PART I - STATEMENT OF FACTS

1. The Intervener, Aboriginal Legal Services of Toronto Inc. ("ALST"), accepts and relies upon the facts as set out by the Respondents in their factum.

2. ALST is a non-profit, multi-service legal agency that provides services to Canada's largest urban Aboriginal community. Members of the Toronto Aboriginal community include status and non-status Indians, Métis and Inuit persons. Many members of the Toronto Aboriginal community originate from numerous other Aboriginal communities across Ontario and Canada, including historic Métis communities.

PART II - POINTS IN ISSUE

3. ALST will argue the following:

1. With respect to the purpose for including the Métis in s. 35 of the Constitution Act, 1982:

(i) Métis communities have long and distinct histories.

(ii) The Métis are distinct and autonomous Aboriginal peoples and their rights must be given meaningful content.

(iii) Section 35 provides the constitutional framework through which the fact that distinct Métis peoples lived on the land, with their own practices, traditions and cultures, is both acknowledged and reconciled with the sovereignty of the Crown.

2. With respect to the appropriate test for determining Métis Aboriginal rights:

(i) An Aboriginal right exists where the right claimed is a practice, custom or tradition that was integral to the distinctive Métis society, prior to the establishment of effective control by European-based cultures.

(ii) The Aboriginal rights of the Métis derive from their existence as distinct Aboriginal peoples and not from their Indian ancestors.

(iii) An examination of the continuity of Métis communities must be approached with flexibility so as to permit their evolution over time.

(iv) Métis Aboriginal rights are exercisable by those who self-identify as Métis and are accepted as Métis by the relevant Métis community, on the basis of criteria and procedures determined by that community.

PART III - ARGUMENT

1. What is the purpose for including the Métis in s. 35 of the Constitution Act, 1982?

4. This Honourable Court has held that an analysis of the purposes underlying s. 35(1) of the Constitution Act, 1982, and of that provision's definition and scope, must be informed by a generous and liberal interpretation. Further, because the Crown has a fiduciary obligation to Aboriginal peoples, where there is any doubt or ambiguity with regards to what falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of Aboriginal peoples. It is submitted, therefore, that s. 35(1) must be interpreted in a manner that does not render the rights of the Métis, who are specifically recognized under s. 35(2), meaningless and empty. Section 35(1) represents "a solemn commitment that must be given meaningful content."

R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1106h-j, 1107-1108.

R. v. Van der Peet, [1996] 2 S.C.R. 507 at 536-537, paras. 22 to 25; Appellant's Book of Authorities ("ABA"), Vol. 1, Tab A1.

(i) Who are the Métis?

5. The present case concerns the Métis community at Sault Ste. Marie. The Sault Ste. Marie Métis community has a long and distinct history and is recognized as part of the larger Métis Nation in Canada. While there are other Métis communities and collectivities in Canada which may very well have claims to Aboriginal rights under s. 35 of the Constitution, as either Métis or as other Aboriginal peoples within the meaning of s. 35(2), ALST's submissions in this case are limited to the context of historic Métis communities.

Canada, Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities ("RCAP"), vol. 4, at 220; Appellant's Appeal Book ("AAB"), Vol. III, Tab 41, at 303.

C. Bell, "Who are the Métis People in Section 35(2)?" (1991) 29 Alta L.R. 351 at 379.

6. The Report of the Royal Commission on Aboriginal Peoples ("RCAP") clearly recognizes the distinctiveness of the Métis and, in particular, the distinctiveness of the Métis community at Sault Ste. Marie:

It is indisputable that the distinct Métis communities of Ontario… have long and unique histories, as well as indisputable claims to recognition of their Aboriginal origins and entitlements. The Métis community at Sault Ste. Marie, a hub of early fur-trade activity, has a particularly long and eventful history. It would appear, in fact, that the area was largely under Métis control from the late seventeenth to the mid-nineteenth century.

RCAP, vol. 4, at 259-260; AAB, Vol. III, Tab 41, at 340-341.

7. At trial, Vaillancourt J. recognized that, although the Métis shared many customs, practices and traditions of the Ojibway, they were distinctive and separate from the Ojibway. He found that the Métis were visually, culturally and ethnically distinct.

Reasons for Judgment of Vaillancourt J., at 20; AAB, Vol. VIII, Tab 59, at 1020.

(ii) The Métis are included in s. 35 as distinct and autonomous Aboriginal peoples

8. The existence of the Métis in Canada, as distinct and independent Aboriginal peoples, is clearly reflected in the wording of s. 35 of the Constitution wherein the Métis are included as one of the "aboriginal peoples of Canada". It is submitted that this specific recognition and affirmation in s. 35 of the Aboriginal rights of the Métis peoples of Canada, as distinct Aboriginal peoples, is a solid commitment that must be given meaningful content.

Sparrow, at 1105d.

