SASKATCHEWAN MÉTIS HUNTING CASE RESERVED FOR JUDGMENT

A test case involving two Métis men from northwest Saskatchewan was argued in Meadow Lake Provincial Court on February 6 & 7, 2001, with the decision to be handed down on Friday, August 31, 2001. Mr. Clem Chartier represented the two Métis Defendants, and Mitch McAdam represented the Crown.

Mervin Maurice and Walter Gardiner of Sapwagamik, currently living in Meadow Lake were charged with hunting at night with a light contrary to s.11.1(3) of the Saskatchewan Wildlife Regulations which was adopted by the province in February 1998 following five meetings throughout the province (Beauval, Prince Albert, Yorkton, North Battleford & Regina) in January 1998 between SERM and the Métis. The Regulation was adopted to deal specifically with the night hunting rights of the Indian and Métis peoples in Saskatchewan, which the Métis were then exercising by virtue of the Grumbo case.

Mr. Gardiner had moved he and his family to Meadow Lake around 1995/96 in order for this children to attend school, while maintaining his house in Sapwagamik to which he and this family return for Christmas and summer holidays. Mr. Maurice had moved he and his family to Meadow Lake several days before the incident for the same reasons. The evidence disclosed that they continued to use their traditional territory for hunting, fishing and trapping purposes since moving to Meadow Lake. Both Defendants are descendants of the Métis who received scrip at Ile a la Crosse in 1906. Both Defendants are also related to Dennis Daigneault of Turnor Lake, Saskatchewan, one of the Defendants in the Morin & Daigneault case in which the Court of Queen's Bench in 1997 upheld the Aboriginal fishing and hunting rights of the descendants of the 1906 Métis scrip takers from Ile a la Crosse and La Loche.

As the Morin & Daigneault case already set a precedent for the Métis of northwest Saskatchewan, its application in this case played a central role. Clearly, both Wally Gardiner and Mervin Maurice should be able to benefit from that case, as they are direct descendants of the Métis who received scrip at Ile a la Crosse in 1906. However, SERM has decided to apply four (4) criteria drafted by the Department of Justice constitutional law branch to determine which Métis in northern Saskatchewan they will allow to hunt and fish under Morin & Daigneault without charges being laid. Those four criteria are: Must demonstrate Métis identity; Must reside permanently in northern Saskatchewan, north of the NAD line; Must have a longstanding connection to that particular northern community; and Must be living a traditional lifestyle or be living off the land.

The judge in this case will have to determine whether these four criteria are a correct interpretation of the Morin & Daigneault case. In particular, the fourth criteria, that one must be living a traditional lifestyle or be living off the land, if allowed to stand, would strip thousands of northern Métis of their s.35(1) Aboriginal hunting and fishing rights, as a SERM officer testified that only five (5) to ten (10) percent (%) of the Métis in northern Saskatchewan would fit that criteria. He also stated that if the Aboriginal hunting and fishing right extended province-wide, that less than one (1) percent (%) of the Métis within the province would fit that criteria. Essentially, a Métis person has to live in the bush hunting, trapping and fishing on a full-time basis before SERM and the Department of Justice will recognize their Aboriginal harvesting rights. In other words, if a Métis has a job, or a business, or is in a training program, or attending high school, or receiving welfare or Old Age Pension or Employment Insurance, he or she cannot exercise their constitutionally protected Aboriginal right to hunt and fish.

If the court accepts that Mr. Maurice and Mr. Gardiner have established that they have an Aboriginal right to hunt under the Morin and Daigneault case, then there are further arguments to be made. The first argument is that the Métis fall within the term "Indian" contained in paragraph 12 of the Natural Resources Transfer Agreement (NRTA) 1930 which gives constitutional protection and enables the Indians of the province to hunt, trap and fish for food at all times of the year on all unoccupied provincial Crown lands. This was the issue before the Courts in the Grumbo case. In that case, the Court of Queen's Bench sitting in Yorkton agreed that the Métis fell within the term "Indian" in the NRTA. As a result, the Métis throughout the province were able to hunt and fish for food without the requirement of a licence. At that time, this also included hunting at night with lights. Upon appeal to the Saskatchewan Court of Appeal, the Court of Appeal in May 1998 decided that they needed more information before they could make a decision and sent the case back for a new trial. The charge was later stayed, so no decision was ever made. The Court of Appeal stated that before they could decide if the Métis were included in the term "Indian" in the NRTA 1930, it first had to be established that the Métis had a hunting right in 1930, which was then meant to be included in the 1930 protection clause (paragraph 12).

As the Morin and Daigneault case has established that the Métis of northwest Saskatchewan continue to have an existing Aboriginal right to hunt and fish, which right was not extinguished in 1906, it is clear that such right existed in 1930 at the time of the passage of the NRTA 1930. Having passed the first part of the Grumbo test, the provincial court judge has been asked to make a ruling as to whether the Métis fall within the term "Indian", as was so found in 1996 by the Court of Queen's Bench in the Grumbo case. Even if the provincial court judge so finds, it will still have to be determined if this includes the right to hunt at night with a light, since the province passed the new regulation in February 1998 while the Métis were still exercising hunting rights under the Grumbo case.

If the provincial court judge decides that the Métis do not fall within the term "Indian" in paragraph 12 of the NRTA 1930, a further argument was made that because the Métis fall within the term "Indian" in s.91(24) of the Constitution Act, 1867 it is only the federal government which can pass hunting legislation which affects the Métis, and therefore the provincial regulations cannot apply. In this case, the Crown has admitted that the Métis fall within the term "Indian" in s.91(24) which is contained in that section of the Constitution which assigns jurisdiction to the federal government over certain matters, including "Indians and the lands reserved for the Indians".

If the Métis were also included in the term "Indian" in paragraph 12 of the NRTA 1930, the province would be able to legislate with respect to the Métis, as the NRTA amended the division of powers to enable the province to enact wildlife legislation with respect to Indians (which in the generic [wide] sense in s.91(24), includes the Métis). Again, in order to get around the argument that provincial laws of general application will apply to the Métis, the trail judge has to find that the Métis Defendants have a s.35(1) Aboriginal right to hunt.

If the trial judge finds that the provincial wildlife legislation applies to Métis by its own force, even if the Métis are included in s.91(24), and even if the two Métis Defendants have a s.35(1) Aboriginal right to hunt, their final argument will be that the night hunting regulation infringes their Aboriginal hunting right by denying them the right to use a light to hunt at night, and that this infringement has not been justified.

The Crown at this stage has argued that, based on cases from outside Saskatchewan, banning the use of lights to hunt at night does not infringe the hunting right, based on the issue of safety. The Crown has also argued that other cases from outside the province, while agreeing that there is an infringement, have ruled that such infringements are justified based on the issue of safety. In this particular case, the Defence has argued that the regulation surely can't be based on safety, as the regulation specifically states that Indian Reserves are exempted from the regulation, and therefore hunting at night with a light can take place within Indian Reserve boundaries, but not outside. The Defence argued that, if it is safe to hunt at night with a light within an Indian Reserve, then surely it is equally safe to hunt at night with a light in the traditional territory where the two Defendants were hunting, as there were no dwellings or persons living for miles around.

All of these issues may be dealt with by the trial judge when he delivers his judgment on August 31, 2001 at the provincial court in Meadow Lake, Saskatchewan.