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Top News - October - 2003
Monumental win for Métis
Powley determines who can access Section 35 rightsCourt urges government action
Police shut down criticNon-status non-sense - Editorial
So Phil, what were you thinking? - Guest ColumnCheck out Ontario Birchbark
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Powley determines who can access Section 35 rights
Paul Barnsley, Windspeaker Staff Writer, Ottawa
On Sept. 19, the Supreme Court of Canada confirmed what Métis people have known all along; the Métis of Canada are Aboriginal under the Constitution and have Aboriginal rights under Section 35.
The case decided is known as Powley and it began with a charge under Ontario's fish and wildlife legislation against Steve and Roddy Powley who had shot a moose without the benefit of having a license.
The Powley's argued that because they are Métis, they have an Aboriginal right to hunt for food on unused Crown land. The court agreed, concluding that the Powleys are clearly part of a Métis community with a distinctive culture and long historical roots to the area where the moose was shot, and that Section 35 rights applied to them.
Though future cases relying on claims of Métis rights will be determined on a case-by-case basis, the court has laid out the ground rules for determining who has those rights and who does not.
The Supreme Court of Canada said that in order to claim Section 35 rights as a Métis person, the claimant must:
1. Self-identify as a member of an historic Métis community;
2. Have evidence of an ancestral connection to an historic Métis community; (though the court rejected the concept of a minimum blood quantum, relying instead on proof that the claimant's ancestors belonged to the historic Métis community by birth, adoption or other means;)
and
3. Be able to demonstrate acceptance by the members of the modern-day descendants of that historic Métis community.
"What we argued is that the Métis Nation, which we consider to be the Prairies and a little bit into B.C. and Ontario, is genealogically connected and has the same traditions and family connections. That was one Métis people," said Powley lawyer Jean Teillet. "We never said anything about the possibility that there might be somebody in, say, Newfoundland, because we don't know anything about it," she said "We've never said that [the Métis Nation] are the only Métis people. What we've said is that at the very least, the Métis inclusion in the Constitution includes the Métis Nation."
Teillet said the court decided not who was a Métis, but who was entitled to access Métis rights.
It's a fine distinction. Up to now, many people with Aboriginal blood who were not status Indians called themselves Métis.
"This is about a people, so therefore, there has to be a collectivity there, and there has to be a history and you have to be able to put that forward. Why we say [the Powley decision] is not about a definition [of Métis] is because the court didn't make any statements about who can be a member of that community. But it definitely is talking collective rights of the Métis based on their own history and that is precisely what we argued," she said. "It moves the markers, but it's not a definition by any stretch of the imagination."
She said the decision will require a re-thinking about the rights of non-status Indians.
"I think it's going to be very difficult for organizations like CAP [Congress of Aboriginal Peoples] who have always said that anybody who had any Aboriginal ancestry could claim to be Métis and could claim rights. They've lost that argument. We've always said that's wrong," she said.
And those who are of mixed blood, but not part of an historical Métis community will have some thinking to do.
"I've never thought those people were Métis. The classic one was the woman I met who said to me, 'Well, I'm Métis, too.' And I always play what I call Métis geography, which is 'Where are you from?' and 'What's your real family name?' Because there really are only about 20 real Métis names. You're either a Riel or a Laviolette or a Poitras or a Chartrand or something when it gets down to it. She said to me, 'My mom is part Shuswap and my dad is part Shuswap.' And I asked, 'Well, why doesn't that make you Shuswap?' And she said, 'Because I grew up in Calgary.' And I asked why doesn't that make you a Shuswap who grew up in Calgary? How does that make you Métis?' And she looked at me and said, 'Well, I guess everybody has a different definition of who is a Métis.' And my response was, 'Yes, and some of them are wrong.' Quite frankly, I think she should be justifiably proud of her Shuswap heritage, but why does that make her Métis? It doesn't. And I think this decision is really clarifying that."
Windspeaker asked if the court decision created a new category of Aboriginal people.
