CAP constituents have approached me to discuss the lack of progress achieved at the political level to recognize the legal rights and interests of Aboriginal people who live off-reserve. I have explained that the federal government continues to refuse to recognize the legal rights of off-reserve Aboriginal people and that while the federal government claims to recognize the inherent right of self-government at the political level, the Justice Department routinely denies the right exists in defending the Crown. 

In the absence of a defined Constitutional process to finish the work we started in 1983, the courts remain the only vehicle to obtain legal recognition of our rights. In point of fact, Aboriginal people have made some of their biggest gains in the courts as is briefly outlined in the decisions below. I have written this summary to provide our constituents with an overview of some of the most important cases. As you will see in the summary of the Blais case below, the courts, and particularly the lower courts are not always our best ally. 

The Delgamuukw  Case

This landmark decision confirmed that Aboriginal title in British Columbia has not been extinguished and outlined the requirements for Aboriginal people to prove their title. It also established new rules of evidence with respect oral history and tradition. After outlining how an Aboriginal group can go about proving their title and establishing new rules of evidence, the Court ordered a new trial while encouraging the parties return to the negotiating table. The Supreme Court indicated that Aboriginal title is unique in the following aspects: it cannot be transferred to anyone except the Crown, its sources lie in the occupation of the land by Aboriginal peoples prior to British sovereignty and in the content of Aboriginal land law, and it is a communal right. Aboriginal title includes the exclusive right to the use of land for a variety of purposes. These purposes need not be Aboriginal rights in themselves, but they must not be irreconcilable with the Aboriginal group's attachment to the land. 

This limitation, roughly speaking, means Aboriginal title does not include the right to ruin the land. The Court did make it clear that Aboriginal title includes mineral rights. The Court also specified how Aboriginal title must be proved. An Aboriginal group must show that it exclusively occupied the land prior to the assertion of British sovereignty (not necessarily since time immemorial as in Baker Lake), and that their title has not been extinguished. Both physical occupation of the land and the content of Aboriginal land law can be used to prove occupancy. In proving occupation, Aboriginal oral history should be considered on an equal footing with written records. Oral histories have features, which would count against them with respect to both admissibility and weight on a traditional approach to evidence law. However, in order that Aboriginal peoples not face an "impossible burden of proof", the Court ruled that the laws of evidence are to be adapted, on a case by case basis. 

The Court noted that the degree of occupation required will vary with the context - regular use of specific territories for traditional harvesting can be sufficient occupation in some contexts. The Court also suggested that a nomadic group which "varied `the location of their settlements with the season and changing circumstances'" might be unable to establish Aboriginal title. The Court also noted that "shared exclusive possession" is possible, that isolated acts of trespass do not affect title, and that the presence of others with permission is consistent with and indeed supportive of, Aboriginal title. The Court also specified that it was not necessary to show, on top of exclusive occupancy, that use of a particular tract of land was of central significance to the culture of the relevant Aboriginal people. While this is a theoretical requirement for Aboriginal rights (and therefore for Aboriginal title), in the Court's view, exclusive occupancy necessarily implied central significance to the culture. The Court also clarified the tests concerning extinguishment, re-affirming the "clear and plain" standard, and ruling that provincial laws cannot extinguish Aboriginal title, since any legislation which was sufficiently "clear and plain" would be exclusively within federal competence. 

The Blais Case

R. v Blais [1998] M. J. No. 395 (Manitoba Court of Queen's Bench) Blais runs counter to the legal precedents above. In this case, Ernie Blais a Metis, was charged with hunting contrary to provincial wildlife regulations. Mr. Blais argued that he had an Aboriginal right to hunt and also that he was an "Indian" for the purposes of federal responsibility under section 91 (24) of the Constitution Act, 1982 and for the purposes of the 1930 Natural Resources Transfer Act that provided Manitoba with control over resources. The The Trial Court did not buy it.

