R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44
Ernest Lionel Joseph Blais Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General for Saskatchewan,
Attorney General of Alberta,
Métis National Council
and Congress of Aboriginal Peoples Interveners
Indexed as: R. v. Blais
Neutral citation: 2003 SCC
44.
File No.: 28645.
2003: March 18; 2003: September 19.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for manitoba
Constitutional law — Manitoba Natural Resources
Transfer Agreement — Hunting rights — Métis — Métis convicted of hunting
contrary to provincial statute — Natural Resources Transfer Agreement
providing that provincial laws respecting game apply to Indians subject to
their continuing right to hunt, trap and fish for food on unoccupied Crown
lands — Whether Métis are “Indians” under hunting rights provision of Natural
Resources Transfer Agreement — Natural Resources Transfer Agreement (Manitoba),
para. 13.
The appellant, a Manitoba Métis, was convicted of
hunting deer out of season. He had been hunting for food on unoccupied Crown
land. His appeals to the Manitoba Court of Queen’s Bench and the Manitoba
Court of Appeal were based solely on the defence that, as a Métis, he was
immune from conviction under the Wildlife Act regulations in so far as
they infringed on his right to hunt for food under para. 13 of the Manitoba Natural
Resources Transfer Agreement (NRTA). This provision stipulates that
the provincial laws respecting game apply to the Indians subject to the
continuing right of the Indians to hunt, trap and fish for food on unoccupied
Crown lands. Both appeals were unsuccessful. The issue in this appeal
was whether the Métis are “Indians” under the hunting rights provision of the NRTA.
Held: The appeal
should be dismissed.
The NRTA is a constitutional document which
must be read generously within its contextual and historical confines and yet
in such a way that its purpose is not overshot. Here, the appellant is not
entitled to benefit from the protection accorded to “Indians” in the NRTA.
First, the NRTA’s historical context suggested that the term
“Indians” did not include the Métis. The historical documentation
indicated that, in Manitoba, the Métis had been treated as a different group
from “Indians” for purposes of delineating rights and protections.
Second, the common usage of the term “Indian” in 1930 did not encompass the
Métis. The terms “Indian” and “half‑breed” had been used to refer
to separate and distinguishable groups of people in Manitoba from the mid‑19th
century through the period in which the NRTA was negotiated and
enacted. The location of para. 13 in the NRTA under the heading “Indian
Reserves” further supports this interpretation. Third, the purpose of
para. 13 of the NRTA was to ensure respect for the Crown’s
obligations to “Indians” with respect to hunting rights, who were viewed as
requiring special protection and assistance. This view did not extend to the
Métis, who were considered more independent and less in need of Crown protection.
A requirement for “continuity of language” should not
be imposed on the Constitution as a whole and, in any event, such an
interpretation would not support the contention that the term “Indians” should
include the Métis. The principle that ambiguities should be resolved in
favour of Aboriginal peoples is inapplicable as the historical documentation
was sufficient to support the view that the term “Indians” in para. 13 of the NRTA
was not meant to encompass the Métis. Nor does the “living tree”
doctrine expand the historical purpose of para. 13; while constitutional
provisions are intended to provide “a continuing framework for the legitimate
exercise of governmental power”, the Court is not free to invent new
obligations foreign to the original purpose of the provision at issue, but
rather must anchor the analysis in the historical context of the provision.
Cases Cited
Applied: R. v.
Powley, [2003] 2 S.C.R. 207, 2003 SCC 43; referred
to: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board,
[1933] S.C.R. 629; Frank v. The Queen, [1978] 1 S.C.R. 95;
Moosehunter v. The Queen, [1981] 1 S.C.R. 282; R. v. Horseman,
[1990] 1 S.C.R. 901; R. v. Badger, [1996] 1 S.C.R. 771; R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295; Reference as to whether “Indians”
in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province
of Quebec, [1939] S.C.R. 104; Nowegijick v. The Queen, [1983] 1
S.C.R. 29; R. v. Sutherland, [1980] 2 S.C.R. 451; Mitchell v. Peguis
Indian Band, [1990] 2 S.C.R. 85; Edwards v. Attorney‑General for
Canada, [1930] A.C. 124; Hunter v. Southam Inc., [1984] 2 S.C.R.
145; R. v. Marshall, [1999] 3 S.C.R. 456.
Statutes and Regulations Cited
Constitution Act, 1867, s. 91(24) .
Constitution Act, 1930 [reprinted in R.S.C. 1985, App. II, No. 26].
Constitution Act, 1982, s. 35 .
Indian Act, R.S.C. 1985, c. I-5, s. 88 .
Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1985, App. II, No. 8],
s. 31.
Natural Resources Transfer
Agreement (Manitoba), paras. 1, 10, 11, 12,
13.
Wildlife Act, R.S.M. 1987, c. W130, s. 26 [rep. & sub. 1989‑90,
c. 27, s. 13].
Authors Cited
Canada. House of Commons. House
of Commons Debates, vol. XX, 3rd Sess., 5th Parl., July 6, 1885,
p. 3113.
Canada. Royal Commission on
Aboriginal Peoples. Report of the Royal Commission on Aboriginal
Peoples: Perspectives and Realities, vol. 4. Ottawa: The Commission,
1996.
Côté, Pierre‑André. The
Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.:
Carswell, 2000.
Driedger, Elmer A. Construction
of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Flanagan, Thomas E. “The History
of Metis Aboriginal Rights: Politics, Principle, and Policy” (1990), 5 C.J.L.S. 71.
Morris, Alexander. The
Treaties of Canada with the Indians of Manitoba and the North‑West
Territories, Including the Negotiations on Which they Were Based, and Other
Information Relating Thereto. Toronto: Belfords, Clarke, 1880.
Morton, W. L. Manitoba: The
Birth of a Province. Winnipeg: Manitoba Record Society Publications,
1984.
APPEAL from a judgment of the Manitoba Court of Appeal
(2001), 198 D.L.R. (4th) 220, [2001] 8 W.W.R. 231, 156 Man. R. (2d) 53, 246
W.A.C. 53, [2001] 3 C.N.L.R. 187, [2001] M.J. No. 168 (QL), 2001 MBCA 55,
affirming a decision of the Court of Queen’s Bench, [1998] 10 W.W.R. 442, 130
Man. R. (2d) 114, [1998] 4 C.N.L.R. 103, [1998] M.J. No. 395 (QL),
upholding a judgment of the Provincial Court, [1997] 3 C.N.L.R. 109, [1996] M.J.
No. 391 (QL). Appeal dismissed.
Lionel Chartrand,
for the appellant.
Holly D. Penner
and Deborah L. Carlson, for the respondent.
Ivan G. Whitehall,
Q.C., Barbara Ritzen and Michael H. Morris, for the
intervener the Attorney General of Canada.
Written submissions only by P. Mitch McAdam,
for the intervener the Attorney General for Saskatchewan.
Kurt J. W. Sandstrom and Margaret Unsworth, for the intervener the Attorney
General of Alberta.
Jean Teillet, Clem Chartier,
Arthur Pape and Jason Madden, for the intervener the
Métis National Council.
Joseph Eliot Magnet, for the intervener the Congress of Aboriginal Peoples.
The following is the judgment delivered by
The Court —
I. Introduction
1
This case raises the issue of whether the Métis are “Indians” under the
hunting rights provisions of the Manitoba Natural Resources Transfer
Agreement (“NRTA”), incorporated as Schedule (1) to the Constitution
Act, 1930. We conclude that they are not.
2
On February 10, 1994, Ernest Blais and two other men went hunting for
deer in the District of Piney, in the Province of Manitoba. At that time, deer
hunting was prohibited in that area by the terms of the wildlife regulations
passed pursuant to The Wildlife Act of Manitoba, R.S.M. 1987, c.
W130, s. 26, as amended by S.M. 1989-90, c. 27, s. 13. Mr. Blais was
charged with unlawfully hunting deer out of season.
3
The requisite elements of the offence were conceded at trial. However,
the appellant asserted two defences that would have entitled him to acquittal.
Both defences were based on his identity as a Métis. First, the appellant
argued that, as a Métis, he had an aboriginal right to hunt for food under s.
35 of the Constitution Act, 1982 . Second, he claimed a constitutional
right to hunt for food on unoccupied Crown lands by virtue of para. 13 of the NRTA.
4
The parties agreed at trial, and continue to agree, that the appellant
was hunting for food for himself and for the members of his immediate family,
and that he was hunting on unoccupied Crown land. They further agree that the
appellant is Métis.
5
The trial judge rejected both of the appellant’s defences and entered a
conviction on August 22, 1996 ([1997] 3 C.N.L.R. 109). The appellant appealed
the conviction to the Manitoba Court of Queen’s Bench ([1998] 4 C.N.L.R. 103)
and to the Manitoba Court of Appeal ([2001] 3 C.N.L.R. 187, 2001 MBCA 55). His
appeals were based solely on the defence that, as a Métis, he is immune from
conviction under the Wildlife Act regulations in so far as they infringe
on his right to hunt for food under para. 13 of the NRTA. Both courts
rejected this defence and upheld the appellant’s conviction.
