Corneau v AG of Québec, 2018 QCCA 1172

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The test set out in R v Powley for Métis rights requires that a Métis community’s distinct nature be sought out, but does not require that the underlying practices and traditions be distinct.

This case involved an application brought against Mr. Corneau, and other alleged offenders, for occupying sites on public lands without any property right, lease or occupancy permit contrary to s.54 of The Act Respecting the Lands in the Domain of the State (“the Act”). Mr. Courneau contested the application on the basis that he belongs to a Métis community which confers rights to occupy the alleged public lands. It was held at trial that Mr. Corneau did not meet the requirements of the test set out in R v Powley for Métis rights. Mr. Corneau has appealed the decision, calling into question the trial court’s assessment of: (i) the evidence following the identification of the historic Métis community; (ii) the existence of a modern community; (iii) the appellants’ membership in the modern community and (iv) the period of control. In the end, the Québec Court of Appeal (“the Court”) dismissed the appeals and ordered that Mr. Corneau abandon the sites and return the premises to their former condition.

The Court began by reviewing the R v Powley decision, which clarified the test for identifying a Métis community’s rights. It first began by observing that the term Métis is not a matter of genetics, but rather of culture and identity. As articulated by the Supreme Court of Canada (“SCC”), the term Métis “does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life and recognizable group identity”. Furthermore, a Métis community are “a group of Métis, with a distinctive collective identity, living together in the same geographic area.” The Court then identified the constitutionally protected Métis rights as those rights subsisting in Métis communities that emerged between first contact and the effective imposition of European control. The focus therefore is on rights that existed “post-contact”, for example after a particular Métis community arose, but also “pre-control”, or before it came under the effective control of European laws and customs.

The Court then reviewed the factual matrix as presented by the trial court. The trial court found the evidence adduced by the appellants to be insufficient to establish an identifiable historic Métis community that would allow mixed individuals to be distinguished from their biological authors. This was decided after consideration of the evidence presented by historians, genealogists and anthropologists. It was also the opinion of the trial judge that even if there was a historic community of Métis tied to the land in question, there was no modern community holding the right being claimed. Finally, in consideration of the personal circumstances of Mr. Corneau, the trial judge found the evidence of self-identification with a Métis community unconvincing. The trial court observed that: (1) Mr. Corneau’s self-identification occurred later in life and was driven by opportunism; (2) that his ancestral connection did not, on the balance of probabilities, belong to an historic Métis community; and that (3) the absence of a cultural tie between the Métis organizations and his ancestral Métis community suggest that there is not, on the balance of probabilities, sufficient evidence of the existence of the right claimed.

The Court then set out the standard of review as requiring a palpable and overriding error standard for questions of mixed fact and law. It noted that, as per R v Van der Peet, courts must not undervalue the evidence of Aboriginal claimants simply because there is no evidence conforming to the evidentiary standards of other areas of law, such as a private law torts case. It also cited Mitchell v MRN, which highlighted that while Aboriginal claims must still be established on the basis of persuasive evidence, their forms of evidence must also be afforded equal and due treatment.

In respect of issue (i) and (ii), the Court agreed with the trial court that there was no historic Métis community, but upheld the appellants’ contention that the trial court applied the test too strictly. The Court observed that the test, as applied by the trial court, takes for granted that the practise and traditions of the community in question must be distinct, while the SCC only required that the distinctive nature be sought out. Nonetheless, this error is not determinative, as it does not change the conclusion of the Court that there was no historic community holding rights to be claimed. Specifically, the Court agreed that the appellants’ expert witnesses failed to meaningfully question the evidence of historian Russel Bouchard. Evidence from Bouchard was relied on to build the claim that the individuals from mixed marriages between Euro-Canadians and Indians defended their diversity as a cultural and identity marker. The respondents, however, presented evidence suggesting that such marriages did not result in a distinct community, but rather integration into the already established Montagnais community and later into Euro Canada. In the end, the practices or traditions must also be proved. While the Court does not directly address the issues of whether there exists a modern Métis community, they are not required to as they have concluded that no historic community existed.

In respect of issue (iii), the Court held that the trial court erred in their comparison of the historic Métis community of Sault Ste Marie with the alleged historic Métis community of Domaine du Roy and Mingan Seignory. In particular, the Court held that the trial court’s strict application of the factors of density and proximity is inappropriate. As stated by the Court, “it is possible to imagine that members of a historic community could settle in several separate locations while forming a single regional unit.”  An historic community can be regional and nomadic.