Specifically, the judge rejects the argument that Metis are Indians for the purposes of Section 91 (24) of the Constitution Act, 1867 and the Natural Resources Transfer Acts. It does so based on: previous narrow decisions of the Supreme Court; the self described distinctiveness of the Metis (maintaining their identity separate from Indians; the different legislative and constitutional treatment flowing from the Manitoba Act, 1870 including the federal and provincial legislative Acts which were put in place to distribute lands to Metis; the express exclusion of Metis from registration under previous Indian Acts (even though those same Acts provide that some Metis may be included), and finally; the judge also suggests that Metis are not included because they never sought to become wards of the federal government (as apparently Indians wanted). Clearly, this latter reason shows a bias if not a racial bias on the presiding judge. Unfortunately, the appeal to this decision by Mr. Blais was recently rejected. (See link below) 

The Powley Case

R. v Powley, [1998 O. J. No. 5310] In contrast to the Manitoba Queen's bench the courts in Ontario appear to be more open to the recognition of Metis hunting rights. The Court accepted the defence that Métis have an Aboriginal right to hunt moose. It also suggested that it would be useful to have registry of Metis. Interestingly, the court identified a workable definition of Métis including: a person of Aboriginal ancestry; Who self-identifies as Métis; and Is accepted by the Métis community as Métis. The court did not define what constitutes a Metis community. 

The court indicated that it was not necessary for Aboriginal people to prove Aboriginal title in order to claim harvesting rights. Citing 17th and 18th century materials depicting the Métis settlement in and around Sault Ste. Marie, the judge recognized that a historic Métis community existed prior to contact (or European control which occurred between 1815-1850). He recognized that the right to hunt was an integral and continuing exercise of their Aboriginal rights. It concluded that the interim enforcement agreement that excluded Métis was an unreasonable and unconstitutional restriction on their section 35 right to hunt. 

Métis under-included within Section 91 (24) 

Section 91 (24) and the Métis On the issue of section 91 (24), it is my view and that of my legal team that the proper approach the courts should take to the issue of whether Métis are included within that term is as follows: a) Pre and post-confederation Indian Acts expressly included persons of mixed blood. Some half-breeds were later expressly excluded, suggesting that without such exclusion, they would be included. the historical materials described by Chartier and Swartz show that Métis were sometimes included with Indians, sometimes with Whites and sometimes with no one. No final conclusion can be drawn from the ordinary usage of the term. The recognition by all governments that Métis were included within section 91 (24) during the Charlottetown process coupled with the Royal Commission's view that Métis should included should be persuasive in court. d) 

However, it may be unnecessary to refer to ordinary usage in that the question should be determined on the basis of the following two points alone: - Half-Breeds/Métis are recognized as having Indian title in the Manitoba Act and the Dominion Lands Act; and - s.35(2) recognizes Métis as an Aboriginal people of Canada. It is ridiculous to recognize that the Métis have Aboriginal title, and yet not be Aboriginal people. Aboriginal title is, if nothing else, is a personal right and there is no way at law in which it can be held by anyone other than an Aboriginal person. The relevance of s.35 (2) is also important. It was my view that when I negotiated the express inclusion of the three Aboriginal peoples (Indian, Inuit and Métis) in section 35(2) that it was co-extensive with the term Indian in section 91 (24). 

In short it is my view and that of other eminent scholars that while their may have been some controversy prior to 1982, the inclusion of s.35 (2) can be seen as resolving the controversy in the highest law of the land. That is, it should not be necessary to resolve this issue on its historical basis alone. It is also interesting to note on this point that the failed Charlottetown amendment provided, "For greater certainty", Métis are included within section 91 (24). This makes it clear that the inclusion of Métis is not a new inclusion but rather an elaboration of the people the current term "Indian" was intended to include. I should note also that it is the view of all provincial governments that Métis are a federal responsibility (Alberta also claims a measure of responsibility).  The precise meaning of the term "Métis" will undoubtedly be a major issue. The judge in Powley outlines a definition which could very well resolve the issue for the purposes of future litigation (see above). 
 

Off-reserve Indians under-included within Section 91 (24)

With respect to off-reserve Indians not living on reserves or otherwise not registered under the Indian Act, it is my view that these people fall within the responsibility of section 91 (24).  It would be my position that these groups of people are under-included and that the Federal government can not arbitrarily limit its responsibility to on-reserve groups only. It will be important to show that the spending on on-reserve Indians should be properly characterized as spending on Aboriginal people as a whole as the government often portrays it to Canadians. 

Once this is accomplished it will be necessary to show that off-reserve and non-registered/ non-treaty Indians and Métis represent a class of Aboriginal people who are "under-included". It will then be necessary to show that the Crowns preference of one group over the other is unjustified discrimination. This was the approach taken in the Casino Rama case where the Ontario Metis and Aboriginal Association lawyers argued that the arbitrary distinction between on and off-reserve groups was wrong and that the proper approach would be to allocate benefits on the basis of need. A needs test would ensure that those who need the most would get them regardless of whether they were resident on-reserve.