Update on Mé-s Legal Issues

Update on Mé,s Legal Issues For: Presenta,on to Mé,s Na,onal Council Annual Assembly June 6, 2015 – Calgary, AB By: Jason Madden, Partner Pape Salter Teillet LLP www.pstlaw.ca The Ongoing “Chess Game” … 2 R. v. Van der Peet, [1996] 2 S.C.R. 507 [272] These arrangements [trea,es] bear tes,mony to the acceptance by the colonizers of the principle that the aboriginal peoples who occupied what is now Canada were regarded as possessing the aboriginal right to live off their lands and the resources found in their forests and streams to the extent they had tradi,onally done so. The fundamental understanding ‑‑ the Grundnorm of se[lement in Canada ‑‑ was that the aboriginal people could only be deprived of the sustenance they tradi,onally drew from the land and adjacent waters by solemn treaty with the Crown, on terms that would ensure to them and to their successors a replacement for the livelihood that their lands, forests and streams had since ancestral ,mes provided them. 3 The “Young Na,on” in 1867 1867
4 The “Old Northwest” The Old
North West
5 R. v. Powley, [2003] 2 S.C.R. 207 [21] The trial judge found that a dis*nc*ve Mé*s community emerged in the Upper Great Lakes region in the mid-­‐17th century, and peaked around 1850. We find no reviewable error in the trial judge's findings on this ma[er, which were confirmed by the Court of Appeal. … [23] Here, we find no basis for overturning the trial judge's finding of a historic Mé,s community at Sault Ste. Marie. This finding is supported by the record and must be upheld. … [28] The trial judge's finding of a contemporary Mé,s community in and around Sault Ste. Marie is supported by the evidence and must be upheld. 6 Manitoba Mé,s Federa,on v. Canada, [2013] 1 S.C.R. 623 [1] … Leg unse[led was whether the new na,on would be expanded to include the vast territories to the west, stretching from modern Manitoba to Bri,sh Columbia. The Canadian government, led by Prime Minister John A. Macdonald, embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to se[lement. [2] This meant dealing with the indigenous peoples who were living in the western territories. On the prairies, these consisted mainly of two groups -­‐-­‐ the First Na*ons, and the … Mé*s. 7 Manitoba Mé,s Federa,on v. Canada, [2013] 1 S.C.R. 623 [3] The government policy regarding the First Na,ons was to enter into trea,es with the various bands, whereby they agreed to se[lement of their lands in exchange for reserva,ons of land and other promises. [4] The government policy with respect to the Mé*s popula*on … was less clear. 8 Cunningham v. Alberta, [2011] 2 S.C.R. 670 [7] The Crown did not apply to the Mé*s its policy of trea*ng with the Indians and establishing reserva*ons and other benefits in exchange for lands. … Mé,s communi,es were not given a collec,ve reserva,on or land base; they did not enjoy the protec,ons of the Indian Act or any equivalent. Although widely recognized as a culturally-­‐dis*nct Aboriginal people living in culturally-­‐dis*nct communi*es, the law remained blind to the unique history of the Mé*s and their unique needs. 9 10 Canada’s Claims Processes “Specific claims” deal with grievances over Canada’s failure to discharge specific legal obliga,ons owing to Aboriginal groups flowing from trea,es, agreements or legisla,on. “Comprehensive claims” arise in areas of Canada where Aboriginal land rights have not been dealt with by past trea,es or through other legal means. “Special Claims” are those accepted by Canada for nego,a,on that do not fit squarely under the comprehensive land claim policy but were accepted as a ‘special claim’ or ‘claim’ of a ‘third kind’ under the policy.” 