On December 29, 2008, the Provincial Court of Manitoba affirmed that the Métis in Manitoba have an Aboriginal right to hunt in the environs of Turtle Mountain located in southwestern Manitoba. The court also found that the Métis community encompasses all of the area within the present boundaries of southern Manitoba from Winnipeg and extending south to the United States and northwest to the Province of Saskatchewan, including the area of Russell, Manitoba,2 and that effective European control did not occur in Manitoba until 1870 to 1880.

Background

William Goodon was charged under the provincial Wildlife Act3 for killing a ringneck duck near Turtle Mountain without a hunting licence. The accused maintained that he had shot the duck for food under the authority of a harvesting card issued by the Manitoba Métis Federation, of which he had been a member since 1994. The question before the court was whether Section 19 of the Wildlife Act is of no force and effect by reason of the accused’s Aboriginal rights under Section 35 of the Constitution Act, 1982.

The Decision

The court held that Section 19 of the Wildlife Act was of no force and effect by reason of Goodon’s Section 35 rights, and dismissed the charges against him. The court relied on the Powley Test, a 10-part test relating to Métis rights set out by the Supreme Court of Canada (SCC) in R. v. Powley.4In Powley, the SCC held that the Aboriginal practice in question must be a practice important to the Métis community not only today but prior to European control of that community. Métis hunting rights only exist in circumstances where the individual is a member of an identifiable Métis community that has been continual and stable at a site that can be specifically identified. The SCC noted that the site of the right being claimed may be within the historic rights-bearing community, but may not include the entire area.

Upon reviewing the evidence, the court determined that the Métis in Manitoba were generally a transient people with a community that would be described as regional.5 The court concluded that the historic rights-bearing Métis community includes Turtle Mountain and all of the area within the present boundaries of southern Manitoba from the City of Winnipeg and extending south to the United States and northwest to the Province of Saskatchewan, including the area of Russell, Manitoba.6 In particular, the court deemed Turtle Mountain to be an important part of the large Métis regional community throughout much of the 19th century.7

The court went on to conclude that there remains a contemporary Métis community in southwest Manitoba to which Mr. Goodon had unquestionable historical ancestral ties. Effective European control did not occur in the "postage stamp" Province of Manitoba8 until it actually became a province in 1870, and effective control of the remainder of what is now southern Manitoba took place around 1880.9 Experts on both sides confirmed that hunting and harvesting for food was integral to the Métis culture in southwestern Manitoba, and continues to be so today.

The court dismissed the Crown’s arguments that (i) Métis hunting rights have been extinguished within the "postage stamp" Province of Manitoba by the Manitoba Act, 1870; and (ii) if part of the rights-bearing community rests within the "postage stamp" province, the rights of the entire community are extinguished. The court noted that Goodon was hunting outside of the "postage stamp" province and held that the Manitoba Act, 1870 did not and does not have any effect on territory outside of the "postage stamp" province.10

After analyzing the first eight steps of the Powley Test, the court concluded that Section 19 of the Wildlife Act infringed Métis hunting rights since the Act restricts Métis and non-Aboriginal rights equally. As the Crown had not attempted to justify the infringement, the court dismissed the charges.