9. ALST therefore disagrees with the Appellant's submission that the s. 35 rights of the Métis should be determined through an examination of the practices of their Indian ancestors and restricted to those practices. It is submitted that the Appellant's position is irreconcilable with the clear recognition of the Métis as distinct Aboriginal peoples in s. 35(2) of the Constitution.

Appellant's Factum, at 15, 16, 22-24 paras. 33, 36, 54,55,59.

10. It is submitted that the Métis are not simply individual "persons of mixed ancestry" as characterized by the Appellant but have their own unique histories and cultures as distinct Aboriginal peoples. It is also submitted that the constitutionally-protected rights of the Métis in Canada, as Aboriginal peoples, are unique and can not be easily compared to the manner in which the rights of Aboriginal persons are recognized in other countries.

RCAP, vol. 4, at 199, 202; AAB, Vol. III, Tab 41, at 283, 286.

Appellant's Factum, at 11, para. 27.

(iii) Prior occupation and reconciliation

11. This Court has held that s. 35(1) provides the constitutional framework through which the fact that Aboriginal peoples lived on the land in distinctive societies, with their own practices, traditions and cultures, is both acknowledged and reconciled with the sovereignty of the Crown.

Van der Peet, at 539, para. 31, 547-548, para. 43; ABA, Vol. 1, Tab A1.

12. In addition, s. 35 seeks to reconcile Aboriginal claims "with European settlement and sovereignty" in a way that provides "the basis for a just and lasting settlement of aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with aboriginal people."

Van der Peet, at 628, para. 230, 629, para. 232, per McLachlin J.

Sparrow, at 1105i-1106b.

13. It is submitted that O'Neill J. of the Superior Court of Justice accurately explained the purposes underlying the specific inclusion of the Métis in s. 35(2) of the Constitution Act, 1982, in light of the history of the Métis as a distinct Aboriginal people in Canada, as follows:

The purposes underlying the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 relate to both prior occupation, and reconciliation. What, however, are the reasons underlying the protection that s. 35(1) gives, and what is the basis for the special protection that aboriginal peoples generally, and Métis people specifically, have within Canadian society? Surely, at the heart of s. 35(1), lies a recognition that aboriginal rights are a matter of fundamental justice protecting the survival of aboriginal people, as a people, on their lands. The Métis have aboriginal rights, as people, based on their prior use and occupation as a people. It is a matter of fairness and fundamental justice that the aboriginal rights of the Métis which flow from this prior use and occupation, be recognized and affirmed by s. 35(1) of the Constitution Act, 1982.

Reasons for Judgment of O'Neill J., at 6, para. 16; AAB, Vol. VIII, Tab 60, at 1047.

14. ALST agrees with the Respondents' submission that the Aboriginal rights recognized and affirmed by s. 35(1), for the Métis, are also to be understood as the means by which the Constitution recognizes their prior occupation of the land as a distinct Aboriginal people, and by which that prior occupation is reconciled with the assertion of Crown sovereignty.

Respondents' Factum, at 13, para. 42.

2. What is the appropriate test for determining the Aboriginal rights claimed by the Métis?

15. The RCAP Report recognizes that the explicit inclusion of the Métis in section 35(2) of the Constitution Act, 1982 "establishes conclusively that Métis Aboriginal and treaty rights are autonomous rights" and that "the law does not subordinate Métis rights to First Nation or Inuit rights". Basic constitutional principles "simply leave no room for doubt that Métis Aboriginal rights are independent from and equal in status to those of other Aboriginal peoples".

RCAP, vol. 4, at 217-219, 281-282, 297; AAB, Vol. III, Tab 41, at 300-302, 362-363, 378.

16. Section 35 of the Constitution makes no distinction, and creates no hierarchy, between the rights of different Aboriginal peoples recognized by that section. Although the rights are "independent and coequal in status" this "does not imply that those rights are necessarily the same for all Aboriginal peoples" as Aboriginal peoples have distinct practices, customs and traditions. It follows that the recognition of the substantive rights of distinct groups does not require the uniform application of a single legal test. There may be some requirements, such as those relating to the time of European contact that are imposed on Indian and Inuit claims, that need to modified in order to reflect the specific purposes for which the Métis are included in s. 35 and give proper meaning to their rights. It is submitted that, at the same time, there cannot be any justification for requiring Métis claimants to satisfy additional legal requirements that would render their Aboriginal rights meaningless and empty. Such an approach would run counter to the clear recognition that Aboriginal rights include Métis rights on an autonomous yet equal basis.

RCAP, vol. 4, at 285; AAB, Vol. III, Tab 41, at 366.

R. v. Gladstone, [1996] 2 S.C.R. 723, at 769, para. 65.

17. Any test for identifying Métis Aboriginal rights must therefore respect the distinctive experience of the Métis peoples. It is submitted that, in the context of an historic Métis community, an Aboriginal right exists where the right claimed is a practice, custom or tradition that was integral to the distinctive Métis society, during the time prior to the establishment of effective control by European-based cultures, and has continuity with the practices, customs or traditions of the contemporary Métis community.