6
Because we agree that para. 13 of the NRTA cannot be read to
include the Métis, we would dismiss this appeal. We make no findings with
respect to the existence of a Métis right to hunt for food in Manitoba under s.
35 of the Constitution Act, 1982 , since the appellant chose not
to pursue this defence.
II. Analysis
7
Mr. Blais is a “Métis”, a member of a distinctive community descended
from unions between Europeans and Indians or Inuit. This is agreed by the
parties and was confirmed by the trial judge. There is no basis for disturbing
this finding, particularly as the appellant satisfies the criteria of
self-identification, ancestral connection, and community acceptance set out in R.
v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43. The question is whether, as a
Métis, he is entitled to benefit from this hunting provision for “Indians”.
8
Paragraph 13 of the NRTA reads:
In order to secure to the Indians
of the Province the continuance of the supply of game and fish for their
support and subsistence, Canada agrees that the laws respecting game in force
in the Province from time to time shall apply to the Indians within the
boundaries thereof, provided, however, that the said Indians shall have the
right, which the Province hereby assures to them, of hunting, trapping and
fishing game and fish for food at all seasons of the year on all unoccupied
Crown lands and on any other lands to which the said Indians may have a right
of access.
This provision consists of a stipulation and an exception. The
stipulation is that “the laws respecting game in force in the Province from
time to time shall apply to the Indians” (emphasis added). The
exception is the continuing right of the Indians to hunt, trap and fish for
food on unoccupied Crown lands “provided, however, that the said Indians
shall have the right, which the Province hereby assures to them, of hunting,
trapping and fishing game and fish for food at all seasons of the year on all
unoccupied Crown lands and on any other lands to which the said Indians may
have a right of access” (emphasis added).
9
The issue, as stated, is whether the exception
addressed to “Indians” applies to the Métis. As we explain in Powley,
supra, at para. 10, the term “Métis” does not
designate all individuals with mixed 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 separate from their
Indian or Inuit and European forebears”. Members of Métis communities in the prairie
provinces collectively refer to themselves as the “Métis Nation”, and trace
their roots to the western fur trade: Report of the Royal Commission on
Aboriginal Peoples: Perspectives and Realities (1996), vol. 4, at p. 203
(“RCAP Report”). Other Métis communities emerged in eastern Canada: RCAP
Report; see Powley, at para. 10. The sole question before us is
whether the appellant, being a Métis, is entitled to
benefit from the protection accorded to “Indians” in the NRTA. He can
claim this benefit only if the term “Indians” in para. 13 encompasses the
Métis.
A. An Overview of the NRTA
10
Before embarking on our analysis of the meaning of “Indians” in para.
13, it may be useful to set out the history of the NRTA in general and
para. 13 in particular. The three NRTAs arose as part of an effort to
put the provinces of Alberta, Manitoba and Saskatchewan on an equal footing
with the other Canadian provinces by giving them jurisdiction over and
ownership of their natural resources. Paragraph 1 of each of these Agreements
reads in part:
In order that the
Province may be in the same position as the original Provinces of Confederation
are in virtue of section one hundred and nine of the Constitution Act, 1867 , the
interest of the Crown in all Crown lands, mines, minerals (precious and
base) and royalties derived therefrom within the Province, and all sums due or
payable for such lands, mines, minerals or royalties, shall . . . belong to the Province, subject to any trusts existing in respect thereof,
and to any interest other than that of the Crown in the same, and the said lands, mines, minerals and royalties
shall be administered by the Province for the purposes thereof . . .; any payment received by Canada in respect of any
such lands, mines, minerals or royalties before the coming into force of this
agreement shall continue to belong to Canada . . . it
being the intention that . . . Canada
shall not be liable to account to the Province for any payment made in respect of any of the said
lands, mines, minerals or royalties before the coming into force of this
agreement, and that the Province shall not be liable to account to Canada
for any such payment made thereafter. [Emphasis added.]
In other
words, the Agreements were largely concerned with the transfer of contractual
and related liabilities from Canada to the provinces. Indeed, early litigation
relating to the NRTAs involved precisely this: see, e.g., Spooner Oils Ltd. v. Turner Valley Gas Conservation
Board, [1933] S.C.R. 629.
