In the recent decision R. v. Goodon, 2008 MBPC 59, the Provincial Court of Manitoba dismissed a charge of unlawful possession of wildlife against the accused on the basis that he belonged to a Métis community that held an aboriginal right to hunt for food in the area. The case is significant to natural resource developers as it provides guidance on how a court may define a "Métis rights-bearing community" in the context of determining whether the government has adequately fulfilled its duty to consult with an aboriginal community whose rights may be impacted by a project. Of note is that the case appears to take a very broad view of what constitutes a contemporary "Métis community." Project approvals are at risk if the government fails to fulfill its duty.
On October 19, 2004 Mr. Goodon shot and killed a ringneck duck at or near Turtle Mountains in southwest Manitoba. He was charged with unlawful possession of wildlife contrary to section 19 of the Wildlife Act as he did not hold a valid hunting licence. Mr. Goodon claimed that he was entitled to hunt under the authority of a harvesting card issued by the Manitoba Métis Federation (MMF).
In determining the constitutional question of whether section 19 of the Wildlife Act had any force or effect in the circumstances, the court applied the test set out by the Supreme Court of Canada in R. v. Powley, (2003) SCC 43 (Powley). In the Powley decision, the court confirmed that Métis hunting rights are affirmed and protected under section 35 of the Constitution Act. However, to be entitled to those rights, an individual must establish that he belongs to a rights-bearing Métis community entitled to exercise the traditional site-specific practice claimed. In particular, the practice in question must have been exercised prior to effective European control and must be continued today.
Characterization Of The Right Practiced By The Historic Rights-Bearing Community
As the right being claimed must be site-specific, the court first characterized the right being asserted by the accused as "the right to hunt for food in the environs of the Turtle Mountains in the [sic] southwestern Manitoba." On the evidence before it, the court found that the Turtle Mountains and surrounding area comprise a distinct geographic area that had been used by the Métis of southern Manitoba for certain traditional practices, including hunting, well before effective European control. The court rejected the suggestion that the hunting right claimed should be much more extensive and should include the entire area historically described by the fur traders as the "Northwest."
In identifying the historical rights-bearing community, the court found that, within the Province of Manitoba, this community "includes all of the area within the present boundaries of southern Manitoba from the present day City of Winnipeg and extending south to the United States and northwest to the Province of Saskatchewan including the area of present day Russell, Manitoba."
Identification Of The Contemporary Rights-Bearing Community
Another important aspect of the decision is the court's conclusion that there remains a contemporary, regional community in southwest Manitoba that continues many of the traditional practices and custom practised by its ancestors. In drawing this conclusion, the court appears to have been persuaded by evidence led by the MMF that a Métis community can be present at more than one settlement in a particular region and that the Métis regional community is not defined by the boundaries of a single settlement. While the Métis community had changed since the time of European control, the court observed that the Métis community in Manitoba remains well-organized and vibrant and that many of its approximately 40,000 members reside in southwestern Manitoba. The evidence demonstrated that members of this community still live in the area of Turtle Mountain and are generally dependent on the harvesting of the land to provide their food.
As Mr. Goodon could establish that this modern day Métis community continued to practice hunting in the area of Turtle Mountains, and that he was an accepted member of this community, the court held that he was entitled to his community's aboriginal right to hunt for food in the area.
Implications Of Case
The Crown's duty to consult with Aboriginal peoples arises whenever the federal or provincial governments is contemplating taking action that may infringe on an aboriginal or treaty right. As many resource projects are being developed on or near the traditional lands of aboriginal peoples, the environmental and regulatory approvals for those projects are at risk if the Crown fails to consult adequately with an aboriginal community whose rights may be impacted.
While the Powley decision made it clear that a Métis community could hold an aboriginal right to hunt, there has been uncertainty ever since it was rendered as to how to identify the rights-bearing Métis community and how large an area could be claimed. This case suggests that it may be a regional Métis community that holds the aboriginal rights in a specific area and that it is the regional community that must be consulted if the government is considering approving the development of a resource project that may impact those rights. Resource developers are well-advised to take a broad, inclusive approach by requesting information as to how the Métis community is defined in the area of its project and how its rights may be potentially impacted.
Shawn Denstedt is a partner in the firm's Calgary office. His practice focuses on environmental, regulatory and aboriginal law issues, and includes experience in a variety of industries, including oil and gas, mining, chemical companies and utilities. JoAnn Jamieson is a senior associate in the firm's Calgary office. Her practice focuses on project-related issues in the energy sector with a specialization in regulatory, environmental and aboriginal law matters.
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