(i) What is the relevant time for determining the existence of the right claimed?

18. In Van der Peet, which dealt with a claim to an Aboriginal right by a status Indian, the majority held that the time period that should be considered is the period "prior to contact" between Aboriginal and European societies. In that context, it was held that courts must look to the pre-contact period in identifying Aboriginal rights because it is the fact that distinctive Aboriginal societies lived on the land prior to the arrival or Europeans that underlies the rights in question. Looking to the time of contact simply addresses "the problem of distinguishing between distinctive, integral aboriginal practices, customs and traditions and those influenced or introduced by European contact."

Van der Peet, at 554-555, para. 60; ABA, Vol. 1, Tab A1.

R. v. Adams, [1996] 3 S.C.R. 101, at 128, para. 46; ABA, Vol. 1, Tab A11.

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at 1098, para. 145.

19. Obviously, a strict application of the "prior to contact" concept to the Métis would render their constitutionally-protected rights meaningless, since the Métis did not exist as a people prior to European contact. It is clear, therefore, that the first approach proposed by the Appellant, that the "prior to contact" test be applied to the Métis, without modification, must be rejected.

Appellant's Factum, at 9-15, paras. 22-32.

20. In Van der Peet this Honourable Court clearly acknowledged that the Métis have Aboriginal rights. The majority also anticipated that a different approach may be necessary in order to recognize the rights of the Métis, as opposed to the rights of other Aboriginal peoples who existed as distinctive societies before the arrival of Europeans, having regard to the distinct reasons for the inclusion of the Métis in s. 35:

Although s. 35 includes the Métis within its definition of "aboriginal peoples of Canada", and thus seems to link their claims to those of other aboriginal peoples under the general heading of "aboriginal rights", the history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal people in Canada. As such, the manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined… The fact that, for other aboriginal peoples, the protection granted by s. 35 goes to the practices, traditions and customs of aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to that question [emphasis added]

Van der Peet, at 558, para. 67; ABA, Vol. 1, Tab A1.

21. McLachlin J. (as she then was), in dissent, held that "Aboriginal rights find their source not in a magic moment of European contact, but in the traditional laws and customs of the aboriginal peoples in question." McLachlin J. stated that "[t]he governing concept is simply the traditional customs and laws of people prior to imposition of European law and customs" and proceeded to set out an analysis that accommodated the specific inclusion of the Métis in s. 35 of the Constitution Act:

My concern is that we not substitute an inquiry into the precise moment of first European contact - an inquiry which may prove difficult - for what is really at issue, namely the ancestral customs and laws observed by the indigenous peoples of the territory… the better question is what laws and customs held sway before superimposition of European laws and customs. …in parts of the west of Canada, over a century elapsed between the first contact with Europeans and imposition of "Canadian" or "European" law. During this period, many tribes lived largely unaffected by European laws and customs. I see no reason why evidence as to the laws and customs and territories of the aboriginals in this interval should not be considered in determining the nature and scope of their aboriginal rights. This approach accommodates the specific inclusion in s. 35(1) of the Constitution Act, 1982 of the aboriginal rights of the Métis people…

Van der Peet, at 634-635, paras. 247-248, per McLachlin J.; ABA, Vol. 1, Tab A1.

22. Similarly, L'Heureux-Dubé J., in dissent, noted that s. 35(2) specifically includes the Métis peoples of Canada and held, therefore, that the "protection should not be limited to pre-contact or pre-sovereignty practices, traditions and customs". L'Heureux-Dubé J. was also critical of reliance on the date of sovereignty as a "cut-off" for Aboriginal practices, traditions and customs, characterizing it as an "arbitrary" date that, contrary to the perspective of Aboriginal peoples, overstates the effect of the arrival of Europeans on their communities.

Van der Peet, at 596-598, 599-601, paras. 166-167, 169, 171-175, per L'Heureux-Dubé J.

23. In addressing the Aboriginal rights of distinct Métis societies that arose subsequent to contact, it is submitted that it is necessary to modify the Van der Peet approach in order to give proper meaning to the constitutional protection of Métis rights. Any test for determining Métis rights must be formulated in light of the distinct reasons for their inclusion in s. 35, as a distinct people, with their own identity, who occupied the land at an early date, after European contact, and the means by which that prior occupation is reconciled with the sovereignty of the Crown.

24. In the present case, the trial judge held that "[t]he pre-contact concept must be applied with enough flexibility to give effect to the purpose of preserving the culture of Aboriginal peoples" and noted that there is "going to be a time of transition when a society evolves in response to a more dominant societal group." The trial judge then considered "whether hunting for food was a practice that was integral to the Métis society at the time when effective control of the area was taken over by the European based culture."

Reasons for Judgment of Vaillancourt J., at 24-25; AAB, Vol. VIII, Tab 59, at 1024-1025.