11 12 Le[ers from Federal Minister of Jus,ce (1981) “Please find enclosed the Government’s response to your land claim submission, as prepared by our legal advisors. You will note it is their considered opinion that the claim as submi[ed does not support a valid claim in law nor would it jus,fy the grant of further funds to research the issue further.” … 13 Sec,on 35 of the Cons1tu1on Act, 1982 Cunningham v. Alberta, [2011] 2 S.C.R. 670 [8] Governments slowly awoke to this legal lacuna. … The landscape shiWed drama*cally in 1982, with the passage of the Cons%tu%on Act, 1982. … Sec,on 35 of the Cons1tu1on Act, 1982 entrenched exis,ng Aboriginal and treaty rights and recognized three Aboriginal groups — Indians, Inuit, and Mé,s. For the first *me, the Mé*s were acknowledged as a dis*nct rights-­‐holding group. [70] The history of the Mé,s is one of struggle for recogni,on of their unique iden,ty as the mixed race descendants of Europeans and Indians. Caught between two larger iden,,es and cultures, the Mé,s have struggled for more than two centuries for recogni,on of their own unique iden,ty, culture and governance. The cons*tu*onal amendments of 1982 … signal that the *me has finally come for recogni*on of the Mé*s as a unique and dis*nct people. 15 The Cons,tu,onal Protec,on of Rights The Cons1tu1on Act, 1982: 35. (1) The exis,ng aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Mé,s peoples of Canada. 16 R. v. Van der Peet, [1996] 2 S.C.R. 507 [230] ... Sec,on 35(1) recognizes not only prior aboriginal occupa,on, but also a prior legal regime giving rise to aboriginal rights which persist, absent ex,nguishment. And it seeks not only to reconcile these claims with European se[lement and sovereignty but also to reconcile them in a way that provides the basis for a just and las,ng se[lement of aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with aboriginal peoples. 17 Tsilhqot’in Na,on v. BC, 2014 SCC 44 [118] Sec,on 35 of the Cons1tu1on Act, 1982 represents the ‘culmina,on of a long and difficult struggle in both the poli,cal forum and the courts for the cons,tu,onal recogni,on of [A]boriginal rights’ (Sparrow, at p. 1105). It protects Aboriginal rights against provincial and federal legisla,ve power and provides a framework to facilitate nego,a,ons and reconcilia,on of Aboriginal interests with those of the broader public. (Tsilhqot’in Na1on v. BC, 2014 SCC 44) 18 Sec,on 35 and the Mé,s R. v. Powley, [2003] 2 S.C.R. 207 [10] The term "Mé,s" in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to dis,nc,ve peoples who, in addi,on to their mixed ancestry, developed their own customs, way of life, and recognizable group iden,ty separate from their Indian or Inuit and European forebears. Mé,s communi,es evolved and flourished prior to the entrenchment of European control, when the influence of European se[lers and poli,cal ins,tu,ons became pre-­‐
eminent. 20 R. v. Powley, [2003] 2 S.C.R. 207 [17] … The inclusion of the Mé,s in s. 35 represents Canada's commitment to recognize and value the dis,nc,ve Mé,s cultures, which grew up in areas not yet open to coloniza*on, and which the framers of the Cons1tu1on Act, 1982 recognized can only survive if the Mé,s are protected along with other aboriginal communi,es. 21 Exis,ng Mé,s Rights and Outstanding Mé,s Claims 22 Outstanding Mé,s Claims Aboriginal Title The Legal Test for Aboriginal Title 1. 
Sufficiency of Occupa*on – There must be evidence that the group had “a strong presence on or over the land claimed” that “show[s] that it historically acted in a way that would communicate to third par,es that it held the land for its own purposes.” (para. 38) 2. 
Con*nuity of Occupa*on – In situa,ons where present occupa,on is relied upon for ,tle, the modern presence must be rooted in pre-­‐sovereignty ,mes. An “unbroken chain” of evidence is not required. (para. 46) 3. 
