The rights of the people of the Métis Nation has long been a topic of debate. The Métis Nation, as a young Aboriginal nation indigenous to North America, possessed all the rights held by other Aboriginal nations. In practice however, the newly created government of Canada in 1870 dealt with the Métis Nation differently from the other Aboriginal nations.

While Treaties were entered into with the Indian nations within Western Canada, the federal government attempted to extinguish the Aboriginal title of the Métis by issuing scrip to the Métis individually. By that action, the government of Canada maintains that the rights of the Metis have been dealt with, and that such rights have been extinguished.

After the failure of the Charlottetown Accord, along with the companion Métis Nation Accord in the fall of 1992, the leadership of the Métis in Saskatchewan responding to the advice of Métis Elders, decided to beginning defending the rights of Métis people in the courts. There was also a decision made to file a statement of claim challenging the validity of the scrip system as a legitimate means of extinguishing the Aboriginal title of the Métis. At a general assembly of the Métis Society of Saskatchewan in the summer of 1993, the assembly, after reviewing a number of options decided to limit the geographic scope of the court challenge to northwest Saskatchewan. This decision was based on a number of factors including a smaller geographic area; scrip distributed most recently (1906); less research required, thereby costing less; and finally, that land was not available in northern Saskatchewan at that time, as the area was not surveyed.

The Statement of Claim was filed in Court of Queen's Bench in Saskatoon in May 1994. Through the Statement of Claim filed on behalf of the Métis National Council, the Métis Nation of Saskatchewan and the Métis Locals of Northwest Saskatchewan, the plaintiffs sought three declarations: a declaration that the Aboriginal title to the lands and resources of the Métis of that region was not extinguished by the 1906 scrip distribution; a declaration that the Aboriginal right to hunt, trap, fish and gather was not extinguished; and a declaration that the inherent right of self-government was not extinguished.

The action was filed against both the federal government and the government of Saskatchewan, both of whom have filed statements of defence claiming that those rights were validly extinguished in 1906 by the distribution of scrip. No further court action has taken place since 1994.

Beginning in 1998, funding was secured from both the federal and provincial governments which has enabled archival research to take place. A research contract was entered into with the University of Alberta to undertake the required research under the direction of Proffesor Frank Tough, and is still ongoing. It is hoped that the legal process can be proceeded with by the beginning of 2003.

While this process was unfolding, Bruce Morin and Dennis Daigneault, two young Métis men from Turnor Lake, in the claim area, were charged with a number of fishing violations. Their case was defended in early 1995 in provincial court in Buffalo Narrows. A decision acquitting the two defendants was rendered in April 1996, on the basis that the scrip distributed in 1906 did not extinguish their aboriginal right to fish, which right was protected by s.35(1) of the Constitution Act, 1982. On appeal, the Court of Queen's Bench in Battleford in September 1997 upheld that decision. The Crown did not appeal the case any further.

This case was overshadowed by the Grumbo case out of Yorkton. In Grumbo, a Yorkton area man, John Grumbo (Grandbois) was charged under the Wildlife Act as a non-Indian receiving a deer from an Indian. His defence was based on paragraph 12 of the Natural Resources Transfer Agreement 1930 which guaranteed "Indians" the right to hunt on unoccupied crown lands. If Mr. Grumbo was successful in arguing that Métis were included in the term "Indian" in the NRTA 1930 (which is part of Canada's Constitution) then he could receive wild meat from other Indians.

His trial in provincial court in 1995 ended with a conviction, however on appeal to the Court of Queen's Bench sitting in Yorkton, in August 1996 his acquittal was overturned. With that decision, anyone within Saskatchewan who could prove he/she was Métis could hunt without a license. This included Métis from surrounding provinces. Up until February 1998, this also included the right to hunt at night with a light.

The Crown appealed this decision to the Saskatchewan Court of Appeal, and in May 1998 the Court of Appeal overturned the Queen's Bench decision by a 2-1 decision. The one judge ruled that Métis do not fall under the term Indian and the trial judge's conviction should be upheld. The other two judges ruled that they could not decide the case without further evidence. They held that paragraph 12 did not create new rights in 1930, and in order to be covered by the term Indian, it first had to be determined whether the Métis had hunting rights in 1930. As a result the case was sent back for a new trial. The case did not move to trial as the Crown stayed the case, and did not proceed within the one-year time limit in which it could do so.

Therefore, in May 1998, the only remaining court case was the northwest Morin & Daigneault case which upheld the s.35(1) Metis Aboriginal right to fish. Based on these two decisions, Saskatchewan Environment and Resource Management (SERM) issued a new policy which called for charges for Métis people living outside the Northern Administration District (NAD) line if caught hunting or fishing without a license issued by the provincial government. To date, there is no court decision which has dealt with the scrip extinquishment issue south of the NAD line, although there are two potential test cases that may do so.

Further, while there is an assumption by many that all Métis living in the north can hunt and fish for food, this is not the case. SERM has established a policy, which states that you must reside permanently in the north, and that you must be living off the land. That is, you cannot have a job, cannot be in a training program, cannot be living on welfare or old age pension, and so forth. This criteria is being challenged in the case of Maurice and Gardiner which decision is being rendered on August 31, 2001 in Meadow Lake Provincial Court.

Who are the Métis?

In dealing with Métis rights in the courts, the questions that arise more and more are: "How does one determine who is Métis?" and "what is the definition of Métis?" To date we have been successful in persuading the judges not to adopt a definition. We maintain that it is up to the Métis people/nation to come up with that criterion.

In this connection, through the Métis National Council we have been undertaking extensive consultations in order to come up with a Métis Nation-wide definition, which it is expected will be accepted by the courts. However, if we don't achieve a consensus relatively soon, the courts likely will impose a definition.

For further information, view the MNC discussion paper.