In respect of issue (iv) the Court agreed with the trial court’s contention that control over the territory in question occurred between 1842 and 1850. Both the appellants and the respondents contest this finding. The appellants argued that the correct time period ought to be after 1856 when Aboriginal people were displaced following the creation of reserves, relying on primitive land surveys between 1843 and 1860, indicated in the installation of a municipal regime and administration of justice, to support this position. The Court found, however, that they failed to submit sufficient evidence to illustrate a palpable and overriding error on the part of the trial court.

The respondents argued that the trial court erred in analyzing the evidence based on the legal criterion for control. The Court dismissed this position on the basis that the expert evidence relied on by the respondents mis-categorized the Domaine du Roi territory as one governed by the seigneurial land grant system, under which control was established between 1733 and 1767. Under cross-examination it was revealed that no primary or secondary sources refer to Domaine du Roi as a secondary estate. Instead, the Domaine du Roi was preserved for the fur trade and no land grants were offered in respect of it and ended in 1842 when the government included a condition in a renewed lease of the Hudson’s Bay Company that the government could have the land surveyed and could settle colonists in any part of the Domaine suitable for agricultural colonization. Thus, the Court found that the evidence supported the approach taken by the trial court.

 

Director of Criminal and Penal Prosecutions v Michel Tremblay, 2018 Court of Québec

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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.

 

Case Watch for September 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Crown’s duty to consult & the constitutional competence of the NEB

Tsleil-Waututh Nation v Canada (National Energy Board), 2016 FCA 219: The Federal Court of Appeal dismissed a statutory appeal from three interlocutory decisions of the National Energy Board (NEB) with respect to the Trans Mountain Pipeline proposal. Tsleil-Waututh Nation (TWN) challenged the NEB’s determination that the application for the project was sufficiently complete to proceed with an assessment and public hearing, a determination that included a listing and scoping of factors to be considered during the assessment, and an order detailing the steps and deadlines governing the assessment. While TWN raised complex arguments with regards to the NEB’s obligation to either discharge or assess Crown consultations, among others, the Court of Appeal dismissed its appeal largely on preliminary issues. The Court held that none of the challenged decisions were final and TWN ought to have first raised its concerns before the NEB itself rather than proceeding directly to the Court of Appeal. While the Court declined to intervene with respect to the Crown’s duty to consult at this stage, it did so without prejudice to TWN’s ability to challenge the final decisions of the Governor in Council on consultation for this project.

Modern treaty signatory added as defendant in Aboriginal rights case –

Cowichan Tribes v Canada (Attorney General), 2016 BCSC 1660: The British Columbia Supreme Court allowed an application from Tsawwassen First Nation (TFN) to be added as a defendant in an action brought by Cowichan Tribes and others for declarations of Aboriginal rights and title in what is now the City of Richmond. While Cowichan’s claims overlap with TFN’s territory, as defined in its modern treaty, Cowichan argued against joinder on the basis that its claims are narrowly defined and do not overlap with any TFN lands under its treaty. The Court accepted that TFN’s rights to the portion of its territory in conflict with Cowichan’s claims are largely consultative, but held that these are still section 35 rights to be accorded recognition. These rights were also sufficient to provide TFN with a direct interest in the litigation. TFN’s rights under the agreement fluctuate depending on the land-holding status of the area underpinning these rights, and the litigation could result in the introduction of an extra party into negotiations over fishing areas that TFN has rights to under its agreement.

Property taxation on reserve and statutory interpretation –

Musqueam Indian Band v Musqueam Indian Band (Board of Review), 2016 SCC 36: The Supreme Court of Canada dismissed an appeal from Musqueam Nation against a 2011 property taxation assessment of a golf and country club on its reserve land being calculated on the basis of its use as a golf and country club, as opposed to its value as residential land. The reserve land in question was surrendered in 1957 for lease to the golf and country club and its value for property tax purposes was consistently assessed on the basis of the restrictions under that lease from that point on. In 1996, however, Musqueam amended its property assessment bylaw to reduce the types of restrictions that an assessor could consider to “any restriction placed on the use of the land and improvements by the band” (emphasis added). In 2011, Musqueam challenged the consideration of the restrictions under the lease in a property tax assessment on the basis that the lease was negotiated between the Crown and the golf and country club and its restrictions were therefore not imposed “by the band”. Musqueam also argued that the 1996 amendment was made to account for its newly recognized land management powers under the Framework Agreement on First Nations Land Management. Both arguments were rejected.

