[46]     Did the trial judge err in coming to his critical findings that, while hunting game was an integral part of the Métis culture and society, the appellant had failed to establish an aboriginal right to hunt in the area of the province in question?  As has already been noted, it was an "error" for the trial judge to assume that the existence of an aboriginal right to hunt and gather could only be established if it was part of a claim for aboriginal title.  This legal principle, which he was invited by both counsel to adopt, was shortly thereafter changed by the Supreme Court.  As the court explained in Adams (at paras. 26-27):

      In Van der Peet, at para. 43, aboriginal rights were said to be best understood as:

      ...first, the means by which the Constitution recognizes
      the fact that prior to the arrival of Europeans in North
      America the land was already occupied by distinctive
      aboriginal societies, and as, second, the means by which
      that prior occupation is reconciled with the assertion of

      Crown sovereignty over Canadian territory.

      Differences Between Title and Hunting Rights

From this basis the Court went on to hold, at para. 46, that aboriginal rights are identified through the following test:

           ...in order to be an aboriginal right an activity
           must be an element of a practice, custom or
           tradition integral to the distinctive culture of the
           aboriginal group claiming the right.

      What this test, along with the conceptual basis which underlies it, indicates, is that while claims to aboriginal title fall within the conceptual framework of aboriginal rights, aboriginal rights do not exist solely where a claim to aboriginal title has been made out. Where an aboriginal group has shown that a particular practice, custom or tradition taking place on the land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition. The Van der Peet test protects activities which were integral to the distinctive culture of the aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central significance to their distinctive culture sufficient to make out a claim to aboriginal title to the land. Van der Peet establishes that s. 35 recognizes and affirms the rights of those peoples who occupied North America prior to the arrival of the Europeans; that recognition and affirmation is not limited to those circumstances where an aboriginal group's relationship with the land is of a kind sufficient to establish title to the land.

      To understand why aboriginal rights cannot be inexorably linked to aboriginal title it is only necessary to recall that some aboriginal peoples were nomadic, varying the
location of their settlements with the season and changing circumstances. That this was the case does not alter the fact that nomadic peoples survived through reliance on the land prior to contact with Europeans and, further, that many of the practices, customs and traditions of nomadic peoples that took place on the land were integral to their distinctive cultures. The aboriginal rights recognized and affirmed by s. 35(1) should not be understood or defined in a manner which excludes some of those the provision was intended to protect.

 [47]     To the same effect, Delgamuukw confirms that (at para. 139):

      Because aboriginal rights can vary with respect to their
      degree of connection with the land, some aboriginal
      groups may be unable to make out a claim to title, but
      will nevertheless possess aboriginal rights that are
      recognized and affirmed by s. 35(1), including
      site-specific rights to engage in particular activities.
      As I explained in Adams, this may occur in the case of
      nomadic peoples who varied "the location of their
      settlements with the season and changing circumstances"
      (at para. 27). The fact that aboriginal peoples were
      non-sedentary, however (at para. 27)

           does not alter the fact that nomadic peoples
           survived through reliance on the land prior to
           contact with Europeans and, further, that many of
           the practices, customs and traditions of nomadic
           peoples that took place on the land were integral to
           their distinctive cultures.

 [48]     Notwithstanding the trial judge's error in his legal focus, deference is still owed to findings of fact made at trial, even in constitutional cases that involve an examination of historical fact.  In Delgamuukw, Lamer C.J.C.explained that (at paras. 79-80):

      The policy reason underlying this rule is protection of
      "[t]he autonomy and integrity of the trial process"
      (Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 278),
      which recognizes that the trier of fact, who is in direct
      contact with the mass of the evidence, is in the best
      position to make findings of fact, particularly those
      which turn on credibility.  Moreover, Van der Peet
      clarified that deference was owed to findings of fact
      even when the trial judge misapprehended the law which
      was applied to those facts, a problem which can arise in
      quickly evolving areas of law such as the jurisprudence
      surrounding s. 35(1).

      I recently held, in Van der Peet, that these general
      principles apply to cases litigated under s. 35(1). On
      the other hand, while accepting the general principle of
      non-interference, this Court has also identified specific
      situations in which an appeal court can interfere with a
      finding of fact made at trial. For example, appellate
      intervention is warranted "where the courts below have
      misapprehended or overlooked material evidence": see
      Chartier v. Attorney General of Quebec, [1979] 2 S.C.R.
      474, at p. 493. In cases involving the determination of
      aboriginal rights, appellate intervention is also
      warranted by the failure of a trial court to appreciate
      the evidentiary difficulties inherent in adjudicating
      aboriginal claims when, first, applying the rules of
      evidence and, second, interpreting the evidence before
      it.
                                         [Underlining added]

 [49]     As we have just seen (Van der Peet, Adams (para. 26) and Delgamuukw), in any case where there is an assertion of aboriginal rights - be it title or a "lesser" interest - it is essential to identify "the practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with the Europeans" (from para.44 of Van der Peet).

 [50]     In assessing such a claim, the court must take into account the views of the aboriginal people claiming the right:

      Where an aboriginal community can demonstrate that a
      particular practice, custom or tradition is integral to
      its distinctive culture today, and that this practice,
      custom or tradition has continuity with the practices,
      customs and traditions of pre-contact times, that
      community will have demonstrated that the practice,
      custom or tradition is an aboriginal right for the
      purposes of s. 35(1).

                               [Van der Peet, at para. 63]

 [51]     There is an important distinction, though, between aboriginal title and aboriginal rights when it comes to determining the relevant time to consider the establishment of the right.  With respect to the former, the land must have been occupied prior to sovereignty, whereas with respect to other aboriginal rights short of aboriginal title "the time for the identification of aboriginal rights is the time of
 first contact" (para. 142 of Delgamuukw).  Fortuitously, the latter is the test applied by the trial judge when he accepted the province's submission that the appropriate period of contact to determine aboriginal title was 1818, when the Métis first became organized as a distinct society in the Red River Settlement.

 [52]     Since nothing in the end turns on this latter issue, given the findings of fact made by the trial judge, I do not need to deal with it further except to note the
 cautionary comment of the Supreme Court in Van der Peet (atpara. 67):