Exclusivity – An “inten,on and capacity to control the land” must be demonstrated by considering the characteris,cs of the land, the claimant group, other groups, etc.. Historical exclusion of others, the gran,ng of permissions or the of any challenges will be considered. (para. 47) • 
These criteria “are not ends in the themselves, but inquiries that shed light on whether Aboriginal ,tle is established.” (para. 32) 25 •  In the dark green areas of the map, the Supreme Court of Canada upheld the Trial Judge’s findings of fact that the Tsilhqot’in had sufficient, con1nuous and exclusive use in this area and issued a declara,on of Aboriginal ,tle. •  This Aboriginal ,tle declara,on covers an area that is approximately 4,380 kms² in size, excluding privately owned or submerged lands. This represents approximately 50% of the claimed area in the li,ga,on and 5% of the overall claimed tradi,onal territory of the Tsilhqot’in. 26 Tsilhqot’in Aboriginal Title Lands
(4,380 kms²)
Prince Edward Island
(5,620 kms²)
27 Aboriginal Title: What It Includes • With the recogni,on of Aboriginal ,tle, the Aboriginal ,tle-­‐holder holds the “beneficial interest” in those lands (para. 70) and that interest confers the following rights in rela*on to those lands (para. 73): •  The right to decide how the land will be used; •  The right of enjoyment and occupa,on of the land; •  The right to possess the land; •  The right to the economic benefits of the land; and •  The right to pro-­‐ac,vely use and manage the land. 28 Breaches of the Honour of the Crown: “Broken Promises” and “Unfulfilled Solemn Commitments” The MMF Case 31 32 33 Le[ers from Federal Minister of Jus,ce (1981) “Please find enclosed the Government’s response to your land claim submission, as prepared by our legal advisors. You will note it is their considered opinion that the claim as submi[ed does not support a valid claim in law nor would it jus,fy the grant of further funds to research the issue further.” … 34 The Promise of Sec,on 31 [5] This appeal is about obliga,ons to the Mé,s people enshrined in the Manitoba Act, a cons,tu,onal document. These promises represent the terms under which the Mé,s people agreed to surrender their claims to govern themselves and their territory, and become part of the new na,on of Canada. These promises were directed at enabling the Mé,s people and their descendants to obtain a las,ng place in the new province. Sadly, the expecta,ons of the Mé,s were not fulfilled, and they sca[ered in the face of the se[lement that marked the ensuing decades. .
35 The Declara,on [154] … We conclude that the appellants are en,tled to the following declara,on: That the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown. 36 The “Unfinished Business” with the Mé,s [140] What is at issue is a cons,tu,onal grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconcilia,on and cons,tu,onal harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing riW in the na*onal fabric that s. 31 was adopted to cure remains unremedied. The unfinished business of reconcilia*on of the Mé*s people with Canadian sovereignty is a ma[er of na*onal and cons*tu*onal import. The courts are the guardians of the Cons,tu,on and, as in Ravndahl and Kingstreet, cannot be barred by mere statutes from issuing a declara,on on a fundamental cons,tu,onal ma[er. The principles of legality, cons,tu,onality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217. 37 The Legal Framework in the MMF Case: A Pathway for other Mé,s Claims The 1870 Order “… that, upon the transference of the territories in ques,on to the Canadian Government, the claims of the Indian tribes to compensa,on for lands required for purposes of se[lement will be considered and se[led in conformity with the equitable principles which have uniformly governed the Bri,sh Crown in its dealings with the aborigines.” 40 Dominion Lands Act, 1879 “To sa,sfy any claims exis,ng in connec,on with the ex,nguishment of the Indian ,tle, preferred by half-­‐breeds resident in the North-­‐West Territories outside of the limits of Manitoba, on the figeenth day of July, one thousand eight hundred and seventy, by gran,ng land to such persons, to such extent and on such terms and condi,ons as may be deemed expedient.” 