The Relevant Time

20. Application of Principles. The principles of aboriginal persistence, multi-nationality and inter-societal justice may be applied to delineate the relevant time from when continuous Metis practices must have been exercised to qualify for s. 35(1) protection in this case.

21. The principles of aboriginal persistence and multi-nationality adjust the constitutional framework flowing from Constitution Act, 1982, s. 35 to the policy to promote the continuance of distinct aboriginal societies by reserving to those societies reasonable control over the continuous practices, customs and traditions which are central and defining elements of their cultures.

22. In the context of status Indian communities, the Van der Peet Court modified the constitutional framework by attenuating majoritarian power, exercised through the government or legislature, to regulate those continuous practices, customs or traditions which are integral to the Indian societies in the period prior to European contact.

23. Test. In the context of the Metis, promoting the continuance of distinct Metis communities should be done by attenuating majoritarian power to regulate those continuous practices, customs or traditions which are integral to Metis societies when the Crown assumed effective governmental (and fiduciary) responsibility for the Metis people. This requires substantial settler presence and shared governmental institutions. In this case, these conditions would not have occurred until the formation of Ontario in 1867.

24. Intervenor does not disagree with the Respondent (Factum, para. 69) that promoting the continuance of distinctive Metis communities may be done by attenuating govemmental power to regulate those continuous practices, customs or traditions which are integral to Metis societies established before effective control over Metis societies was imposed by colonizers.

25. Advantaes. Intervenor submits that promoting the continuance of distinctive Metis communities may be achieved better by attenuating the majority's power to regulate those continuous practices, customs or traditions which are integral to Metis societies established at the time when the Crown assumed effective governmental (and fiduciary) responsibility for the Metis people. The advantage is that this solution couples effective control with duty, rather than with sheer force of numbers.

26. There are two further advantages:

(a) Respondent applies the 'effective control test' by reliance on the arrival of a significant number of European settlers into Metis territories (Respondent's Factum, paras. 66, 68). This legitimizes crude force, which is unprincipled. Application of  Intervenor's test is principled because it couples settler presence to fiduciary duties flowing from shared governmental institutions.

(b) Respondent (Factum, para. 64) treats this matter as requiring re-examination of the Van der Peet test because it "makes no sense when applied to the Metis." Intervenor suggests that application of the underlying constitutional principles generates separate tests for status Indians and Metis, creating a richer, more coherent and elegant doctrine.