25. It is submitted that the trial judge's approach, of viewing the practices, customs and traditions of the Métis society at the time when effective control of the area was taken over by the European based culture, provides a meaningful rationale that is most consistent with the purposes underlying the inclusion of the Métis in section 35(2) of the Constitution Act, 1982 as a distinct and autonomous people. This approach is also in keeping with the above analysis of McLachlin J., in Van der Peet, of considering the laws and customs of Aboriginal peoples at a time when they "lived largely unaffected by European laws and customs". This analysis also provides for the reconciliation of the prior occupation of the Métis with European settlement and sovereignty.

Van der Peet, at 628, 635, paras. 230, 248, per McLachin J.; ABA, Vol. 1, Tab A1.

26. Reliance on arbitrary dates such as a formal assertion of sovereignty should be rejected as inconsistent with a purposive approach to Aboriginal rights. Such arbitrary dates ignore the Aboriginal perspective, in particular, that a formal assertion of sovereignty may have no tangible effect on the Aboriginal society in question. It is submitted that there is no purposeful rationale for choosing a date such as a formal assertion of sovereignty as a relevant time for considering Aboriginal practices, customs or traditions in the context of Aboriginal rights claims.

Appellant's Factum, at 15, para 34.

27. ALST agrees with the Respondents' submission that the relevant time in the present case is the time just prior to 1850. This is consistent with the time relied on by the parties in the courts below. It reflects a time when the Crown authorized non-Aboriginal third party activities that interfered with the land-related aspects of the way of life of the Métis peoples then in possession and when control was shifting away from the Aboriginal peoples.

Judgment of the Ontario Court of Appeal, at 44, paras. 95-96;AAB, Vol. VIII, Tab 62, at 1123.

Respondents' Factum, at 13, 29-30, paras. 43, 100.

28. However one characterizes the relevant time to consider in assessing Métis rights, the underlying reasons for choosing an appropriate time should reflect a purposive and meaningful interpretation that recognizes that, subsequent to contact with Europeans, distinct Métis societies, with their own laws and customs, existed "largely unaffected by European laws and customs."

Van der Peet, at 635, para. 248, per McLachlin J.; ABA, Vol. 1, Tab A1.

(ii) The Aboriginal rights claimed by the Métis derive from their existence as an Aboriginal people and not from their Indian ancestors

29. The Appellant submits, as an alternative approach, that the existence and nature of distinct Métis communities could be assessed at the time of the Crown's assertion of sovereignty. However, the Appellant maintains that Métis rights should be restricted to "the practices of their aboriginal ancestors". That is, the Appellant would require demonstration that the historic Métis community "came into being prior to the assertion of Crown sovereignty", that the practice in question was integral to the distinct culture of the historic Métis community, and that the practice was a "pre-contact" practice of the Indian ancestors of the historic Métis community.

Appellant's Factum, at 10, 14, 15, 23, 24, 37, paras. 23, 32, 34, 55, 59, 93.

30. It is submitted that the Appellant's proposed approach is inconsistent with the general principles developed by this Court in cases such as Van der Peet and Adams and contrary to the specific protection of the Aboriginal rights of the Métis in the Constitution. The Appellant's approach fails to recognize the distinctiveness of the Métis as well as the autonomous nature of their constitutionally-protected rights. Métis Aboriginal rights, particularly those in relation to an historic Métis community, are not dependent upon or subordinate to the rights of other Aboriginal peoples. It is submitted that it would be inconsistent with a purposive approach to the specific protection of Métis Aboriginal rights in the Constitution to limit their scope to the "pre-contact" practices of their Indian ancestors.

31. The Appellant's proposed approach is also unnecessarily complicated. It would be inconsistent with principles of constitutional interpretation to subject Métis rights to such onerous and complicated tests that are not required of other Aboriginal peoples. Such restrictive interpretations should be avoided as they could render constitutionally-protected Métis rights meaningless, particularly when coupled with reliance on an early date, such as a formal assertion of sovereignty, that has no meaningful effect on the Aboriginal society in question.

(iii) Continuity of the Métis community

32. The Appellant asserts that the record in this appeal does not demonstrate the continuity of the Sault Ste. Marie Métis community "outside of the reserves" and that the Sault Ste. Marie Métis community does not meet "the test for continuity laid down by this Court".

Appellant's Factum, at 32, 33 and 35, paras. 78, 80 and 86.

33. ALST submits that the Appellant has approached the concept of continuity in an unduly rigid manner that is not supported by the jurisprudence. It is submitted that, to date, the focus of this Honourable Court has been with demonstrating the continuity of "practices, customs or traditions" integral to a particular Aboriginal community, as opposed to the continuity of the community itself. As most Aboriginal rights cases have dealt with the rights of status Indians, who are members of bands recognized by the Indian Act, the continuity of the community does not appear to have been in issue. Rather, the continuity of the community appears to be assumed, even though Indian Act bands do not necessarily constitute contemporary Aboriginal communities, in continuity with historic Aboriginal societies, for the purposes of exercising constitutionally-protected Aboriginal rights. In any event, it appears that no clear test for assessing the nature and continuity of an Aboriginal community claiming a right has been laid down by this Court.

