On February 10, 2015, the Superior Court of Québec (the “Court”), under the pen of the Honourable J. Roger Banford, J.C.S., handed down a judgment on the judicial procedures that have prevailed these last fifteen years when it comes to claiming the constitutional protection afforded to the Métis under section 35 of the Constitution Act, 1982 (Schedule B to the Canada Act 1982 (U.K.), 1982, c 11) (the “Constitution Act”). The Court concluded that the respondents failed to demonstrate the existence of the ancestral right claimed that would have entitled them to the protection afforded to Aboriginal peoples, including the Métis, under section 35 of the Constitution Act.

On March 11, 2015, the Respondent appealed this decision before the Court of Appeal of Québec in the district of Québec City.

Context

In the judicial district of Chicoutimi and its surrounding area, many individuals occupy sites on public land without any right of ownership, lease or permit of occupation. On January 14, 2000, the Attorney General of Québec (the “Attorney General”) had a petition to dispossess served on respondent Ghislain Corneau (the “Respondent”) under section 54 of the Act respecting the lands in the public domain (now known as the Act respecting the Lands in the Domain of the State (CQLR c T-8.1)) (the “Act”).

Section 54 of the Act reads as follows:

No person may erect or maintain a building, installations or works on any land except with authorization of the Minister having authority over that land. The authorization is not required for the exercise of a right, the performance of a duty under the law or so far as prescribed by regulation of the Government. 

The Attorney General accused the Respondent of illegally occupying land in the domain of the State, more specifically in the Township of Harvey, judicial district of Chicoutimi, and asked the Court to order him to abandon the land and restore the premises to their former condition.

The Respondent filed a contestation on December 15, 2000, arguing that his situation was lawful. He alleged that section 54 of the Act actually allows him to occupy the premises contemplated by the province’s petition without ministerial authorization, owing to the ancestral rights that the Constitution Act confers on Montagnais Aboriginals.

In his defense and counterclaim dated March 8, 2006, the Respondent, as a member of the Métis community of Domaine-du-Roy and Seigneurie de Mingan (the “CMDRSM”), argued instead that because of his mixed Amerindian and European ancestry, he considered himself to be a Métis descended from one of the sixteen (16) Métis families that founded Domaine-du-Roy and Seigneurie de Mingan, namely Antoine Lavaltrie, of European descent, and his Aboriginal spouse Nipissingne. The Respondent alleged that he had been a member of the CMDRSM since April 23, 2005. The CMDRSM is a non-profit corporation created on January 4, 2005 that has its head office in Saguenay and whose mission is to promote the collective interests of the Métis who are its members. The CMDRSM and its members claim to have ancestral rights under section 35(1) of the Constitution Act on what they describe as: [TRANSLATION] a territory more vast than the region of Saguenay-Lac-Saint-Jean-Cote-Nord, known in the 17th Century as “Domaine du Roy” and “Seigneurie de Mingan”. The Respondent alleged that this territory was the traditional hunting, fishing and gathering grounds of his Métis ancestors.

The Respondent asked the Court to find that he, as a Métis member of the CMDRSM, has ancestral rights to hunt, trap, gather and fish for food on the ancestral territory of the CMDRSM described above. The Respondent also asked the Court to declare that he, as a Métis member of the CMDRSM, has the ancillary right to erect and maintain shelters on that territory, including on the site contemplated by the province’s petition, for the purposes of exercising his ancestral rights to hunt, trap, gather and fish for food that are protected under section 35(1) of the Constitution Act.

The Court allowed the CMRDSM to participate in the dispute by means of conservatory intervention. 

During that same period, the Attorney General filed several petitions to dispossess other respondents in the judicial district of Chicoutimi; a ruling was later issued May 1, 2009 ordering the joinder of seventeen of these cases so that they could be heard together. Of these cases, fourteen were being contested by means of a consolidated defence pursuant to which the respondents each claimed that they had Aboriginal rights, as Métis, under section 35 of the Constitution Act.

For the sake of brevity, the fourteen respondents in the case over which the Court ruled in its judgment are collectively referred to as the “Respondents”.

The Powley test – proof of the existence of an historic Métis community on the claimed territory

To be declared Métis and thus qualify for the ancestral rights to hunt, trap, gather and fish for food on the ancestral territory of the CMDRSM, Respondents needed to demonstrate, among the other criteria established in the Supreme Court of Canada’s Powley,[1]that an historic Métis community exists on the territory in respect of which ancestral rights are being claimed. Based on the balance of probabilities, the Respondents had to present sufficiently convincing evidence to the Court of the existence of an identifiable, distinct and homogeneous Métis community using demographic and territorial data, evidence of a group that shares customs, traditions and a collective identity.

Respondents relied on research that had been accumulated by a regional historian over a period of more than 30 years, some 2000 documents gathered by several regional State historians, as well as thousands of pages of primary sources put together by other historians. Nothing, however, in any of this information revealed objective evidence that could be used to demonstrate the existence of a historic Métis community on the territory in respect of which ancestral rights were being claimed, or any sign whatsoever of a social structure different from that of the first inhabitants and the European descendants that followed.

The evidence failed to turn up any relevant data that would allow the Respondents to be considered members of a distinct Métis community, such as meetings or gatherings of these Métis individuals for any purpose whatsoever that would be specific to their community. Instead, what the evidence shows is that several families underwent various intermingling processes, each following their own separate course, but these processes involved only members of the same family instead of members of a community. And yet, as the Powley test suggests, traditional practices and customs that are at the very core of ancestral rights are, by definition, transmitted from one generation to the next and must have been exercised for a sufficient length of time. It is not enough to demonstrate significant interbreeding between the population’s Aboriginal and European members to establish the presence of a Métis community.

