[7] In order to comprehend the issues raised on this appeal, it is essential to understand the complex historical facts and background of the case.  The trial therefore was lengthy, principally because it included a considerable body of such evidence relating to the history and culture of the  Métis community in the Red River Settlement area of Manitoba and elsewhere.  Many of the positions and opinions expressed by the expert witnesses were in conflict.

 [8] In a thorough and scholarly analysis, the trial judge in reasons which include a lengthy summary of the historical evidence as an appendix, found that the Métis evolved as a new "people" in the early 18th century.  By 1869 this included both English and Scot half-breeds, and the "French Métis" who also lived in the Red River community (now the City of Winnipeg and environs), though both groups were
 usually referred to collectively as "half-breeds."  In 1869, the Métis community (and others) entered into negotiations with Canada which resulted in the creation a year later of the  then "postage stamp" Province of Manitoba.  The Manitoba Act,  1870 was ratified by the Assembly of Assiniboia in June 1870. Though not a treaty since it is simply an Act of the  Parliament of Canada, the Manitoba Act, 1870 is recognized as a constitutional document.

 [10]     Section 31, therefore, acknowledged that the  Métis enjoyed what we now know as "aboriginal rights"; but did not include any reference to hunting rights.  The trial judge concluded that there were two reasons for this.  The first was  that the right to "hunt and fish, and otherwise harvest the
 fruits of the land," was "understood" at the time to be  included in the "Indian Title to the lands" extinguished by sec. 31 of the Manitoba Act.  An alternative explanation was that the right to hunt was such an essential part of the culture and lifestyle of the Métis in 1870 that it was "understood" that such rights were left to be controlled by the new provincial government (where the Métis enjoyed
 majority status at the time), as opposed to the federal government.  In this way, the hunting and fishing rights of the Métis of the Red River Settlement would be under the aegis of the new provincial government and not the federal Crown.

 [11] Based on the extensive evidence before him, the trial judge had no difficulty in finding that "there was no likelihood of Métis being confused with Indians in government documents following the period of the resistance in 1870" (at [1997] 3 C.N.L.R. 109, p. 127).

 [12]     He then went on to hold (at p. 139):

      In my view, the evidence as to Métis hunting practices
      submitted on behalf of the accused in this case,
      establishes that big game hunting was indeed an integral
      part of the Métis culture.

 [13]     Dealing with the charges before him, he found (at pp. 119-120):

      With regard to the modern day exercise of alleged Métis
      hunting rights in the Province of Manitoba, counsel for
      the accused tendered quite limited evidence.  Essentially
      this was the evidence of the accused Ernest L. J. Blais
      and that of Mr. Edward Head, a Past President and Senator
      (or Elder) of the Manitoba Métis Federation.

 [14]     The appellant, Mr. Blais, "was really only able to give evidence of his own experience hunting as a boy with his father, ..." (at p. 120).  As to the evidence of Senator Head (a Métis Nations Senator called to testify by the appellant), he noted (at p. 123):

      Senator Head gave some fairly detailed evidence about
      hunting areas around where he grew up as well as on
      Kississing Lake.  No such detailed evidence was given by
      him however with regard to the southern part of the
      Province of Manitoba [where the offence took place].

 [15] At trial, counsel for the appellant and the respondent (the Métis National Council did not appear on the scene until granted permission to intervene before this court) agreed, and the trial judge accepted, that an aboriginal right to hunt must be based upon the existence of aboriginal territorial title.  In doing so, he followed the decision of the Québec Court of Appeal in R. v. Adams, [1993] 3 C.N.L.R. 98.  Adams, which will be extensively reviewed later, was subsequently reversed by the Supreme Court of Canada ([1996] 3 S.C.R. 101).  See as well R. v. Van der Peet, [1996] 2 S.C.R.
 507.  For our purposes now, it can simply be stated that both Adams and Van der Peet hold that an aboriginal claim to title to land is simply one aspect of a broader entitlement based on the concept of aboriginal rights, and that such rights do not exist only where a claim to aboriginal title has been made
 out.  On this issue then, there can be no doubt that the trial court got off on the wrong track.

 [16]     In determining the question whether an aboriginal territorial title had been made out, Swail P.J. said (at p. 133):

      I conclude that the Métis, in the Red River Settlement
      area, at and for some time before the creation of the
      Province of Manitoba in 1870 were an organized society.
      I also conclude that the Métis society of that day
      recognized the right of its constituent members to hunt
      in the lands to which the Métis had title.

 [17]     After properly instructing himself that case law required a "liberal interpretation" in determining what were traditional hunting rights for the Métis, he went on to hold (at p. 134):

 [18]     He therefore concluded (ibid.):

      ... there is effectively no evidence that the Métis ever
      had occupation of the territory where the alleged offence
      occurred in any manner at all either as a hunting ground
      or otherwise.

 And again (at p. 136):

      The accused in this case have effectively brought forward
      no evidence whatsoever of occupation of the territory in
      question by the Métis people at any period of history.

 He held (at p. 139):

      Although the evidence was not particularly time specific,
      my conclusion would be that this practice was integral to
      the culture of the Métis by 1818, the date the Crown
      acknowledges as being appropriate for the establishment
      of British sovereignty in the area where the hunting
      offences are alleged to have occurred.

 But (at p. 138):

      For the reasons that I have already referred to however,
      my conclusion is that the accused have placed no evidence
      before this Court of Métis occupation (joint with any
      other Aboriginal group, or exclusive) to this territory
      in 1818, or at any time since then.

 [19]     In the end (at p. 139):

      My conclusion is that the accused in this case have not
      proven an Aboriginal title in the area where the alleged
      offence occurred. It follows then, that they have also
      failed to establish an Aboriginal (in this case Métis)
      right to hunt in this area.

 [20]     Although this finding ended the matter, he nonetheless went on to consider the question whether, on or after 1870, the Métis hunting rights had been extinguished. After lengthy analysis, he held that a combination of sec. 31 of the Manitoba Act, and the Dominion Lands Acts, 1874 and
 1883, demonstrated a clear intention on the part of the Crown to extinguish the aboriginal title of the Métis to any portion of the Province of Manitoba.

 [21]     At the end of his lengthy reasons, he dealt briefly with the narrower, though no less important, issue now before us, namely, the scope and reach of sec. 13 of the NRTA.