Van der Peet, at 556, para. 63; ABA, Vol. 1, Tab A1.

P. Palmater, "An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of Non-Status Indians" Dal. L.J. 103 at 109.

34. Significantly, in addressing the continuity of practices, customs and traditions, this Honourable Court has held that the concept of continuity is the primary means by which a "frozen rights" approach to s. 35(1) is avoided. This Court held in Sparrow that "existing aboriginal rights" in s. 35(1) must be interpreted flexibly so as to permit their evolution over time. In Van der Peet, this Court noted that "the concept of continuity does not require aboriginal groups to provide evidence of an unbroken chain of continuity between their current practices, customs and traditions, and those which existed prior to contact":

It may be that for a period of time an aboriginal group, for some reason, ceased to engage in a practice, custom or tradition which existed prior to contact, but then resumed the practice, custom or tradition at a later date. Such an interruption will not preclude the establishment of an aboriginal right. Trial judges should adopt the same flexibility regarding the establishment of continuity that, as is discussed, infra, they are to adopt with regards to the evidence presented to establish the prior-to-contact practices, customs and traditions of the aboriginal group making the claim to an aboriginal right.

Sparrow, at 1093.

Van der Peet, at 556-557, paras. 64, 65; ABA, Vol. 1, Tab A1.

R. v. Coté, [1996] 3 S.C.R. 139, at 181, 183-184, paras. 64, 69-71

35. Further, European arrival and influence cannot be used to deprive an Aboriginal group of an otherwise valid claim to an Aboriginal right. It is submitted therefore that courts must approach the issue of continuity with flexibility, remaining sensitive to any negative impact that European influence may have had on the continuity of Aboriginal practices, customs and traditions.

Van der Peet, at 562, para. 73; ABA, Vol. 1, Tab A1.

36. It is submitted that, just as practices, customs and traditions evolve over time, so too do communities. It is submitted that Aboriginal communities, themselves, must also not be viewed as "frozen in pre-contact times". Any examination of the continuity of Aboriginal communities must therefore be approached with flexibility, to permit their evolution over time.

Sparrow, at 1093.

Van der Peet, at 555-557, paras. 62-64; ABA, Vol. 1, Tab A1.

P. Palmater, "An Empty Shell of a Treaty Promise", at 105, 115.

37. With respect to the continuity of the Sault Ste. Marie Métis community and its geographic location, Vaillancourt J. explained that "[t]he Crown has gone to great pains to narrow the issues in this trial to Sault Ste Marie proper." The trial judge found, however, "that such a limited regional focus does not provide a reasonable frame of reference when considering the concept of a Métis community at Sault Ste Marie" and that "[a] more realistic interpretation of Sault Ste Marie for the purposes of considering the Métis identity and existence should encompass the surrounding environs of the town site proper" and not be limited to it. Vaillancourt J. noted that "[i]t is not surprising considering the lifestyle of the modern Métis to find them as more visible entities in the more rural and outlying communities surrounding Sault Ste. Marie."

Reasons for Judgment of Vaillancourt J., at 18; AAB, Vol. VIII, Tab 59, at 1018.

38. Accordingly, it is submitted that, contrary to the suggestion of the Appellant, any dispersal of the Métis from the town-site of Sault Ste. Marie to the surrounding area has little bearing on an assessment of the continuity of the community in the context of an Aboriginal rights claim. In any event, this Court has held that, where "some aboriginal peoples varied the location of their settlements" or "did not settle exclusively in one location either before or after contact", this "in no way subtracts from the fact that, wherever they were settled before or after contact, prior to contact [they] engaged in practices, customs or traditions on the land which were integral to their distinctive culture." This consideration is particularly relevant in Aboriginal rights cases, such as the present, that do not concern a claim to Aboriginal title.

Adams, at 118-119, paras. 28-30.

39. Even with respect to establishing Aboriginal title, this Court has approached the concept of continuity with flexibility and with consideration of the negative influences of colonization on establishing continuity:

To impose the requirement of continuity too strictly would risk "undermining the very purpose of s. 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect" aboriginal rights to land (Coté, supra, at para. 52).

Delgamuukw, at 1103,para. 153; ABA, Vol. 1, Tab A8.

… I would not deny the existence of "aboriginal title" in that area merely because the relocation occurred post-sovereignty. In other words, continuity may still exist where the present occupation of one area is connected to the pre-sovereignty occupation of another area.

Delgamuukw, at 1130, para. 197, per La Forest J., concurring.

40. It is also submitted that, in assessing the continuity of a Métis community, courts should give appropriate consideration to the negative effects of government policy and colonization which failed to respect distinctive Métis societies. With respect to the Sault Ste. Marie Métis community, Vaillancourt J. found that the "visibility of the Métis at Sault Ste Marie waned after the treaty in 1850 and moved into the surrounding areas." It was noted that "[t]he events at Red River in 1870 signalled a time when claiming Métis status was not advantageous" and "[t]he Métis quietly became the 'forgotten people'". Their invisibility to outsiders was "caused by shame, ostracization, and prejudice."