The legal rule that the Supreme Court of Canada developed in Powley is clear. It is crucial that the criteria for identifying an historic Métis community be respected in order to preserve the objectives sought by section 35 of the Constitution Act. Where there is no such compliance, the Court cannot recognize any ancestral rights. The Court concluded that the evidence presented did not point to the presence of an historic, identifiable and distinct Métis people or community.

Other criteria of the Powley test

  • Territory

The Supreme Court of Canada does not specifically define the notion of territory in Powley, as that issue was not then in dispute. In the Superior Court case, the evidence situates the historic community in the region of the current municipalities of Saguenay (including Saint-Fulgence and Shipshaw), Roberval and Escoumins; therefore the camps contemplated by the proceedings could be connected to this territory.

  • Existence of a contemporary community

The next step of the Powley test is to identify a contemporary community that holds the ancestral right claimed. Respondents were required to show that a Métis group continues to this day to perpetuate the practices of the historic Métis community. This contemporary Métis community must be connected to the claimed territory and present some degree of continuity and stability with the historic community.

Each respondent first established a genealogical link with an Amerindian or Métis ancestor, then claimed to be a member of the CMDRSM.

The Court pointed out that while belonging to an organization such as the CMDRSM might be relevant, it was not a deciding factor under the circumstances. The Court concluded that the CMDRSM was created too recently to have been a vehicle for transmitting indigenous traditions, such that membership in the CMDRSM cannot be used to rigorously establish a link, based on the relevant legal criteria, between its members and an ancestral Métis community. After examining the evidence presented by the experts, the Court went on to conclude that it could not be used to support the existence, on the territory, of a contemporary Métis community bearing the rights claimed by the Respondents.

  • Prior Occupation

The next step of the Powley test requires the Respondents to demonstrate that the Métis community occupied the claimed territory prior to the Crown’s sovereignty. On that point, the Respondents argued that the Crown effectively gained control over the claimed territory during a period of migratory effervescence that saw the arrival of a massive number of colonizers, the creation of municipal and legal institutions, the displacement of Aboriginals into reserves and what they describe as the administrative disappearance of the Métis between 1842 and 1853. The Attorney General argued on the contrary that the sovereign acts, taken progressively under the French and British regimes alike, show that effective control over the claimed territory was completed between 1733 and 1767.

The Court emphasized that the parties’ respective claims were not without merit. It added, however, that any assessment of the control’s effectiveness must necessarily align with the goals of the law, which are to recognize and protect Aboriginal rights. Consequently, as illustrated by the Supreme Court of Canada’s approach in Powley, political and legal control over a territory can only be determined by the effect of the authorities’ acts on the customs, practices and traditions of the Aboriginal people on the territory. Here, the circumstances established by the evidence reveal that the Aboriginal people’s way of life within the claimed territory was not greatly affected by European laws and customs before the region was opened to colonization, namely once the monopoly granted to the Hudson’s Bay Company expired in 1842. The effective control continued until late 1850, with the establishment of administrative institutions.

  • Respondent’s membership in the contemporary community

Verification of the identity of an individual claiming an Aboriginal Métis right is another crucial step of the Powley test. The three main elements that must be demonstrated are: self-identification, ancestral connection and community acceptance.

The Respondent testified that his father had told him when he was only 8 or 9 years old that he was part “savage”. Born in Chicoutimi, he started following his father, a forest worker and entrepreneur, on his hunting trips at the age of 13, and has continued the practice to this day. He recognizes having often acted clandestinely, hunting out of season up until 1971, then having moved his shelters, cabins or blinds that were illegally erected in the woods whenever wildlife officials would give him warning or threaten to intervene. Only in the 1980s and 1990s did the Respondent, when faced with the threat of seeing his hunting camp destroyed by authorities, begin to do some research into the Aboriginal roots his father had told him about. Genealogical research confirmed that he did have Montagnais ancestry on his father’s side, five generations removed. That was when he decided to join Aboriginal rights defence associations. He became a member of the CMDRSM in 2005.

The Court concluded that this late awakening suggests that the Respondent’s identification was tinged with opportunism. The Respondent’s claims do not meet the self-identification criterion, as blood relationship alone is insufficient. As for ancestral connections, the Court concluded that the evidence reveals that his ancestor’s Aboriginal culture could only have been marginal and his membership in a historic Métis community was highly improbable. Indeed, the genealogical background that was adduced, notably the fact that Respondent’s Montagnais ancestor left his community at a very young age, was insufficient. As for the criterion of acceptance by the contemporary community, the Respondent alleges being a member of only one community, the CMDRSM. However, the CMDRSM is hardly a contemporary Métis community in this case, seeing as not only is it quite young, it was created for the purposes of defending political interests and bears no cultural relationship whatsoever to any ancestral Métis community.

The remaining criteria of the Powley test went unexamined by the Court owing to the latter’s conclusions and the fact that no evidence in that respect was presented by the Attorney General.

Conclusion

The Respondents failed to demonstrate the existence of the claimed ancestral right needed to benefit from the protection that section 35 of the Constitution Act affords to Aboriginal peoples, including the Métis. Seeing as these ancestral rights are communal, and the Respondent failed to establish that he is a recognized member of a contemporary Métis community that inherited the claimed rights from an ancestral Métis community, this constitutional ground of defence must be dismissed. Consequently, the Respondents have no choice but to abandon those areas of the public domain lands they are illegally occupying.

This ruling illustrates how difficult it is to meet the Supreme Court of Canada’s criteria for establishing the presence of Métis communities in Québec, as opposed to the historical reality of communities in Western Canada.