Determination between competing 60’s scoop class actions –

Thompson v Manitoba (Minister of Justice), 2016 MBQB 169: The Manitoba Court of Queen’s Bench exercised its discretion to permit one of two class actions to proceed with respect to individuals affected by the 60’s scoop in Manitoba (Meeches v Canada). It also stayed the other proposed class action (Thompson v Manitoba), issued a declaration that no further proposed 60’s scoop class actions are to be commenced in Manitoba on the same facts without leave, and granted leave to amend Meeches to ensure it covers the class members from Thompson. While Thompson was filed first, counsel did not take steps to seek certification in a timely manner. Meeches was also framed more consistently with the Brown case that has already been certified in Ontario with respect to 60’s scoop survivors there.

Addressing FASD in context to Gladue factors –

R v Drysdale, 2016 SKQB 312: The Saskatchewan Court of Queen’s Bench extensively considered the Gladue factors and Fetal Alcohol Spectrum Disorder (FASD) of an Aboriginal man in sentencing him for assault and threatening to use a weapon, relying on a full Gladue report and four witnesses for this purpose. The Court held that in the circumstances, a “needs based” as opposed to a retributive sentence was appropriate. The Court held that “a Gladue impacted individual affected by FASD has a reduced moral and legal responsibility” with respect to actions such as those underlying the offence in this case, which exhibited impulsiveness and a disconnect between actions and consequences common among FASD affected individuals. The Court also considered the Truth and Reconciliation Commission’s Call to Action 34, which focuses on better addressing the needs of offenders with FASD, in crafting its sentence.

First Nations advisory organization declared provincial entity –

Treaty 8 Tribal Association v Barley, 2016 FC 1090: The Federal Court allowed an application for judicial review of a federal adjudicator’s conclusion that the Treaty 8 Tribal Association was a federal undertaking for the purpose of the application of the Canada Labour Code. The adjudicator was held to have failed to apply the functional test to determine whether the nature, operations and habitual activities of the Association fell under the head of power of “Indians, and Lands reserved for the Indians”. The Association provides advisory, administrative, advocacy and other services to its members and other First Nations, but does not provide services under the Indian Act nor within the realm of First Nations governance or reserve land. The habitual activities of the Association did not fall under subsection 91(24) of the Constitution Act either.

Defamation by way of band council resolution –

Hazel v Rainy River First Nations, 2016 ONSC 5875: The Ontario Superior Court of Justice rejected the defendant First Nations’ motion for summary judgment and instead allowed summary judgment in favour of the plaintiffs in a defamation claim. The defendant First Nations described the plaintiffs as “undesirables” in a band council resolution (BCR), declared them trespassers on its territory, and resolved that they were to be removed and charged as trespassers if they were found on its territory. The Court held that placing the BCR into a book available to community members was a sufficient act of publication for the purposes of sustaining an action for defamation regardless of whether anyone had looked at the BCR in question. The Court also held that there was no dispute that describing the plaintiffs as “undesirables” was defamatory. Arguments with respect to qualified privilege, issue estoppel and abuse of process were all rejected.

Severance of criminal charges in context to constitutional challenge –

R c Rice, 2016 QCCS 4610 (in English): The Superior Court of Quebec severed criminal charges against three men from Kahnawake in relation to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial authorities. The defendants raised a constitutional challenge in this case involving various rights asserted on behalf of the Mohawk Nation, including rights of self-determination and internal sovereignty, a right to harvest, produce and sell tobacco products, and a right to exemption from taxation under s 87 of the Indian Act. The Court held that there was no reasonable likelihood that the s 35 rights claimed, assuming they were proven, would be unjustifiably infringed by the defendants’ obligations to collect and remit consumer taxes from non-Aboriginal customers. The Court also held that there was no reasonable likelihood of the s 87 exemption being successfully invoked against the defendants’ obligations to collect and remit taxes from non-Aboriginal customers. The Court was unable, however, to conclude that there was no reasonable likelihood of the defendants being able to prove that s 87 exempted them from the imposition of duties on tobacco products. The two charges related to the last argument were severed from the others and the Court ordered for a trial to proceed separately with respect to the charges that were not implicated by this argument.

