‘Nomadic nature’ of Métis recognized by Saskatchewan court

By Terry Davidson

Law360 Canada (June 14, 2022, 9:16 AM EDT) -- A recent ruling by Saskatchewan’s Appeal Court entitles Métis in the province to identify themselves as a “historic” and “mobile” Indigenous people, says a lawyer acting for men given a new trial for allegedly hunting and fishing outside designated land.

The May 31 decision by the Court of Appeal for Saskatchewan in R v. Boyer, 2022 SKCA 62, backed the Métis men’s claim that they had a “broad territorial right” to be hunting and fishing in the area they were due to “the nomadic nature of the Métis peoples.”

The Appeal Court also found that the issue could not be resolved by using prosecutors’ approach to narrowing the allowing of hunting and fishing to a specific site — in this case, the “historic ‘Métis community of Northwest Saskatchewan,’” or the HMCONWS. 

In November 2012, Oliver Poitras was charged with illegally hunting for food near Sundance Fireguard Road, around 37 kilometres south of Meadow Lake.

In November 2013, Billy Myette was charged with hunting for food near Rush Lake Fireguard Road, which is around one kilometre west of the southern end of Green Lake.

Around four months later, in March 2014, Warren Boyer was charged with illegally fishing for food on Chitek Lake, around 60 kms southeast of Meadow Lake.

It was agreed by both sides that the three had been “harvesting” just outside the boundaries of the HMCONWS, which had been deemed historic Métis territory in R v. Laviolette, 2005 SKPC 70.

According to the appeal decision, the HMCONWS is a “triangle of fixed communities” in Saskatchewan’s northwest, enclosed by Green Lake, Ile a la Crosse and Alberta’s Lac La Biche. The southernmost end of the HMCONWS is around 300 kilometres north of Saskatoon.

At trial, Myette, Boyer and Poitras argued they had a protected Aboriginal right to hunt and fish for food as laid out in s. 35(1) of the Constitution Act, 1982, which affirms the rights of Aboriginal people in Canada, and that the HMCONWS “encompasses considerably more land than what Laviolette describes.”

Myette, Boyer and Poitras argued that when European control was first exerted over the territory that is now Saskatchewan, the Métis were a “migratory people” who hunted and fished whenever they needed to and wherever they happened to be at the time — a right that continues today, they maintain.

But the Crown, pointing to the Supreme Court of Canada ruling in R. v. Powley, 2003 SCC 43, argued that an Aboriginal rights claim under s. 35 could only be made on a site-specific basis and not on a “large geographical or province-wide” scale.

The trial judge found the location where Myette was hunting was “indistinguishable” in what constitutes the HMCONWS and, as a result, acquitted him.

But the trial judge, while acknowledging their Aboriginal rights, convicted Boyer and Poitras after accepting the Crown’s Powley argument and finding the two men had been fishing and hunting (respectively) outside the boundaries of the HMCONWS.  

Boyer and Poitras appealed to the Court of Queen’s Bench, but their case was dismissed.

But Appeal Court Justice Georgina Jackson, with Justices Peter Whitmore and Jeffery Kalmakoff standing in agreement, ordered a new trial for Boyer and Poitras, finding that their claim of being part of a nomadic people could not be resolved “by narrowing it to the actual sites where harvesting had occurred.”

“The fundamental basis of my reasoning is that I do not interpret Powley, and the related jurisprudence, as precluding Mr. Boyer and Mr. Poitras from attempting to prove an Aboriginal harvesting claim that would encompass a large tract of the province or indeed the whole of it as the basis of a defence to the charges against them,” wrote Justice Jackson. “This Court, however, is not in a position to make the findings of fact necessary to determine the validity of such a claim, which means a new trial must be ordered.”

Kathy Hodgson-Smith acted for two of the defendants

Kathy Hodgson-Smith acted for two of the defendants

Kathy Hodgson-Smith, one of the lawyers acting for Boyer and Poitras, said the “the Metis nation need not redefine itself to fit court jurisdictions or provincial boundaries.”

“[T]he Métis in Saskatchewan are now entitled to identify themselves as a historic, mobile, Indigenous community, and they are entitled to claim that territory, which by evidence can be proven to have been historically relevant prior to the date of effective control,” Hodgson-Smith told The Lawyer’s Daily. “So, from a reconciliation point of view, I think that will have ramifications beyond hunting and fishing. I think it goes to the duty to consult. I think it goes to the right of the community to negotiate on its own terms from its own sense of identity. It was the first time the Court of Appeal had ever looked at this issue. It had always been dealt with in lower courts.”  

Hodgson-Smith said the Appeal Court’s ruling “laid out a principled framework and an approach and set out the relevant legal issues into how this issue can be dealt with more broadly.”

“The victory at the Court of Appeal was that the court … said there is nothing in Supreme Court of Canada jurisprudence that suggests that the Métis are not entitled to bring evidence of their historic community, however large, and that the approach the Crown had been taking was far too narrow and restrictive. Going forward, we still have a huge task because now we’re back at the beginning. But at least we’re entitled to bring the evidentiary base, which we feel needs to be before the court.”

Crown James Fyfe declined to comment, given the case is headed for a new trial.

Lawyer Audrey Maynard, who acted for interveners the Métis National Council and the Manitoba Métis Federation Inc., spoke of the nomadic history of Canada’s Metis.

“They emerged based on the fur trade, where people were travelling miles and miles across what is now three provinces, sometimes five, to go into the interior to trade furs and then coming back down through the river system and sort of hunting and fishing along the way,” said Maynard, who spoke of the significance of the ruling.

“I think the significance of this Court of Appeal decision … is that for the first time the Court of Appeal of Saskatchewan was hearing a Métis claim, but also [it was] the first opportunity to address this tricky issue of how big is the territory that you can address when you’re a Métis person making a rights claim. And to try and stop this trend where the government was trying to force Métis peoples to establish their rights kind of village by village and lake by lake.”

If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.

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