Reasons for Judgment of Vaillancourt J., at 21; AAB, Vol. VIII, Tab 59, at 1021.

Reaons for Judgment of O'Neill J., at 16; AAB, Vol. VIII, Tab 60, at 1057.

41. In addressing the issue of whether or not there is a contemporary Métis society at Sault Ste. Marie, O'Neill J., also noted that "[i]t is not so easy to package up and describe a Métis community, as in this case, by comparison with, for example, a recognized Indian band occupying recognized reserve lands as defined under the Indian Act, R.S.C. 1985, c. I-5." Importantly, O'Neill J. also recognized that Métis communities have been negatively affected by government policy:

Given governments' treatment of Métis people, it may seldom be the case that Métis rights will be found where there is a flourishing Métis community, as opposed to one that is only now beginning to put back together aspects of its culture. This is recognized by the federal government, which admitted in its Statement of Reconciliation in 1998 that Métis people suffered at the hands of government policy:

… it is essential that we deal with the legacies of the past affecting the Aboriginal peoples of Canada, including the First Nations, Inuit and Métis.

…

As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of Aboriginal people, and by some provisions of the Indian Act. We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of Aboriginal people and nations.

To deny people access to their constitutional rights because a community may now only be beginning to put together aspects of its identity and culture is to reward the very practices that the Statement of Reconciliation admit were wrong.

Reasons for Judgment of O'Neill J., at 11-12, paras. 29-30; AAB, Vol. VII, Tab 60, at 1052-1053.

42. It is submitted that a meaningful examination of a contemporary Métis community, consistent with a purposive approach to s. 35 of the Constitution, must consider the historical realities faced by the Aboriginal peoples of Canada. Clearly past practices, particularly those of governments, have weakened the identity of Aboriginal peoples by suppressing their languages, cultures and visibility. It is submitted that the Court of Appeal was correct in stating that "the continuity test should be applied with sufficient flexibility to take into account the vulnerability and historic disadvantage of the Métis."

Judgment of the Ontario Court of Appeal, at 64, para. 136; AAB, Vol. VIII, Tab 62, at 1141.

43. The Appellant also asserts that Métis individuals were absorbed into Indian band communities, thereby constituting a break or dispersal of the Sault Ste. Marie Métis community. The question of the continuity of the community is largely a question of fact. The trial judge found that the Métis community had continued and this finding was upheld on appeal. The Court of Appeal noted, inter alia, that not all Métis moved to the reserves and there was evidence that even those who did tended to be viewed as Métis, both by the Ojibway Band members and by government officials. As noted by the RCAP Report, after 1875, the government "made a major effort to eliminate Métis people from the rolls". The Appellant's assertion also ignores the reality of the oppression faced by the historic Métis community and the very limited options that its members may have had, particularly in terms of where to reside, in the face of outside pressures.

Appellant's Factum, at 34, para. 83

Judgment of the Ontario Court of Appeal, at 61, para. 132; AAB, Vol. VIII, Tab 62, at 1140.

44. It is also submitted that individuals do not cease being Métis because they, or their intervening ancestors, became subject to the provisions of the Indian Act and its limited, statutory definition of identity. ALST agrees with the Court of Appeal's conclusion that it was legally open to the Métis to accept treaty benefits without thereby surrendering their Aboriginal rights as the Aboriginal rights of the Métis community were otherwise maintainable.

C. Bell, "Who are the Métis People in Section 35(2)?", at 371-372.

Judgment of the Ontario Court of Appeal, at 65, para. 139; AAB, Vol. VIII, Tab 62, at 1142.

(iv) Who is entitled to exercise the right claimed?

45. It is well-recognized that Aboriginal rights, including Métis Aboriginal rights, are collective rights that are only exercisable by members of the particular Aboriginal community. It is submitted that this Court has not had to deal with complex questions concerning which members of an Aboriginal community can exercise Aboriginal rights, as most Aboriginal rights cases have dealt with status Indians who are members of Indian Act bands. It is submitted that a band does not necessarily represent the community for the purpose of exercising Aboriginal rights, however, band membership is often taken to be sufficient evidence of membership in a particular Aboriginal community.

P. Palmater, "An Empty Shell of a Treaty Promise", at 109.

Genealogical connection and community attachment

46. The Appellant takes the position that, in order for an individual to exercise Métis Aboriginal rights, he or she must demonstrate a sufficient connection to the Métis community, including ancestral ties to the historic Métis community, generally requiring a genealogical link to or adoption into the historic community. The Appellant also asserts that the degree of ancestral connection must be more than trivial. In this regard, the Appellant appears to be arguing that one must have sufficient Aboriginal blood quantum in order to exercise Métis rights.