11
In the midst of these transfer provisions, three out of 25
paragraphs in the Manitoba NRTA come under the separate heading “Indian Reserves”. Paragraph 13 is one of
them. These paragraphs are identical to paras. 10-12 of the Alberta and
Saskatchewan NRTAs. The three provisions indicate that, notwithstanding
the transfer of control over land to Manitoba, responsibility for administering
Indian reserves will remain with the federal Crown (para. 11); that the rules
set out in the March 24, 1924 agreement between Canada and Ontario will apply
to these Indian reserves and to any others subsequently created in the Province
(para. 12); and that provincial hunting and fishing laws will apply to Indians except
that these laws shall not prevent Indians from hunting and fishing for food on
unoccupied Crown lands (para. 13).
12
The broad purpose of the NRTA was to transfer control over
land and natural resources to the three western provinces. The first two of
the three provisions on “Indian Reserves” were included to specify that the
administration of these reserves would remain with the federal government
notwithstanding the general transfer. However, the provincial government would
have the right and the responsibility to legislate with respect to certain
natural resource matters affecting Indians, including hunting. Section 88 of
the Indian Act, R.S.C. 1985, c. I-5 , introduced in 1951 (S.C. 1951, c.
29, s. 87), makes general provincial laws applicable to Indians in the absence
of conflicting treaties or Acts of Parliament. By enacting para.
13, the federal government specified that hunting and fishing by Indians could
be the subject of provincial regulation, while seeking to ensure that its
pre-existing obligations towards the Indians with respect to hunting rights
would be fulfilled.
13
Paragraph 13 both affirmed and limited the Province’s regulatory power:
Frank v. The Queen, [1978] 1 S.C.R. 95, at p. 100; Moosehunter v. The
Queen, [1981] 1 S.C.R. 282, at p. 285; R. v. Horseman, [1990]
1 S.C.R. 901, at pp. 931-32; R. v. Badger, [1996] 1 S.C.R. 771, at para.
45. It affirmed the Province’s power to regulate hunting for conservation
purposes (see Badger, supra, at para. 71) but it carved out a
protected space for hunting by Indians on unoccupied Crown lands and on lands
to which the Indians have a right of access. Other potential sources of
aboriginal hunting rights exist outside of the para. 13 framework, such as
time-honoured practices recognized by the common law and protected by s. 35 of
the Constitution Act, 1982 . However, because Mr. Blais grounds his
claim exclusively in para. 13 of the NRTA, we must confine our reasoning
to this provision.
B. The Regulatory Context
14
The Province of Manitoba has used its regulatory power to enact laws
designed to protect its wildlife population: The Wildlife Act.
The regulations prescribe when, where, how and what species people can hunt.
Where there is not an absolute prohibition on hunting a particular species,
Manitoba has instituted seasonal restrictions and a system of licensing to keep
track of the date, location, kind and number of animals killed.
15
Seasonal restrictions and licensing requirements for deer hunting
under the Manitoba Wildlife Act currently do not apply to members of
Indian bands. Mr. Blais was arrested and charged with unlawfully hunting deer
out of season because he is not a member of an Indian band, but a member of the
Manitoba Métis community. The position of the Manitoba
government is that para. 13 of the NRTA does not exempt the Métis from
the obligation to comply with the deer-hunting regulations. Mr. Blais says
that it does.
C. Guiding Principles and
Application
16
Against this background, we turn to the issue
before us: whether “Indians” in para. 13 of the NRTA include the Métis.
The starting point in this endeavour is that a statute — and this includes
statutes of constitutional force — must be interpreted in accordance with the
meaning of its words, considered in context and with a view to the purpose they
were intended to serve: see E. A. Driedger, Construction of Statutes
(2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his
treatise, “Any
interpretation that divorces legal expression from the context of its enactment
may produce absurd results” (The Interpretation of
Legislation in Canada (3rd ed. 2000), at p. 290).
17
The NRTA is a constitutional document. It must therefore be read
generously within these contextual and historical confines. A court
interpreting a constitutionally guaranteed right must apply an interpretation
that will fulfill the broad purpose of the guarantee and thus secure “for
individuals the full benefit of the [constitutional] protection”: R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. “At the same time
it is important not to overshoot the actual purpose of the right or freedom in
question, but to recall that the [constitutional provision] was not enacted in
a vacuum, and must therefore . . . be placed in its proper
linguistic, philosophic and historical contexts”: Big M Drug Mart, supra,
at p. 344. This is essentially the approach the Court used in 1939 when the
Court examined the historical record to determine whether the term “Indians” in
s. 91(24) of the British North America Act, 1867 includes the Inuit (Reference
as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo
inhabitants of the Province of Quebec, [1939] S.C.R. 104).
18
Applied to this case, this means that we must fulfill — but not “overshoot” — the purpose of para. 13 of the NRTA.
