Goodon Trial Summary

Manitoba Provincial Court Confirms
R. v. Goodon
Métis Hunting Rights
Written and prepared by Jean Teillet & Jason Madden,
January 12, 2009
On October 19, 2004, near Turtle Mountain, Manitoba,
Will Goodon shot and killed a Ringneck duck. The next
day Mr. Goodon informed a Conservation Officer that he
had in his possession a duck that he had harvested under
the authority of his Manitoba Métis Federation Harvester
Card. He was charged with unlawful possession of
wildlife contrary to s. 19 of Manitoba’s Wildlife Act.
The Reasons for Judgment dismissing the charges against Mr. Goodon and confirming his Métis right to
hunt for food were handed down on January 8, 2009. Four years, two months and nineteen days passed
from the time the charges were laid to the date the decision was released. The trial lasted twenty-eight
days over eighteen months from May of 2006 to November of 2007. Eighteen witnesses were called.
The defendant (Mr. Goodon) called seventeen witnesses. The Crown called one witness. Over 500
documents and maps were entered as exhibits totaling over 5,000 pages. The trial judge called the costs
in terms of human resources, time, energy and financial resources “staggering”. Legal counsel for Mr.
Goodon were Jean Teillet and Jason Madden. Five different Crown lawyers appeared at various times
on behalf of the Crown. The defence was supported financially by the Manitoba Métis Federation.
How Métis Rights Trials work
These kinds of trials are divided into four parts. Part One in a Métis hunting trial is about the actual
facts of the hunting – Did Mr. Goodon shoot the duck? Mr. Goodon freely admitted hunting the duck,
not having a licence and that he was hunting for food. This is the short part of the trial.
Part Two is the longest part of the trial. Mr. Goodon had to prove that there was an historic Métis
community, that it continues to exist in some form, that hunting was integral to the historic Métis
community and continues to be significant to the contemporary community, and that he is a member of
the contemporary Métis community. Mr. Goodon was successful in proving all of this part of the trial.
Part Three is about Extinguishment. Here the Crown must prove that if the rights existed at one time,
they have since been extinguished. In this case the Manitoba Crown initially asserted that the Métis
right to hunt in Turtle Mountain had been extinguished by the Manitoba Act. Later they changed their
assertion and claimed that if the Métis community was found to include any part of Manitoba as
established by the Manitoba Act (the postage stamp province that was established in 1870, not the entire
province as we know it today) then their rights were extinguished. The court did not agree and found
that the Manitoba Act had no effect on the hunting rights of the Métis in the area of Turtle Mountain,
which is outside the old postage stamp province.
Part Four is about Justification. No rights are absolute and Métis hunting rights are no exception. The
Crown can limit those rights if it can reasonably justify its actions. The court has set out a few reasons
on which the Crown can limit aboriginal hunting rights – conservation and safety. The Crown did not
seek to justify its legislation and entered no evidence in this regard.
Ringneck Duck
Some Facts about the Goodon Trial
The Result in Goodon – What the Judge Said
The following is a brief summary of the reasons for judgment:
1. The right was characterized as the right to hunt for food in the environs of Turtle
Mountain, which includes Deloraine, Boissevain and Killarney. (para. 18 & 21)
2. As early as 1815, the Métis are described as being distinct from First Nations and
Europeans with their own way of life and culture. (para. 43)
3. The historic Métis community was a regional community in Southern Manitoba. It
extended from Winnipeg south to the US Border, west to the Saskatchewan border
(including Turtle Mountain), and to the northwest it includes the area of Russell.
(para. 48)
4. The Métis were highly mobile and created a large inter-related community that
included numerous settlements in southwestern Manitoba, into Saskatchewan and
including the northern Midwest US. The area was one community because the same
Métis families used this entire territory as their home and lived off the land. (para.
46 & 47)
5. There is a contemporary Métis community in southwest Manitoba that is a
continuation of the historic Métis community. It includes the City of Winnipeg south
to the US border and west to the Saskatchewan border. It also includes Turtle
Mountain and its environs. (para. 75)
6. Hunting was historically integral to Métis culture and continues to be so. (para. 71 &
74)
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7. While©EuroCanadians
had control over their own settlers, they did not have effective
control over the Métis until after 1870 in the postage stamp province. Effective
control in the remainder of southwest Manitoba was not achieved by EuroCanadians
until after 1880. (para. 69f & 69i)
8. The Métis right to hunt was not extinguished in Turtle Mountain. The Crown argued
that if the Métis community included any part of the postage stamp province, then
their harvesting rights were extinguished by the Manitoba Act. The trial judge
disagreed and held that the Manitoba Act has no effect on rights in Turtle Mountain.