Appellant's Factum, at 41, 43, 45, 46, paras. 102, 106, 111, 112, 114.

47. In Simon v. The Queen, this Court held that, for the purpose of establishing a treaty right to hunt, membership in a particular Indian band was sufficient to prove a connection to the those originally covered by the treaty. It was not necessary to prove that one was a direct descendant of a member of the original Indian band covered by the treaty. The Court noted that the band did not keep written records and that to impose an impossible burden of proof would, in effect, render nugatory any present day treaty right to hunt.

Simon v. The Queen, [1985] 2 S.C.R. 387 at 407b-408c; ABA, Vol. 1, Tab A14.

48. Similarly, ALST submits that requiring proof of a genealogical tie to the original Métis inhabitants of the relevant community places too heavy a burden on Métis applicants and should not form the basis of any strict legal test that could arbitrarily restrict the exercise of constitutionally-protected Aboriginal rights. The difficulty of establishing genealogical connections is largely the result of the absence of government records and widespread prejudice against those who identified as Métis. The trial judge recognized that demonstrating a genealogical connection was problematic as it can require individuals to conduct expensive genealogical research into their origins. The particularly poor documentation of Métis ancestry poses additional challenges. ALST submits that it would be wrong to deny people access to their constitutional rights because past prejudicial policies and practices succeeded, for a period of time, in disrupting the development of Métis communities and impacted on Métis identity.

RCAP, vol. 4, at 220; AAB, Vol. III, Tab 41, at 303.

Reasons for Judgment of Vaillancourt J., at 12-13, 14, 16-17, AAB, Vol. VIII, Tab 59, at 102-1013, 1014, 1016-1017.

49. ALST also submits that any blood quantum requirements should be rejected as contrary to the purpose of s. 35 of the Constitution Act, 1982 which recognizes the rights of Aboriginal "peoples". Aboriginal peoples, including the Métis, are organic political and cultural entities with complex histories, as opposed to racial groups.

RCAP, Restructuring the Relationship, vol. 2, part I, at 176-177.

50. Blood quantum requirements should be rejected because they reveal little about how individuals define themselves and their relation to an Aboriginal community. Blood quantum requirements are also very difficult to administer and are best avoided given the multi-racial and multi-cultural reality of contemporary Canada and the value that is placed on an individual's own sense of identity and their relation with Aboriginal communities. Certainly, there are more respectful alternatives to establishing Métis identity. It is submitted that such racial requirements are inappropriate in contemporary society as they would not permit Aboriginal communities to evolve and would result in segregation or extinguishment through assimilation.

Reasons for Judgment of O'Neill J., at 23, paras. 55-56; AAB, Vol. VIII, Tab 60, at 1064.

51. Requirements of demonstrating "social and cultural links" to the modern community, as urged by the Appellant, should also be rejected as contrary to the purpose of Aboriginal rights. This additional requirement of demonstrating participation in the social and cultural activities of the Métis community is objectionable as it places unrealistic burdens on those claiming Métis rights that are not placed on those claiming other Aboriginal rights.

Appellant's Factum, at 42, paras. 104-105.

Reasons for Judgment of O'Neill J., at 24, paras. 60-61; AAB, Vol. VIII, Tab 60, at 1065.

52. For example, in Sparrow, the Aboriginal right to fish for food and ceremonial purposes upheld by the Court belonged to all members of the Musqueam First Nation. Thus a Musqueam member who lived all of his or her life outside of the Musqueam territory and who never spoke the language or participated in the cultural activities of the community has an equal right to participate in the Aboriginal right as does any other member of the First Nation. It is submitted that the Métis should not be subjected to any additional or more onerous legal requirements.

53. It should also be noted that requiring evidence of social or cultural links could lead to unfair distinctions. For example, distinctions based on the residency of Aboriginal people have been held to be arbitrary and discriminatory. The RCAP Report noted that "[t]erritory, land and home have always been important to Aboriginal people" and it is no different for those living in urban Canada who may have left their traditional homeland for a variety of reasons.

Corbiere v. Canada, [1999] 2 S.C.R. 203, at 222-224, paras. 18, 19.

RCAP, vol. 4, Ch. 7, at 612; ABA, Vol. III, Tab C3.

Self-determination and community acceptance

54. ALST submits that this Court need not determine whether or not it is necessary to demonstrate a genealogical connection in order to exercise an Aboriginal right, as the Respondents satisfied "the most demanding test" in this regard. ALST submits that, in any event, such issues are best determined by Métis communities, themselves, based on principles of fairness and reasonableness. It is submitted that attempts by non-Aboriginals to define who is and who is not Aboriginal have often been an example of the exercise of a discriminatory and colonial power.

Respondent's Factum, at 42, 43, paras. 139, 144.

Judgment of the Ontario Court of Appeal, at 71, para. 155; AAB, Vol. VIII, Tab 62, at 1148.