41 The Mé,s Scrip System •  In 1879, the Dominion Lands Act, s. 125(e) was adopted to sa,sfy “the ex,nguishment of the Indian ,tle, preferred to the Halxreeds.” In 1899, the Dominion Lands Act, s. 90(f), was amended to provide for gran,ng “lands in sa,sfac,on of claims of half-­‐breeds arising out of the ex,nguishment of the Indian ,tle.” •  In introducing the amendments, Prime Minister Laurier and Clifford Sigon, Minister of the Interior, made the following statements in the House of Commons: “We determined at the outset, when we acquired the territory of the Hudson Bay Company, that we would treat the half-­‐breeds as we would the Indians – that is, as first occupants of the soil. It has been the policy of the Bri,sh Government from ,me immemorial not to take a possession of any lands without having in some way se[led with the first occupants and giving them compensa,on…” “… the Government of the Dominion, in taking possession of the territory, was bound to recognize [the Mé*s] pe**on and ex*nguish his *tle …” 42 Treaty 8 and the Mé,s •  In 1879, An Order-­‐in-­‐Council for Treaty 8 that was subsequently passed pursuant to the 1899 amendment read: Ager careful considera,on the Minister has come to the conclusion that this claim of the Half-­‐Breeds is well-­‐founded and should be admi[ed. As already set forth he is of the opinion (sic) that Indian and Half-­‐Breed rights are co-­‐existent and should be properly ex*nguished concurrently. When half-­‐breed rights are not so ex,nguished, they must, he considered, be held to exist ager the ex,nguishment of Indian ,tle and up to such ,me as ac,on is taken for their ex,nguishment. 43 R. v. Blais, [2003] 2 S.C.R. 236 [34] …. While the history of scrip specula,on and devalua,on is a sorry chapter in our na*on’s history, this does not change the fact that scrip was based on fundamentally different assump,ons about the nature and origins of the government’s rela,onship with scrip recipients than the assump,ons underlying trea,es with Indians. 44 Treaty #3 Halxreed Adhesion “That the said Half-­‐breeds, keeping and observing on their part the terms and condi,ons of the said treaty shall receive compensa,on in the way of reserves of land, payments, annui,es and presents, in manner similar to that set forth in the several respects for the Indians in the said treaty; it being understood, however, that any sum expended annually by Her Majesty in the purchase of ammuni,on and twine for nets for the use of the said Half-­‐breeds shall not be taken out of the figeen hundred dollars set apart by the treaty for the purchase annually of those ar,cles for the Indians, but shall be in addi,on thereto, and shall be a pro rata amount in the propor,on of the number of Half-­‐breeds par,es hereto to the number of Indians embraced in the treaty; and it being further understood that the said Half-­‐breeds shall be en,tled to all the benefits of the said treaty as from the date thereof, as regards payments and annui,es, in the same manner as if they had been present and had become par,es to the same at the ,me of the making thereof.” 45 Treaty Promise to
for Métis Reserve
47 Indian Commissioner J.A. McKenna, 1887 “The Halxreed Claims Commissions of 1885 and the Department of the Interior recognized the Halxreeds of the ceded por,on of Keewa,n as North West Halxreeds. There was therefore no course open for me but to do likewise. The consequence is that Halxreeds living on the Keewa,n side of the English River are recognized as having territorial rights and get scrip, scrip which they may locate in Manitoba or any part of the North West Territories, while the Halxreeds on the Ontario side who naturally comes and makes claim has to be told that he has no territorial rights. We must take care to avoid the perpetua,on of this.” 48 Other Developments Northwest Territories • Mé,s are included in the modern day trea,es in the NWT (i.e., Gwich’in and Sahtu agreements) and are par,es in ongoing Deh Cho nego,a,ons. • The Northwest Territories Mé,s Na,on (NWTMN) has reached an AIP with Canada to address Mé,s claims and rights in the south slave area. The map to the right shows the area covered by interim measures. • The current AIP provides 25,000 square kilometers of land, $66M (2009 amounts), a percentage of resources royal,es for Mackenzie Valley, harves,ng rights and more. •  The Akaitcho Dene have sued Canada for nego,a,ng and reaching an AIP with NWTMN. 50 Northwest Territories • In Enge v. Mandeville, [2013] 4 C.N.L.R. 50 (N.W.T. S.C.), the NWT Supreme Court held the GNWT breached the duty to consult owing to the Mé,s north of Slave Lake in rela,on to caribou closures. • While the case does not recognize rights, it does . recognize there was sufficient evidence for the Crown’s consulta,on duty, based on credible claim, to be triggered. • The North Slave Mé,s con,nue to push to have their claim accepted for land claim nego,a,ons. 51 Mé,s Se[lements • There con,nues to be implica,ons and effects from the Cunningham case for the Mé,s Se[lement, including, court cases (i.e., Gauthier v. Alberta). . • The issue of individuals being able to ‘de-­‐register’ from the Indian Act con,nues to emerge. 