(para. 76-78)
9. The Wildlife Act is an unjustifiable infringement of Métis rights because it makes no
accommodation for Métis hunting. The legislation imposes undue hardship and
denies Métis the ability to hunt in their preferred way. (para. 81 & 82)
10. Will Goodon is Métis within the meaning of s. 35(2) of the Constitution Act, 1982
and has a Métis right to hunt for food. (para. 85a)
11. The Wildlife Act is of no force and effect with respect to Mr. Goodon by reason of his
Métis rights under s. 35. (para. 85b)
12. The charges are dismissed. (para. 85c)
Page 2 of 6
The Two Big Issues in Goodon
There were two big issues in this case - determining the extent of the historic Métis
community and extinguishment. The Crown maintained that Powley had to be clarified with
respect to how these issues were to be applied in Manitoba.
The Historic Métis Community
“The Métis community of Western Canada has its own distinctive
identity. As the Métis of this region were a creature of the fur
trade and as they were compelled to be mobile in order to
maintain their collective livelihood, the Métis “community” was
more extensive than, for instance, the Métis community described
at Sault Ste Marie in Powley. The Métis created a large interrelated community that included numerous settlements located in
present-day Manitoba, into Saskatchewan and including the
northern Midwest United States.”
para. 46
“This area was one community as the same people and their
families used this entire territory as their homes, living off the
land, and only periodically settling at a distinct location when it
met their purposes.”
para. 47
“Within the Province of Manitoba this historic rights-bearing
community includes all of the area within the present boundaries
of southern Manitoba from the present day City of Winnipeg and
extending south to the United States and northwest to the
Province of Saskatchewan including the area of present day
Russell, Manitoba. This community also includes the Turtle
Mountain area of southwestern Manitoba …”
para. 48
“I have determined that the rights-bearing community is an area
of southwestern Manitoba that includes the City of Winnipeg
south to the U.S. border and west to the Saskatchewan border.
This area includes the Turtle Mountains and its environs.”
para. 75
Turtle
Mountai n
Map of Manitoba showing the Métis community
recognized in R. v. Goodon (approx. 45,000 sq km)
Mobility - The trial judge agreed with the experts who testified at trial that the Métis were
highly mobile. He used the word “transient” to describe the Métis and noted that they led a
“nomadic life” on the prairies returning to established settlements such as Pembina and Red
River (present day Winnipeg) for marriages, baptisms and to bury their dead. There was
constant interaction between the families in various settlements. The trial judge noted in
particular that the Métis community included such settlements as Pembina, Fort Ellice, Fort
Brandon, Oak Lake, Red River, etc. He agreed with the experts that mobility was a central
feature of Métis culture. The trial judge found that the historic Métis community in
southwestern Manitoba was more extensive than the Métis community described in Powley.
Turtle Mountain - The evidence showed that the Métis used Turtle Mountain extensively
as a wintering site as early as the 1820s. The judge accepted that there had been a Métis
settlement in existence at Turtle Mountain at least in the early 1880s and that it had existed for
some years prior to that. The judge concluded that Turtle Mountain was, throughout much of
the 19th Century, an important part of the large regional Métis community.
Page 3 of 6
Extinguishment
Section 35 of the Constitution Act, 1982 protects “existing aboriginal and treaty rights”.
Existing means unextinguished. Prior to 1982, aboriginal rights could be extinguished in
three ways: (1) by surrender; (2) by constitutional enactment; or (3) by validly enacted
federal legislation. In order to extinguish aboriginal rights by way of the Constitution or
federal legislation, the standard to be met is called the “clear and plain extinguishment” test.
Federal legislation, passed prior to 1982, must have clearly stated that its purpose was to
extinguish aboriginal rights. If the legislation did not clearly and plainly state its intention,
then the courts will not presume that the legislation accomplished the extinguishment.
In Goodon, the Crown argued first that the Manitoba Act, 1870 extinguished the harvesting
rights of the Métis. In fact the Manitoba Act is silent on the issue of harvesting rights. It
speaks only of extinguishing “the Indian Title to the lands in the Province … for the
benefit of the families of the half-breed residents …”. The Supreme Court of Canada has
been very clear that title to land and harvesting rights are separate and distinct from each
other and that extinguishing land title does not necessarily extinguish harvesting rights. Mr.
The defence argued that because the Manitoba Act was silent with respect to harvesting
rights and therefore did not clearly and plainly extinguish them.
The defence also argued that the
Manitoba Act did not apply to Turtle
Mountain. The Manitoba Act only
applied to Manitoba as it was in 1870,
when the Act was passed. Turtle
Mountain was not geographically
situated within the postage stamp
province.
The Crown argued that if part of the
rights-bearing Métis community was
within the postage stamp province, the
rights of the entire community were
extinguished. The trial judge did not
agree. Because he had narrowed the
question as to where the
constitutionally protected hunting
right was situated to Turtle Mountain
and environs, the trial judge held that
the Manitoba Act did not and does not
have any effect on any activities that
occur at Turtle Mountain.
Turtle
Mountain
Manitoba in 1870, the “postage stamp province”
The Crown presented no evidence regarding extinguishment of Métis hunting rights at Turtle
Mountain or its environs. As a result extinguishment was not proven.