55. It is submitted that s. 35 of the Constitution Act, 1982 includes a right to self-determination, including the right to determine community membership. The recognition of Aboriginal rights flows from the prior existence of Aboriginal communities. The Aboriginal peoples recognized in s. 35 of the Constitution organized themselves politically and culturally, both prior and subsequent to the arrival of Europeans. It is submitted that one of the key aspects of political and cultural identity is the ability to decide who is or is not a member of the community or nation.

RCAP, vol. 4, at 282-283; AAB, Vol. III, Tab 41, at 363-364.

Reasons for Judgment of O'Neill J., at 23-24, paras. 58-59; AAB, Vol. VIII, Tab 60, at 1064-1065.

56. The RCAP Report recognizes that the inclusion of Métis people in the constitutionally recognized category of "Aboriginal peoples" also has major implications under international law. The United Nations International Covenant on Economic, Social and Cultural Rights, states as follows in Article 1:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

RCAP, vol. 4, at 282; AAB, Vol. III, Tab 41, at 363.

57. In addition, the draft International Declaration on the Rights of Indigenous Peoples makes it clear that the right of self-determination has special significance for Aboriginal peoples:

Article 3. Indigenous peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;

Article 8. Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such;

RCAP, vol. 4, at 282-283; AAB, Vol. III, Tab 41, at 363-364.

58. In recognition of the right of self-determination of Aboriginal peoples, RCAP recommends the following definition of Métis identity:

Every person who

(a) identifies himself or herself as Métis and

(b) is accepted as such by the nation of Métis people with which that person wishes to be associated, on the basis of criteria and procedures determined by that nation

be recognized as a member of that nation for the purposes of nation-to-nation negotiations and as Métis for that purpose.

RCAP, vol. 4, at 203; AAB, Vol. III, Tab 41, at 286.

59. The above definition does not rely solely on self-identification, but rather requires acceptance by the relevant Métis nation on the basis of criteria and procedure that the Métis nation, itself, determines. ALST respectfully submits that this definition of Métis identity is most consistent with a purposeful definition of Métis rights as guaranteed under s. 35 of the Constitution.

60. ALST recognizes that the above definition of identity was proposed for the purpose of nation-to nation negotiations and it is clear that only Métis peoples, themselves, can define their own membership for that purpose. ALST maintains, however, that the question of community membership for the purpose of exercising Aboriginal harvesting rights, is also a determination that is more appropriately made by the Métis society itself.

61. In summary, ALST submits that Métis Aboriginal harvesting rights are exercisable by those who self-identify as Métis and are accepted as Métis by the relevant Métis community, on the basis of criteria and procedures determined by that community, reflecting fair and reasonable principles.

62. Finally, ALST submits that, contrary to the suggestion of the Ontario Court of Appeal, there is no reason why membership in Métis organizations could not constitute sufficient evidence of community acceptance for the purpose of exercising Aboriginal harvesting rights. This is not unlike membership in an Indian Act band constituting sufficient evidence of an individual's ability to exercise Aboriginal rights. It is submitted that where Métis rights are site-specific, acceptance by "a locally-organized community branch, chapter or council of a Métis association or organization with which that person wishes to be associated" may be sufficient evidence of community acceptance. At the same time, the rights in question could be negotiated and administered by provincial or national organizations.

Judgment of the Ontario Court of Appeal, at 67-70, paras. 142-149; AAB, Vol. VIII, Tab 62, at 1144-1147.

Reasons for Judgment of O'Neill J., at 25, para. 64; AAB, Vol. VIII, at 1066.

PART IV - ORDER REQUESTED

63. The Intervenor, ALST, respectfully requests that this appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 29^TH DAY OF JANUARY, 2003.

_________________________________ Brian Eyolfson

Counsel for the Intervenor,

Aboriginal Legal Services of Toronto, Inc.

PART V - TABLE OF AUTHORITIES

Case Law Page

Corbiere v. Canada, [1999] 2 S.C.R. 203. 17

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. 6,12

R. v. Adams, [1996] 3 S.C.R. 101. 6,12

R. v. Coté, [1996] 3 S.C.R. 139. 11

R. v. Gladstone, [1996] 2 S.C.R. 723. 5

R. v. Sparrow, [1990] 1 S.C.R. 1075. 2,3,4,11

R. v. Van der Peet, [1996] 2.S.C.R. 507. 2,3,4,6,7,8,

9,10,10,11

Simon v. The Queen, [1985] 2 S.C.R. 387. 15

Journal Articles

C. Bell, "Who are the Métis People in Section 35(2)?" (1991) 2,14

29 Alta L.R. 351.

P. Palmater, "An Empty Shell of a Treaty Promise: R. v. Marshall 10,11,15

and the Rights of Non-Status Indians" Dal. L.J. 103.

Reports

Canada, Report of the Royal Commission on Aboriginal Peoples: 2,3,4,5

Perspectives and Realities ("RCAP"), vol. 4. 16,17,18,19

RCAP, Restructuring the Relationship, vol. 2, part I. 16