We must approach the task of determining whether Métis are included in
“Indians” under para. 13 by looking at the historical context, the ordinary
meaning of the language used, and the philosophy or objectives lying behind it.
(1) Historical Context
19
The NRTA was not a grant of title, but an administrative transfer
of the responsibilities that the Crown acknowledged at the time towards “the
Indians within the boundaries” of the Province — a transfer with constitutional force. In ascertaining
which group or groups the parties to the NRTA intended to designate by
the term “Indians”, we must look at the prevailing understandings of Crown
obligations and the administrative regimes that applied to the different
Aboriginal groups in Manitoba. The record suggests that the Métis were treated
as a different group from “Indians” for purposes of delineating rights and
protections.
20
The courts below found, and the record confirms, that the Manitoba Métis
were not considered wards of the Crown. This was true both from the
perspective of the Crown, and from the perspective of the Métis. Wright J.
summarized his findings on this point as follows, at paras. 18-19:
The nature of the negotiations in the 1920’s, as
reflected in correspondence and other evidence introduced at the trial of the
appellant, shows that protection was the fundamental concern of the federal
authorities, being consistent with the Crown’s obligations to those who
automatically or voluntarily became subject to, or beneficiaries of, the Indian
Act .
Nowhere is there any suggestion [that] the Metis,
as a people, sought or were regarded as being in need of this kind of
protection. On the contrary, the evidence demonstrates the Metis to be
independent and proud of their identity separate and apart from the Indians.
21
The difference between Indians and Métis appears to have been
widely recognized and understood by the mid-19th century. In
1870, Manitoba had a settled population of 12,228 inhabitants, almost 10,000 of
whom were either English Métis or French Métis. Government actors and the
Métis themselves viewed the Indians as a separate group with different
historical entitlements; in fact, many if not most of the members of the
Manitoba government at the time of its entry into Confederation were themselves
Métis.
22
The Manitoba Act, 1870 used the term “half-breed”
to refer to the Métis, and set aside land specifically for their
use: Manitoba Act, 1870, S.C. 1870, c. 3, s. 31 (reprinted in
R.S.C. 1985, App. II, No. 8). While s. 31 states that this land is being set
aside “towards the extinguishment of the Indian Title to the lands in the
Province”, this was expressly recognized at the time as being an inaccurate
description. Sir John A. Macdonald explained in 1885:
Whether they [the Métis] had any right to those lands or
not was not so much the question as it was a question of policy to make an
arrangement with the inhabitants of that Province . . .
1,400,000 acres would be quite sufficient for the purpose of compensating these
men for what was called the extinguishment of the Indian title. That phrase
was an incorrect one, the half-breeds did not allow themselves to be Indians.
(House of Commons Debates, July 6, 1885, at p.
3113, cited in T. E. Flanagan, “The History of Metis Aboriginal Rights:
Politics, Principle, and Policy” (1990), 5 C.J.L.S. 71, at p. 74)
23
Other evidence in the record corroborates this view. For
example, at trial, the expert witness Dr. G. Ens attached to his
report a book written by Lieutenant-Governor A. Morris entitled The Treaties
of Canada with the Indians of Manitoba and the North-West Territories,
published in 1880. The book includes an account of negotiations between the
Governor and an Indian Chief who expresses the concern that his mixed-blood
offspring might not benefit from the proposed treaty. The Governor explains,
at p. 69: “I am sent here to treat with the Indians. In Red River, where I
came from, and where there is a great body of Half-breeds, they must be either
white or Indian. If Indians, they get treaty money; if the Half-breeds call
themselves white, they get land”. This statement supports the view that Indians
and Métis were widely understood as distinct groups for the purpose of
determining their entitlements vis-à-vis the colonial administration.
24
It could be argued that the ability of individual Métis to identify themselves with Indian bands and to claim treaty rights on
this basis weighs against a view of the two groups as entirely distinct.
However, the very fact that a Métis person could “choose” either an Indian or a
white identity supports the view that a Métis person was not considered Indian
in the absence of an individual act of voluntary association.
25
The Canadian government’s response to an 1877
petition from a group of Métis
further illustrates the perceived difference between the Indians and the Métis, and the exclusion of the Métis from the purview of Indian treaties. The
Métis petitioners requested a
grant of farming implements and seeds, and the relaxed enforcement of game laws
to enable them to recover economically from the small-pox
epidemic of 1870. David Laird, the Lieutenant-Governor
of the North-West Territories, responded to the petition. He concluded by
declaring:
I can assure you that the
Government feel[s] a kindly interest in your welfare, and it is because they
desire to see you enjoying the full franchise and property rights of British
subjects, and not laboring under the Indian state of pupilage, that they have
deemed it for the advantage of half-breeds themselves that they should not be
admitted to the Indian treaties.