Page 4 of 6
Effective Control
The test set out for First Nations in Van der Peet held that the practice, tradition or
custom must be shown as integral to the aboriginal community in the period prior to
“contact” between Aboriginal and European societies. Evidence to prove this may
relate to practices post-contact that demonstrate pre-contact origins. In Powley, a new
time period was articulated for Métis. The Court noted that Métis societies arose after
contact and matured in the period after contact but before control was established by
European law and customs, and articulated a new “pre-control” test.
The Supreme Court of Canada, in Powley, held that the test for Métis practices should
focus on identifying those practices, customs and traditions that are integral to the Métis
community's distinctive existence and relationship to the land.
The unique Métis history is to be accommodated by a post
contact but pre-control test that identifies the time when
Europeans effectively established political and legal control in a
particular area. The focus is on the period after a particular
Métis community arose and before it came under the effective
control of European laws and customs. This “effective control”
test enables the identification of those practices, customs and
traditions that predate the imposition of European laws and
customs on the Métis.
The trial judge in Goodon, noted that the time of “effective
control” may be relatively lengthy. Settlement began in Red
River perhaps as early as 1810 and gradually expanded. Many
events occurred where EuroCanadians attempted to impose
control over the territory primarily inhabited by the Métis. They
were not successful in establishing effective control over the
postage stamp province until 1870. Effective control in the
remainder of what is now southern Manitoba (including Turtle
Mountain) did not take place until around 1880.
The Contemporary Métis Community
The trial judge noted that the Métis community today in
Manitoba is a well-organized and vibrant community. He cited
evidence presented that the governing body of Métis people in
Manitoba, the Manitoba Métis Federation, has a membership of
approximately 40,000, most of which reside in southwestern
Manitoba.
The Métis community has changed since EuroCanadian control
was established in 1870-1880. But the Métis continue to have a
dominant presence in such communities as Russell, St. Lazare,
St. Laurent, St. Eustache, St. François Xavier and Turtle
Mountain. While the Métis community has changed many of its
traditions continue.
“It is clear that although
the Europeans had
control over their
European settlers, their
control over the Métis
was entirely subject to
their acquiescence. In
other words, they had
no effective control …
The evidence therefore
discloses that, although
attempts were made to
control the customs,
practices, and economic
life of the Métis prior to
1870, these attempts
were largely ineffective.”
-para. 69(f) and (i)
“A universal theme of
virtually all the Métis
witnesses was their
continued relationship
with the land and the
importance of hunting in
their lives. … I
conclude that there
remains a contemporary
community in southwest
Manitoba that continues
many of the traditional
practices and customs of
the Métis people.”
-para. 57-58
Page 5 of 6
Pape Salter Teillet
460-220 Cambie Street
Vancouver, BC V6B 2M9
Phone: 604 681-3002
Fax: 604 681-3050
Website: www.pstlaw.ca
JTM Law
546 Euclid Avenue
Toronto, Ont., M6G 2T2
Phone: 416 945-7958
Fax: 416 981-3162
FAQs
Does this mean all Métis in Manitoba have the right to hunt?
The Goodon judgment simply concludes that Will Goodon has
the right to hunt in Turtle Mountain and environs. Having said
that, it is understood that aboriginal rights are collective rights.
Therefore, it is reasonable to interpret the judgment as applying
to the entire Métis community of which Mr. Goodon is a
member – that is the Métis community of southwestern
Manitoba. This would include all Métis living in that area. It is
also reasonable to assume that if the Métis can prove a Métis
community and a right to hunt in southwestern Manitoba, they
could prove it elsewhere in the Province.
What about the existing charges against Métis?
For more on Métis law
generally see Jean Teillet’s
annually updated Métis Law
Summary©, which can be
found online at
www.pstlaw.ca/resources/
The Province of Manitoba has indicated that it will review the
charges. It is reasonable to assume that they will drop the 15
existing charges against Métis harvesters who have MMF
Harvesters Cards.
What happens now?
The Province of Manitoba has indicated that it will not appeal
Goodon and that it intends to negotiate with the MMF with a
view to recognizing MMF Harvesters Cards for the upcoming
fall hunting season and will attempt to revise its legislative
scheme in order to accommodate the Métis right to harvest.
What does this case mean outside of Manitoba?
This document is
not legal advice.
It has been
prepared by Jean
Teillet and Jason
Madden as an
easy-to-read
summary of the
Goodon
Provincial Court
decision.
The full text of
R. v. Goodon will
be available
online (free) at
www.canlii.org
Provincial court trial judgments have no application outside the
Province. However, it will be persuasive in other provinces. It
adds to the growing body of law that is continuing to recognize
and affirm Métis harvesting rights. It also confirms that Métis
communities are large, inter-related, extensive regional entities.
Manitoba is now the second Prairie Province to recognize that
there is a Métis harvesting right in the southern part of the
Province.
For further information on harvesting rights in Manitoba contact:
Manitoba Métis Federation
300-150 Henry Avenue
Winnipeg, Manitoba, Canada, R3B 0J7
Telephone: (204) 586-8474
Fax: (204) 947-1816
Website: www.mmf.mb.ca