"I don't think so," Teillet said. "I think we're left with a larger class of non-status Indians than we had before. Many people who were trying to claim they were Métis are not going to be Métis; they're going to be non-status Indians. And why isn't that correct? If your grandmother was Mi'kmaq, why aren't you Mi'kmaq?"
But the standard used in the United States-blood quantum-was rejected by the court.
"It's completely horrid and the court rejected that quite properly," she said.
The decision did not define who Métis people are, she added, but it clarified the legal landscape, nonetheless.
"I think what we now know is who can exercise Métis rights, not necessarily who the Métis are," she said.
Another Métis rights case, Regina v Blais, was handed down by the Supreme Court on Sept. 19. That decision did not go in favor of Ernie Blais, who was trying to get the court to rule that Métis people should be considered as "Indians" under the Natural Resources Transfer Act (NRTA) of 1930.
In Blais, the court ruled that while the NRTA allowed "Indians" to hunt on vacant Crown land, the argument that Métis people should be considered as "Indians" for the purpose of this law was going too far.
The concept that Métis people are "constitutional Indians" put forward by Blais' lawyer was not accepted by the court as it applies to the NRTA, but it may yet prevail when applied to the division of power between the provinces and the federal government in Canada's Constitution, Teillet said.
In Section 91-24 of the Constitution Act, 1867, the federal government reserved responsibility "for Indians and lands reserved for Indians." Métis were not mentioned. But in the Constitution Act, 1982, Métis were recognized as Aboriginal peoples whose rights were "recognized and affirmed." Since they were not mentioned in Section 91-24, the court may yet recognize the concept of "constitutional Indians," Teillet said.Paul Barnsley, Windspeaker Staff Writer, Ottawa
A decision on Aboriginal rights was brought down by the Supreme Court of Canada on Sept. 19, and included strong direction for Canada's legislators to get to work on finding a way to accommodate those rights, rather than fighting to deny them.
That's how Jean Teillet, great-grandniece of historic Métis leader Louis Riel, interprets the decision in the hunting rights case known as Powley. And she should know. Teillet is the lawyer who argued the case for Steve and Roddy Powley.
The Powleys claimed they should not have been charged under Ontario's fish and wildlife legislation for hunting a moose without a license, because they are Métis and have an Aboriginal right to hunt for food on vacant Crown land.
The Supreme Court of Canada agreed, and turned down the province of Ontario's appeal of the Powleys' wins in lower courts.
"The decision is so clear and it's unanimous. It's not like all the other Supreme Court of Canada decisions on Aboriginal rights where there's dissenting opinions or concurring opinions. It's just a black and white, crystal clear decision," she said.
And within this crystal clear decision, the court sent strong messages to legislators to deal with the fact that Aboriginal rights exist.
"I think there's a couple that are just massive direction to the federal and provincial governments. When the court says that it is 'urgent' that the government get down to working with Métis people about identifying people and creating standard tests for determining who is Métis, that's direction to the government. It isn't to the Métis," who have been trying to set those standards without the help of the government, said Teillet.
There was also direction in the Powley decision that told the government not to "exaggerate" the difficulty of identifying Métis.
"When they said that this is not an insurmountable task, that they shouldn't 'exaggerate,' I think that was the exact word they use, the difficulty of identifying the Métis people in order to uphold their policy of denial, that's massively strong language from a court to the government," she said. "'Get on with this. We're not going to accept the fact that you think this might be slightly difficult as a denial.' I think those are huge admonitions to the government and I'm very happy to see it."
On Dec. 11, it will be six years since the Supreme Court handed down the Delgamuukw decision. Native leaders say that landmark recognition of Aboriginal land title rights has not been fully embraced by Canadian governments.
Windspeaker asked Teillet if the six-year lag from the time of the Delgamuukw decision to the Powley decision created, or added to, the court's sense of urgency.