(W. L. Morton, ed., Manitoba: The Birth of a
Province (1984), vol. I, at p. 23)
Without commenting on the motivations underlying the government’s
policy or on its ultimate wisdom, we take note of the clear distinction made
between Indians and “half-breeds”, and the fundamentally different perception
of the government’s relationship with and obligations towards these two
groups. We also note that counsel for the intervener, the Métis National
Council, told the Court of Appeal: “the Métis want to be ‘Indian’ under the NRTA,
but for no other purpose” (para. 75).
26
Placing para. 13 in its proper historical
context does not involve negating the rights of the Métis. Paragraph 13 is not
the only source of the Crown’s or the Province’s obligations towards Aboriginal
peoples. Other constitutional and statutory provisions are better suited, and
were actually intended, to fulfill this more wide-ranging purpose. The sole
issue before us is whether the term “Indians” in the NRTA includes the Métis. The historical
context of the NRTA suggests that it does not.
(2) Language
27
The common usage of the term “Indian” in 1930 also argues against
a view of this term as encompassing the Métis. Both the terms
“Indian” and “half-breed” were used in the mid-19th century. Swail Prov. Ct.
J. cites a North American census prepared by the Hudson’s Bay Company in
1856-57 (pp. 146-47). The census records 147,000 “Indians”, and breaks this
down into various groups, including “The Plain Tribes”, “The Esquimaux”,
“Indians settled in Canada”, and so forth. A separate line indicates the
number of “Whites and half-breeds in Hudson’s Bay Territory”, which is
estimated at 11,000, for a total of 158,000 “souls”. This document illustrates
that the “Whites and half-breeds” were viewed as an identifiable group,
separate and distinct from the Indians.
28
The Red River Métis distinguished themselves from
the Indians. For example, the successive Lists of Rights prepared by Métis leaders at the time of the creation of the Province of Manitoba
excluded “the Indians” from voting. This provision could not plausibly have
been intended to disenfranchise the Métis, who were the authors of the Lists
and the majority of the population. The Third and Fourth Lists of Rights
emphasized the importance of concluding treaties “between Canada and the different
Indian tribes of the Province”, with the “cooperation of the Local Legislature”
(Morton, supra, at pp. 246 and 249). The Local Legislature was, at that
time, a Métis-dominated body, underscoring the Métis’ own
view of themselves and the Indians as fundamentally distinct.
29
There might not have been absolute consistency in the use of the
terms “Indian” and “half-breed”, and there appears to have been some mobility
between the two groups. However, as evidenced by the historical documents
statement cited above, the prevailing trend was to identify two distinct groups
and to differentiate between their respective entitlements. Dr. Ens indicated
in his report: “By 1850 ‘Half-Breed’ was the most frequently used term among
English-speaking residents of the North West to refer to all persons of mixed
ancestry. It was a term that clearly differentiated between Indian and Metis
populations” (respondent’s record, at p. 176). At trial, the appellant’s
expert, Dr. Shore, could not cite any source in which the Canadian
government used the term “Indian” to refer to all Aboriginal peoples, including
the Métis.
30
This interpretation is supported by the location of para. 13 in
the NRTA itself. Quite apart from formal rules of statutory
construction, common sense dictates that the content of a provision will in
some way be related to its heading. Paragraph 13 falls under the
heading “Indian Reserves”. Indian reserves were set aside for the use and
benefit of Status Indians, not for the Métis. The placement of para. 13 in the
part of the NRTA entitled “Indian Reserves”, along with two other
provisions that clearly do not apply to the Métis, supports the view that the
term “Indian” as used throughout this part was not seen as including the
Métis. This placement weighs against the argument that we should construe the
term “Indians” more broadly than otherwise suggested by the historical context
of the NRTA and the common usage of the term at the time of the NRTA’s
enactment.
31
We find no basis in the record for overturning the lower courts’
findings that, as a general matter, the terms “Indian” and “half-breed” were
used to refer to separate and distinguishable groups of people in Manitoba from
the mid-19th century through the period in which the NRTA was negotiated
and enacted.
(3) The NRTA’s Objectives
32
The purpose of para. 13 of the NRTA is to
ensure respect for the Crown’s obligations to “Indians” with respect to hunting
rights. It was enacted to protect the hunting rights of
the beneficiaries of Indian treaties and the Indian Act in the context
of the transfer of Crown land to the provinces. It
took away the right to hunt commercially while protecting the right to hunt for
food and expanding the territory upon which this could take place: see Frank,
supra, at p. 100; Moosehunter, supra, at p. 285; Horseman,
supra, at pp. 931-32; and Badger, supra, at para. 45.