Metis Settlement’s jurisdiction to specify membership requirements –

Kikino Metis Settlement v Metis Settlements Appeal Tribunal (Membership Panel), 2016 ABCA 260: The Alberta Court of Appeal has granted permission to appeal on a question of law from a decision of the Metis Settlements Appeal Tribunal setting aside a membership decision by the Kikino Metis Settlement. Kikino has passed a bylaw that appears to provide it with discretion to reject an application for membership from a candidate who is otherwise eligible to apply under the Metis Settlements Act and meets the minimum standards for admission under the Act. An otherwise eligible applicant who was rejected for reasons not set out in the Act successfully challenged her rejection before the Appeal Tribunal. The Court of Appeal will allow an appeal to proceed on two questions: 1) whether a Metis settlement can establish membership criteria that is more onerous than the minimum standards under the Act; and 2) if so, whether the criteria applied to the applicant rejected in this case was a lawful exercise of Kikino’s jurisdiction under its membership bylaw.

Placement of Métis child with non-Aboriginal adoptive parents –

LM v British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367: The British Columbia Court of Appeal dismissed two appeals related to the intention of the Director of Child, Family and Community Services to place a Métis child from British Columbia in the care of a non-Aboriginal couple in Ontario that has already adopted two of the child’s siblings. The appellants have been the child’s foster parents since two days after her birth and one of the appellants is also of Métis heritage. The first appeal was dismissed primarily because the appellants were found to be seeking an adoption order for which there was no basis in the statutory scheme. The Court of Appeal rejected an argument that the lower court had not paid adequate attention to the child’s Métis heritage, concluding that this was not relevant to the Director’s decision that the appellants were challenging on judicial review. The Court of Appeal rejected the second appeal on the basis that the Charter arguments that the appellants wished to raise were correctly found to be subject to res judicata and there was an insufficient evidentiary record to decide these argument on appeal in any event.

Stays of proceedings for unreasonable delay (section 11(b)) –

R c Gilpin, 2016 QCCQ 9459 (in French only): The Court of Quebec allowed an application to stay criminal proceedings against two men in the judicial district of Abitibi on the basis that delays in these proceedings had violated their right to be tried within a reasonable time under s 11(b) of the Charter. The Court applied the analysis recently mandated by the Supreme Court of Canada in R v Jordan to conclude that the delays in each applicant’s case were beyond the presumptive ceiling for reasonable delay, and there were insufficient exceptional circumstances to rebut this presumption of unreasonableness. The Court acknowledged past jurisprudence where the unique circumstances of communities in northern Quebec were found to justify trials taking longer, but concluded that these circumstances will no longer be considered “exceptional” for the purposes of applying s 11(b).

R c Rice, 2016 QCCS 4659 (in English): The Superior Court of Quebec allowed a s 11(b) application to stay criminal proceedings against three men from Kahnawake on charges relating to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial tax authorities. The Court held that even prior to the Supreme Court’s recent Jordan decision, the delays in this case would have been sufficient to ground an application for a stay of proceedings under s 11(b). While the defendants had presented a tardy constitutional challenge to the charges against them, this had no bearing on any delays they faced for the purpose of the s 11(b) analysis.

Stays of proceedings pending appellate decision on Métis rights –

Québec v Savard, 2016 QCCS 4391 (in French only): The Superior Court of Quebec allowed an application to stay proceedings in which Quebec is seeking to evict the applicant from a hunting camp. The applicant’s sole defense rests on his assertion that he is a member of the Métis community of Domaine du Roy and Seigneurie de Mingan and his community has Métis hunting rights that are protected under s 35(1) of the Constitution Act, 1982. Another member of this same community, Ghislain Corneau, was unsuccessful in defending himself from a parallel application for eviction from the hunting camp before the Superior Court of Quebec early last year (see Québec c Corneau). In Corneau, the Superior Court ruled that the Métis community to which Mr. Corneau and Mr. Savard belong does not meet the Supreme Court of Canada’s Powley test. Mr. Corneau has since appealed that decision to the Quebec Court of Appeal and an appellate decision remains outstanding. The proceedings against Mr. Savard have been stayed until the Court of Appeal renders its judgment in Corneau.

Note that parallel applications were granted in two other proceedings: Québec v Bouchard, 2016 QCCS 4392 & Québec v Desbiens, 2016 QCCS 4393