"It may be that's what's going on, that they're getting tougher." She said words like 'crucial' and 'urgent' weren't used in Delgamuukw.
"The way the courts work is to set out the broad strokes first and then they hope the government will act properly in the right direction. But always issues will come up, so then in the next judgement they get more concise and in the next judgement they get more and it keeps working that way until it gets much more defined. And you have to keep walking down this road. I would expect that they're here on this because they see the problems," she said. "What we've got is federal and provincial governments are saying they have no fiduciary obligation or they only have this duty to consult, which to them means run into a community, flash a piece of paper around and then run out again and then they can do whatever they want with the land and with the resources. I think the courts are starting to see now that they need to put more teeth in their judgements."Paul Barnsley, Windspeaker Staff Writer, Saskatoon
Criminal charges were filed against Métis activist John Melenchuk after he was arrested during a protest outside a community police station in Saskatoon on Aug. 29.
Just three days before two major inquiries into justice-related matters were set to begin, the vocal critic of the police, and of the province's justice system in general, was charged with mischief over $5,000. The charge was based on an allegation that Melenchuk's protest interfered with the operation of a business near the Little Chief community policing station in the area of Saskatoon known as "the 'hood." The business he is alleged to have interfered with is a provincially-owned Saskatchewan Liquor Board store.
A second indictable offense was added because the activist wears a mask during his protests.
In order to be released from custody, he was required to sign an undertaking promising not to wear a mask or any disguise, not to possess any device designed to amplify his voice and to stay away from an address on 20th St. West.
"This is a way to shut me up," he told Windspeaker after he was released.
He said he was protesting against the actions of senior police officers in the city to draw attention to matters that were to be dealt with in the two legal actions.
The inquest into the death of Neil Stonechild, a 17-year-old Native youth who was found frozen to death on the outskirts of the city after last being seen in the back of a police car, started Sept. 3, as did the wrongful prosecution civil action launched by Peter Klassen, who served four years in jail after police bungled an investigation into fantastic allegations of sexual assault made against him by a troubled young boy. It was expected that the actions of members of the Saskatoon Police Service would come into question in both proceedings.
"They'll have to prove that I had intent to damage the liquor board. If they lost $5,000 I want to see the records that show how that day differed in comparison to other days. I'm going to put them under the microscope," said Melenchuk, who will represent himself in court. "These charges are going to get dropped. This is just until my court five months down the road; they're going to keep me shut up. That's how they use the system."
Melenchuk said it was "ridiculous" to state that he caused a loss of business of more than $5,000 during an 80-minute protest.
"An hour and 20 minutes and they say I caused $5,000 damage," he said. "That's 250 paying customers [who were prevented from entering the liquor store] at the minimum and probably way more than that. A lot of these people in this neighborhood panhandle for hours just to buy a bottle of Baby Duck. And the liquor store is kitty corner across the street from Little Chief. I'm not even in front of the store. I'm across the street."
He claimed he was later charged in relation to another protest at city hall, but the charge was thrown out.
He added that he had conducted more than 20 protests over the last three years and wondered why he hadn't been charged then.
Several legal sources, who asked not to be named, said the Criminal Code prohibition against wearing a mask while committing an indictable offense was designed to prevent criminals from escaping prosecution by hiding their identity.
Melenchuk is well-known to police in the city. He said the arresting officer called him by name when he approached the activist to inform him he was under arrest.
While Melenchuk said he believes the police have stretched the meaning of a couple of Criminal Code sections in an attempt to make trouble for him, Inspector Lorne Constantinoff, public affairs officer with the Saskatoon City Police, denied that charge.
"That is not the position of the police department at all. Mr. Melenchuk has been protesting for quite some time and we've had conversations with him, indicated to him that when we act upon these things, it's not the police department acting on our own behalf. When it comes to charges like disturbance, mischief, things like that, the police department is not the complainant. We receive the complaint from a concerned citizen. We evaluate the basis of their complaint and then interpret that to charges related in the Criminal Code," he said.