Wright J. put it thus, at para. 8:
The NRTA was entered into between
the federal government and each of the Provinces of Manitoba, Saskatchewan and
Alberta. . . . [Its] primary purpose was to transfer Crown
lands, with the resources associated, from Canada to the Provinces concerned.
Section 13 in the Manitoba agreement . . . was included to enable
Manitoba to pass laws respecting game and fish which would apply to
Indians. . . . The exclusion in s. 13 was aimed to protect
existing Indian rights to hunt, trap and fish on unoccupied Crown lands or any
other lands to which the Indians had a right of access. Any such rights arose
as a result of an Aboriginal historic base or because they were established or
confirmed by treaty.
Manitoba
would have the authority to pass laws respecting game and fish that would apply
to all hunting and fishing activities in the province, including the activities
of Indians. The exception was that Indians, a subset of the population with a
particular historical relationship to the Crown, would not thereby be deprived
of certain specified hunting and fishing rights.
33
The protection accorded by para. 13 was based on the special
relationship between Indians and the Crown. Underlying this was the view that
Indians required special protection and assistance. Rightly or wrongly, this
view did not extend to the Métis. The Métis were considered more
independent and less in need of Crown protection than their Indian neighbours,
as Wright J. confirmed. Shared ancestry between the Métis and the colonizing
population, and the Métis’ own claims to a different
political status than the Indians in their Lists of Rights, contributed to this
perception. The stark historic fact is that the Crown viewed its obligations
to Indians, whom it considered its wards, as different from its obligations to
the Métis, who were its
negotiating partners in the entry of Manitoba into Confederation.
34
This perceived difference between the Crown’s obligations to
Indians and its relationship with the Métis was reflected in separate arrangements for the distribution of
land. Different legal and political regimes governed the conclusion of Indian
treaties and the allocation of Métis scrip. Indian treaties were concluded on a collective basis and
entailed collective rights, whereas scrip entitled recipients to individual
grants of land. While the history of scrip speculation and devaluation is a
sorry chapter in our nation’s history, this does not change the fact that scrip
was based on fundamentally different assumptions about the nature and origins
of the government’s relationship with scrip recipients than the assumptions
underlying treaties with Indians.
35
The historical context of the NRTA, the language of the
section, and the purpose that led to its inclusion in the Constitution Act,
1930 support the lower courts’ conclusion that para. 13 does not encompass
the Métis.
D. Appellant’s
Counter-Arguments
(1) Continuity of Language
36
The appellant asks us to impose a “continuity of language”
requirement on the Constitution as a whole in order to support his argument
that the term “Indians” in the NRTA includes the Métis. We do not find this approach persuasive. To the contrary,
imposing a continuity requirement would lead us to conclude that “Indians” and
“Métis” are different, since they
are separately enumerated in s. 35(2) of the Constitution Act, 1982 . We
emphasize that we leave open for another day the question of whether the term
“Indians” in s. 91(24) of the Constitution Act, 1867 includes the Métis — an issue not before us in this appeal.
(2) The Ambiguity Principle
37
In the absence of compelling evidence that the term “Indians” in
para. 13 includes the Métis, the
appellant invokes the principle that ambiguities should be resolved in favour
of Aboriginal peoples: see Nowegijick v. The Queen, [1983] 1
S.C.R. 29, at p. 36; R. v. Sutherland, [1980] 2 S.C.R. 451, at p. 464; see also Mitchell v. Peguis
Indian Band, [1990] 2 S.C.R. 85, per
La Forest J., at pp. 142-43 (suggesting refinements to this principle). This
principle is triggered when there are doubts about the most fitting
interpretation of the provision in question. In such cases, a generous and
liberal interpretation is to be preferred over a narrow and technical one: Nowegijick, supra.
38
The ambiguity principle does not assist the
appellant in this case. The historical documentation is sufficient to support
the view that the term “Indians” in para. 13 of the NRTA was not meant to
encompass the Métis. Nor do we
find relevant the respondent’s counter-argument that the ambiguity principle
precludes extending the protection of para. 13 to the Métis because this would “dilute” the value of Indian hunting rights in
Manitoba. If “Indians” in para. 13 includes the Métis, then such
an interpretation will prevail whether or not “dilution” results.