52 Daniels v. Canada, 2014 FCA 101 •  In April 2014, the Federal Court of Appeal upheld a lower court decision that declared the federal government had cons,tu,onal responsibility for the Mé,s. •  Specifically, the appeal court declared “that the Mé,s are included as "Indians" within the meaning of sec,on 91(24) of the Cons1tu1on Act, 1867” (Daniels v. Canada, 2014 FCA 101, para. 159). This head of power grants the federal government “exclusive Legisla,ve Authority” for “Indians, and Lands reserved for the Indians”. •  On November 20, 2014, the Supreme Court of Canada granted leave to appeal in the Daniels case. Hearing will be in Fall of 2015. 53 Daniels v. Canada, 2014 FCA 101 [72] Finally, the respondents' claim extended beyond a claim to programs and services available under the federal spending power. The claim put in issue, among other things, the failure of the federal government to nego*ate or enter trea*es with respect to unex*nguished Aboriginal rights, or agreements with respect to other Aboriginal ma[ers or interests analogous to those trea*es and agreements which the federal government has nego*ated and/or entered into with status Indians (Fresh as Amended Statement of Claim, paragraph 26(d)). Related to this aspect of the claim is the evidence, referenced above, that in the absence of higher court authority on the division of federal-­‐provincial liability, the federal government was not prepared to nego,ate Mé,s claims as recommended by the Royal Commission on Aboriginal Peoples. [73] For these reasons, the Judge did not issue a declara,on that lacked prac,cal u,lity. 54 Report of the United Na,ons Special Rapporteur on the Rights of Indigenous Peoples in Canada, 2014 [68] … [T]he Government [Canada] does not appear to have a coherent process or policy in place to address the land and compensa*on claims of the Mé*s people. … Canada should take ac*ve measures to develop a procedure for addressing outstanding Mé*s land claims, to avoid having to li,gate cases individually, and enter into nego,a,ons with Mé,s representa,ves to reach agreements towards this end. 55 Eyford Report -­‐ Recommenda,ons (April 2015) 1.  Canada should develop a reconcilia,on process to support the exercise of Mé,s sec,on 35(1) rights and to reconcile their interests. 2.  Canada should establish a framework for nego,a,ons with the Manitoba Mé,s Federa,on to respond to the Supreme Court of Canada’s decision in Manitoba Mé,s Federa,on v. Canada, 2013 SCC 14. 56 Appointment of Special Representa,ve (June 2015) •  On June 4, 2015, Minister Valcourt appointed a Ministerial Special Representa,ve (Tom Isaac) to look at: (1) Mé,s s. 35 rights, and, (2) the MMF Claim. •  Mr. Isaac will be mee,ng with MNC and Governing Members over next few months and will prepare a report with recommenda,ons for December 18, 2015. 57 What Does This All Lead To? Reconcilia,on with the Mé,s The Promise of Sec,on 35 and Exis,ng Mé,s Aboriginal Rights Outstanding Mé,s Claims (i.e., Breaches of Honour of Crown) Clarity on Jurisdic,on for the Mé,s Nego,a,on Processes to Address Mé,s Claims “Just and Las,ng Se[lements” 59 Harves,ng Rights 61
CONFIDENTIAL 62 63 R. v. Hirsekorn, 2010 ABPC 385 [115] The evidence has shown that an historical Mé,s community existed in the region of what is present day Edmonton and district. This group of North Saskatchewan Mé*s included the se[lements of Fort Edmonton, St. Albert, Lac St. Anne, Victoria, Lac La Biche, and Rocky Mountain House. The Mé,s people in this region had a dis,nc,ve collec,ve iden,ty, lived together in the same geographical area and shared a common way of life. 64 65 R. v. Hirsekorn, 2013 ABCA 242 [63] I conclude that the historical rights bearing communi*es of the plains Mé*s are best considered as regional in nature, as opposed to se[lement-­‐based. [98] Having reviewed the evidence and fact findings in this case with this test and these indicia in mind, I conclude that it falls short of mee,ng this lower threshold to establish a right to hunt in the environs of the Cypress Hills. 66 67 The East Coast and Quebec •  There is now over 14 cases that conclude no historical Mé,s communi,es emerged in the East Coast. Cases like, R. v. Vautour, 2010 NBPC 39, con,nue to affirm that there was no emergence of dis,nct Mé,s groups in this region prior to coloniza,on. •  The “Labrador Mé,s” have officially changed their name to NunatuKavut. They assert they are a southern Inuit community. They are now advancing their rights claims on that basis (e.g., Nunatukavut Community Council Inc. v. Newfoundland and Nalcor Energy, 2011 NLTD 44), which is not consistent with who are “Mé,s” for the purposes of Powley and sec,on 35 rights. •  Also, a recent case pursued in eastern Quebec (R. v. Corneau) held that no dis,nct Mé,s community emerged in that region of the province. 68