For a Métis claim of Aboriginal rights to succeed under s.35, there must be evidence, on a balance of probabilities, that a Métis community had existed that asserted sufficient control over the territory in question, prior to the imposition of European control.
Mr. Tremblay, asserted that he is Métis but faced multiple criminal charges relating to wildlife preservation, sustainable development, wildlife habitat and forests. The issue at hand is whether the provisions of the statues and regulations are not applicable to Mr. Tremblay as a result of his rights protected by s.35 of the Constitution Act, 1982. The Court held that Mr. Tremblay was guilty of the offences to which he is charged, as there was insufficient evidence to establish that a Metis community existed with sufficient control of the territory in the period in which Mr. Tremblay alleges.
Counsel for Mr. Tremblay argued that s.35 protected his rights as they pertain to hunting, fishing, trapping and gathering rights, as well as his right to take part in activities traditionally and reasonably incidental to the exercise of his rights under ss.35 (1) and (2). In their view, this constituted the exercise of Aboriginal rights to partake in activities for food, social purposes and in traditional Métis celebrations such as clearing impassable paths, modifying banks of watercourses so that they are reasonably accessible for young or elderly people, stocking fish in lakes as well as taking measures to keep them in certain watercourses by protecting and preserving peaceful and safe hunting practices by erecting temporary barriers.
Counsel for the Attorney General Quebec (AGQ) recognized that if criteria 2 and 6 set out in R v Powley were met, the evidence submitted would be sufficient to establish on the balance of probabilities that hunting, fishing and trapping for subsistence purposes, constituted the contemporary expression of traditional Métis practices. They further asserted that on the facts, Mr. Tremblay’s activities do not pertain to the traditional culture of a Métis community and cannot be considered incidental to contemporary practices of primary Aboriginal hunting, fishing and trapping rights. For clarity, criteria 2 from R v Powley is whether the claimant is a member of a contemporary Métis community, while criteria 6 is whether the practice is integral to the culture of the community.
R v Powley stated that rights enshrined and protected in ss.35 (1) and (2) are Aboriginal rights of Métis and Aboriginal communities. A Métis community consists of a group of Métis with distinctive collective identities. The Court of Québec made reference to the historical observations set out by counsel and accepted in R v Powley. This was reinforced at the Court of Appeal, which affirmed that prior to the assertion of sovereignty, there was a recognized separate Métis community in the area of Sault St. Marie. The Court also pointed to R v Willison, which set out that evidence of a settlement is not required for a Métis community to exist. Finally, reference was made to R v Van der Peet to elucidate the approach to be taken in hearing applications regarding the recognition of Métis rights. For Métis communities, the rights established cannot be rights that existed prior to contact but rather rights existing prior to the imposition of European Canadian control.
The expert evidence provided allowed the Court to make conclusions in respect of Métis ethnogenesis in the study region. This included the establishment and maintenance of a historic Métis community in the study region, the genealogy of Mr. Michael Tremblay, and Crown sovereignty and effective control. The ethnogenesis in the study region suggested that a distinct Métis community developed at the dawn of the nineteenth century amongst a group of mixed-race people with close and unique ties. It was noted that a historic Métis community had been established and existed. The Métis were largely represented in farming activities, the lumber industry and the fur trade, but they also worked as guides and day labourers. They participated in the traditional economy by way of hunting, fishing and trapping, music, gathering and the manufacture of maple syrup and sugar. The Métis also engaged in canoe building and guide activities along with attachment to Catholic rites and practices.
The Court found, however, that the evidence did not truly reveal that a group of mixed ancestry was geographically isolated in that study region. The evidence submitted regarding the marriages between mixed race people also failed to establish that there was a historical Métis community. Further evidence submitted suggested that there was uncertainty regarding the number of ancestors for the period of ethnogenesis proposed. It was further suggested that of these ancestors, five out of six did not share the ethnic criteria identified by an expert. The Court also found that there was insufficient evidence that this community had its own control. The evidence presented that, although the province of Ontario obtained control by way of the Public Lands Act,1853 and the Free Grant and Homestead Act, 1868, these Acts only had significant impact on the Métis lifestyle near the end of this period. Nonetheless, the Court found that the passing of the statutes and the opening of the regional prison in 1886 radically altered the way of life of Aboriginal and Métis people. After considering all evidence presented, the Court concluded that the evidence submitted for Mr. Tremblay was insufficient on the balance of probabilities to meet the criteria outlined in R v Powley and therefore is guilty of the offences to which he was charged under the Criminal Code.