(3) The “Living Tree”
Principle
39
We decline the appellant’s invitation to expand the historical
purpose of para. 13 on the basis of the “living tree” doctrine enunciated by
Lord Sankey L.C. with reference to the 1867 British North America Act: Edwards
v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. The
appellant, emphasizing the constitutional nature of para. 13, argues that this
provision must be read broadly as providing solutions to future problems. He
argues that, regardless of para. 13’s original meaning,
contemporary values, including the recognition of the Crown’s fiduciary duty
towards Aboriginal peoples and general principles of restitutive justice,
require us to interpret the word “Indians” as including the Métis.
40
This Court has consistently endorsed the living tree principle as
a fundamental tenet of constitutional interpretation. Constitutional provisions
are intended to provide “a continuing
framework for the legitimate exercise of governmental power”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, per Dickson J.
(as he then was), at p. 155. But at the same time, this Court is not free to
invent new obligations foreign to the original purpose of the provision at
issue. The analysis must be anchored in the historical context of the
provision. As emphasized above, we must heed Dickson J.’s admonition “not to overshoot the actual purpose of the right or
freedom in question, but to recall that the Charter was not enacted in a
vacuum, and must therefore . . . be placed in its proper linguistic, philosophic
and historical contexts”: Big M Drug
Mart, supra, at p. 344; see Côté, supra, at p. 265. Dickson J. was speaking
of the Charter, but his words apply equally to the task of interpreting
the NRTA. Similarly, Binnie J. emphasized the
need for attentiveness to context when he noted in R. v. Marshall,
[1999] 3 S.C.R. 456, at para. 14, that “‘[g]enerous’ rules of interpretation should not be confused with
a vague sense of after-the-fact largesse.”
Again the statement, made with respect to the interpretation of a treaty,
applies here.
41
We conclude that the term “Indians” in para. 13 of the NRTA does
not include the Métis, and we find no basis for modifying this
intended meaning. This in no way precludes a more
liberal interpretation of other constitutional provisions, depending on their
particular linguistic, philosophical and historical contexts.
III. Conclusion
42
We find no reason to disturb the lower courts’ findings that
neither the Crown nor the Métis
understood the term “Indians” to encompass the Métis in the decades leading up to and including the enactment of the NRTA.
Paragraph 13 does not provide a defence to the charge against the appellant for
unlawfully hunting deer out of season. We do not preclude the possibility that
future Métis defendants could argue for site-specific hunting rights in various
areas of Manitoba under s. 35 of the Constitution Act, 1982 ,
subject to the evidentiary requirements set forth in Powley, supra.
However, they cannot claim immunity from prosecution under the Manitoba
wildlife regulations by virtue of para. 13 of the NRTA.
43
The appeal is dismissed. Each party shall bear its own costs.
44
The constitutional question is answered as follows:
Is the appellant Ernest Lionel Joseph Blais, being a Métis,
encompassed by the term “Indians” in para. 13 of the Natural Resources
Transfer Agreement, 1930, as ratified by the Manitoba Natural Resources
Act , (1930) 20-21 Geo. V, c. 29 (Can.), and confirmed by the Constitution
Act (1930), 20-21 Geo. V, c. 26 (U.K.), and therefore rendering s. 26 of The
Wildlife Act of Manitoba unconstitutional to the extent that it infringes
upon the appellant’s right to hunt for food for himself and his family?
Answer: No.
APPENDIX
Relevant
Constitutional and Statutory Provisions
Constitution
Act, 1930
Manitoba —
Memorandum of Agreement
13. In order to secure to the Indians of the
Province the continuance of the supply of game and fish for their support and
subsistence, Canada agrees that the laws respecting game in force in the
Province from time to time shall apply to the Indians within the boundaries
thereof, provided, however, that the said Indians shall have the right, which
the Province hereby assures to them, of hunting, trapping and fishing game and
fish for food at all seasons of the year on all unoccupied Crown lands and on
any other lands to which the said Indians may have a right of access.
The
Wildlife Act, R.S.M. 1987, c. W130
26. No person shall hunt, trap, take or kill or attempt to trap,
take or kill a wild animal during a period of the year when the hunting,
trapping, taking or killing of that species or type of wild animal is either
prohibited or not permitted by the regulations.
Appeal dismissed.
Solicitor for the appellant: Aboriginal Centre Law Office,
Winnipeg.
Solicitor for the respondent: Attorney General of Manitoba,
Winnipeg.
Solicitor for the intervener the Attorney General of Canada:
Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Saskatchewan:
Deputy Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General of Alberta:
Alberta Justice, Edmonton.
Solicitors for the intervener the Métis National Council: Pape
& Salter, Vancouver.
Solicitor for the intervener the Congress of Aboriginal Peoples:
Joseph Eliot Magnet, Ottawa.