MÉTIS LAW IN CANADA - Pape Salter Teillet

1 M TIS LAW IN CANADA . by Jean Teillet M tis Law in CANADA . Copyright 2013 by Jean Teillet . All rights reserved. This book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, or by any information storage and retriev- al system, with appropriate credit. First Published: 1999. First Published on the web: 2005. First Published in Looseleaf Book: 2013. Published by Pape Salter Teillet , Vancouver, British Columbia, CANADA ISBN: 978-0-9917027-0-1. Contents Dedication vi Foreward by Dr. Arthur vii About the Author Jean Teillet , xi Credits & Back xii About the Publisher - Pape Salter xii xiii What's xiii What We're xviii Chapter One: Who are the M tis? ..1-1. The M tis of the Northwest are an aboriginal Language and Naming.

2 1-2. M tis Identity ..1-4. M tis and the Indian M tis Identity FAQS ..1-17. A Brief Political & Legal History of the M tis of the What is a M tis Community? ..1-28. Chapter Two: M tis Harvesting The Law of Aboriginal M tis Harvesting Rights ..2-17. The Powley test to determine s. 35 harvesting Commercial Harvesting Rights ..2-29. Aboriginal Communal Fishing Provincial Harvesting Harvesting Policies and Migratory Chapter Three: M tis Title and Land Claims ..3-1. Aboriginal M tis M tis Land Rights Case Specific M tis Lands and Resources Negotiated Agreements ..3-13. iii Chapter Four: Constitutional Section 91(24)..4-2. Natural Resources Transfer 1870 Chapter Five: Human Section 15 of the Charter of Rights and Freedoms International Human Rights.

3 5-3. UN Human Rights Committee ..5-3. UN Declaration on the Rights of Indigenous Convention No. Organization of American States Inter-American Commission on Human Rights (IACHR)..5-7. Chapter Six: Administrative Tribunals and Class Administrative M tis Settlements Appeals Tribunal (MSAT) ..6-2. Class Sixties Scoop Class Residential School Class Actions ..6-5. Indian Residential Schools Settlement Agreement May 8, Truth and Reconciliation Chapter Seven: Criminal Aboriginal Chapter Eight: M tis in Alberta Constitution of Alberta Amendment Act, Alberta M tis Settlements Saskatchewan The M tis Ontario Green Energy Historic Manitoba Dominion Lands Regulations & Orders in iv Riel Bills Proposed Exoneration for Louis M tis Honoring Louis The Year of the M tis Chapter Nine: Obligations of the Crown.

4 9-1. Fiduciary Law and the Honour of the Consultation and M tis Chapter Ten: Self Government ..10-1. Delegated Negotiated Agreements in Support of M tis Self-Government ..10-3. Case Law List of Cases by Subject v Dedication Page M tis Law in CANADA is dedicated to Richard B. Salter and the late Arthur C. Pape (1942-2012). In 1992, when I was still in second year of law school at the University of Toronto I walked into Rick Salter 's office. It was supposed to be a 20-minute interview for a summer position. Twenty-one years have passed and I have never left. I have never wanted to leave. I could never imagine another law firm that would provide such a rich, creative and supportive work environment. From the very first day Rick and Art mentored, supported and encouraged me in my wish to work in the field of aboriginal law.

5 I walked into their law offices full of my desire to work on M tis law, which at that time was essentially a non-existent field of law. Rick and Art underwrote financially and with their mentorship all of those early M tis cases that I worked on including Powley. They had been together as law partners for eight years before I came along. In 2005, I became a partner and the firm became Pape Salter Teillet . In 2012, Arthur Pape passed away and Rick is beginning a gradual retirement from the field. These two remarkable men have contributed generously and often in unacknowledged ways to the aboriginal peoples of CANADA and to the field of aboriginal law. They have been participants in almost every major aboriginal rights case from Sparrow, Delgamuukw, Haida and Taku, Powley and many more.

6 They have negotiated major land claims agreements in the Yukon and NWT. They have also mentored two generations of aboriginal lawyers. From the first day that I started writing M tis Law in CANADA (at that time known as the M tis Law Summary) in 1999, Rick and Art have financed it. My vision was to provide, free of charge, a guide to M tis law that would be accessible to the M tis especially the people in the small communities, the beaders, the trappers, the children in northern classrooms, M tis harvesters and the politicians who sit on M tis representative bodies across the M tis Nation. It gradually grew into the book that is now used in law schools and native studies departments at colleges and universities across CANADA .

7 It still remains the only full collection of M tis case law in the country. M tis Law in CANADA exists because of these two extraordinary men. vi Foreward by Dr. Arthur Ray M tis Law in CANADA reminds me of a conversation I had with Professor Doug Sanders shortly after I had arrived at UBC in 1981 to take up a position in the History Department. Doug already was a highly recognized authority on human rights law and the previous year he had been involved in the early precedent-setting British Columbia native fishing rights case, which is remembered as Jack v. When we met I had not yet been involved in rights litigation as an expert witness, but I was interested in the ongoing process. So, I had many questions for Doug. In particular, I won- dered if the M tis would make any headway in advancing their rights?

8 I also want- ed to know what role, if any, history played in the development of native law more generally. Regarding the advancement of M tis rights, Doug was doubtful that very much could be accomplished given the very complex issues that their rights claims raised. Their dual aboriginal and Euro-Canadian ancestry was particularly prob- lematic when it came to recognizing rights based on distinctive cultural practices. What neither of us anticipated at the time was that the following year CANADA would approve a new constitution (the Constitutional Act, 1982), which included the game changing section 35 that protected existing, but undefined, aboriginal and treaty rights in 35(1)) and included the M tis as one of three groups of aboriginal people in 35(2).

9 The provision of constitutional protection for aboriginal and treaty rights brought to partial fruition the ongoing political struggle of First Nations, Inuit, and M - tis political leaders to have the rights of their people recognized and protected in Canadian law. The M tis effort had begun with armed conflicts in Western CANADA in 1870 and 1885 under the leadership of Louis Riel and it was carried forward in the political arena by a succession of M tis activists. Harry Daniels (1940-2004). is credited with playing the crucial role in having the M tis included in section 35. This M tis accomplishment made CANADA the first country to give constitutional recognition to people of mixed European-indigenous ancestry. The inclusion of section 35 in the new constitution also opened a flood-gate of aboriginal and treaty rights litigation because it had left it to the courts to provide content for this con- stitutional provision.

10 In the course of doing so the courts have had to address the very complex issues concerning the M tis that Doug Sanders had anticipated. And this is where Jean Teillet came in. Jean, who is the great grandniece of Louis Riel, 1. Jack v. Regina, [1979] No. 107. vii has been in the forefront of M tis rights litigation, and aboriginal and treaty rights more generally, from the time she was called to the bar in Ontario in 1996. She has represented numerous First Nations and M tis claimants from Ontario to the Pacific Coast and the Arctic watershed. As for my second question to Doug Sanders in 1981, the one about history and the law, he pointed out to me that native law was one of the few areas of jurisprudence where historical evidence played an important role in developing the precedent-set- ting case law.