Norman Fleury a Métis elder from Brandon, Manitoba. 2 “Métis Flag,” online: Métis Commission <http://www.metiscommission.com/history.htm> (as of August 21, 2005). The Métis Flag: The flag was first used by Métis resistance fighters prior to the Battle of Seven Oaks in 1816. It is the oldest Canadian patriotic flag indigenous to Canada. The Union Jack and the Royal Standard of New France bearing the fleur-de-lis are older, but these flags were first flown in Europe. As a symbol of nationhood, the Métis flag predates Canada’s Maple Leaf flag by about 150 years! The flag bears a horizontal figure eight, or infinity symbol. The infinity symbol represents the coming together of two distinct and vibrant cultures, those of European and indigenous North America, to produce a distinctly new culture, the Métis. The flag symbolizes the creation of a new society with roots in both Aboriginal and European cultures and traditions. The sky blue background of the flag emphasizes the infinity symbol and suggests that the Métis people will exist forever. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirements for the LL.M. degree from the University of Saskatchewan, College of Law, I agree that the libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor or professors who supervised my thesis work or, in their absence, by the Dean of the College Law. It is understood that any copy or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any use which may be made of any material in my thesis. i ABSTRACT The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations’ Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights. ii ACKNOWLEDGEMENTS I want to thank the Creator for giving me the gifts that have led me here today. I would like to acknowledge the Indigenous people of Treaty 6 for sharing their territory. Thank you to my parents: Barry and Debbie, my brother Eddie, my sister Renée for their support and my son. I would like to thank the members of my thesis committee; particularly, Glen Luther for having the confidence in me to complete this thesis. Glen’s uncanny ability to push me intellectually and not allow me to settle for anything less than an expansion of my mind is a gift or was it just that I did not do all the reading I was supposed to do in law school? A very special and heart felt thank you to James Sákéj ‘Youngblood’ Henderson for guiding me, not only through my thesis of law, but through law school. Sákéj is my Virgil through the nine rings of law. It is a blessing to be taught by the best mind in Aboriginal law. My most sincere thanks to the Native Law Centre for employing me for nearly five years on the Legal Pleadings Project: the benefit of that knowledge is priceless. Special thank you to Marg Brown for the endless hours of conversations we had about life in law school and outside of it. Marg you are a friend for life. I literally ate, worked, slept and lived in the Native Law Centre at times. Thanks to Diane for always keeping order at the Centre. A thank you to Rae, Wanda, Terri, Ruth, Zandra and Jamie Hammersmith for being friendly spirits around the Centre and Ben for always smiling and having good things to say even when the Riders lost. Thank you to the support staff at the College of Law: Michelle, Pam, and Kris. Particular thanks to the late Tom Jewiss for encouraging me to endure the December blues in first year law. To the professors at the University of Saskatchewan that shaped either half of my legal spirit: Norman Zlotkin, Martin Phillipson, Mark Carter, Paul Chartrand, Dan Ish, Isobel Findlay, Marj Benson, and the Graduate Committee at the U of S for entertaining my application to the LL.M. program at such a late stage in the summer of 2004 – thank-you. A special thanks to the Honourable Eric Cline for the encouragement to consider law school when I was still shipping produce in 1999-2000 and to Professor William Bartley for introducing me to the art of rhetoric. Thank-you to Dr. Frank Tough for the conversations about writing a thesis at the end of this project and to those that supported me at the Métis Archival Project at the U of A. Thanks to my best friends Terence Aubichon, Sterling McCallum, Darcy Singler, Danielle Park, Donald Morin, Patrick Nippi, Michael Reed, Instum Apao Pisim Ew-squoe, David Ristow, Clem Spyglass, Leah Bitternose, Rob Dobrohoczki and Steven Rodrigues. Each of you knows that being a student that I can not pay you back; I hope that this mention of you will be equitable consideration of that debt. Last, by no means least, a special thanks to Lazare and Roberta Whiskeyjack for their spiritual guidance and prayers. Without them I know I would have lost my way in this maze of thought and emotion; their guidance kept me true to love, spiritualism and good medicine in my heart. iii In memory of Tom Jewiss, who always reminded me that what matters is the knowledge you receive; not the grade. For James Sákéj ‘Youngblood’ Henderson, whose guidance and work habits have inspired me to never stop learning. iv TABLE OF CONTENTS PERMISSION TO USE i ABSTRACT ii ACKNOWLEDGEMENTS iii TABLE OF CONTENTS v INTRODUCTION 1 CHAPTER 1 GENERAL HISTORICAL BACKGROUND TO THE MÉTIS 1.0 Ethnogenesis of the Métis People. 6 1.1 General History of the Métis in Green Lake, Saskatchewan. 9 1.2 General History of the Métis in the Northern Okanagan, British Columbia. 17 CHAPTER 2 THE SUPREME COURT AND THE MÉTIS HUNT 2.0 Background to R. v. Powley. 21 2.1 Issues of law in Powley. 23 2.1.1 The interpretive principles… 23 2.1.2 The process for determining… 28 2.1.3 Historic government recognition… 33 2.1.4 Distinct recognition of an ...…… 35 2.1.5 There is a contemporary Métis… 39 2.1.6 The relevant time/date for …..… 42 2.1.7 Characterization of the constitutional... 46 2.1.8 The right claimed is an integral.… 50 2.1.9 The Métis continue to exercise the……. 53 2.1.10 The Métis right has not been… . 56 2.1.11 The Regulatory scheme infringed……. 58 2.2 Application of the Powley test in other…… 65 v CHAPTER 3 FISHING FOR MÉTIS RIGHTS IN SASKATCHEWAN AND B.C. 3.0 British Columbia Métis Rights. 66 R. v. Willison 3.1 Saskatchewan Métis Rights. 75 R. v. Laviolette CHAPTER 4 EMPTYING THE TRAPS OF THE CANADIAN LEGAL CONSCIOUSNESS 4.0 Introduction. 83 4.1 Adjudication and Legislation. 86 4.2 Adjudication of Aboriginal Law. 88 4.2.1 The distinctness of First Nations… 4.2.2 Nature of the claim being made. 98 4.2.3 Continuity of the rights. 105 4.2.4 Other considerations in Van der Peet. 109 4.2.5 Duty of consultation. 114 4.3 Ideological Principles of Adjudication. 122 4.3.1 General idea of Aboriginal rights. 124 4.3.2 The Métis: distinct societies and… 129 4.4 Theoretical Conclusion. 135 CHAPTER 5 5.0 CONCLUSION 136 BIBLIOGRAPHY 139 vi INTRODUCTION As a Métis person, I see the pre-existing rights of Indigenous peoples being eroded in Canada. I see governments ignoring rulings from the Supreme Court of Canada about the rights that Aboriginal peoples have from our communities, our governments and within the Canadian constitution. Litigation is preferred to negotiation and we are forced into the courtroom to settle issues on a case-by-case basis.