The New Brunswick Court of Queen’s Bench dismissed an appeal from conviction brought by two men claiming to be members of a historic Métis community in New Brunswick. The trial judge did not err in his application of the Powley test for determining the existence of a historic Métis community or in his treatment of the expert evidence. The appellants failed to prove the existence of a Métis community in the relevant area before the date of effective European control, and therefore could not rely upon section 35 rights in defending the illegal fishing charges.

The appellants Jackie and Roy Vautour were convicted under the Canada Parks Act and the Canada National Parks Fishing Regulations for unauthorized fishing for soft shelled clams within Kouchibouguac National Park in New Brunswick. They defended the charges on the basis that they were exercising an existing Métis right to fish for food. The trial judge applied the Powley test in regards to determining the existence of a historical distinctive Métis community. He did not review all of the ten criteria set out in Powley, as he found that the appellants had not proven the existence of a historical Métis community prior to effective European control. The trial judge held that the date of effective European control in the area was 1670. The appellants had not proven the existence of a Métis community in the Kouchibouguac area before 1670, or that there was a historic rights-bearing community in the area at any time before or after 1670.

The Vautour appellants submitted that the trial judge erred in not considering the factor of “self-identification”, and claimed that they “entered the courtroom as Métis and left the courtroom as Acadians”. They also argued that the trial judge failed to give proper weight to the expert testimony of Chief Stephen Augustine, of the Mic Mac Grand Council, that there existed a “shadow community” in Nova Scotia. They also relied upon findings in the Daniels case that the Métis are the most disadvantaged of all Canadians.

The Court of Queen’s Bench found that the trial judge did not err in limiting his analysis to only the initial criteria from Powley. He reviewed the historical evidence in detail and accepted the expert evidence of Dr. Steven Patterson that 1670 was the date of effective European control. This evidence was uncontradicted by the expert evidence of the Vautour appellants. DeWare J. stated:

While the appellants dispute the trial judge’s finding of fact that the date of effective European control was 1670, they do not suggest an alternative date, nor based on my review of the record have they provided evidence to the Court of the existence of a historic Métis community as defined in Powley at any time. Certainly, the appellants are correct to assert, as pointed out by the Supreme Court of Canada in Tsilhqot’in and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, that in considering aboriginal rights claims the Court must approach the question from both the common law perspective and the aboriginal perspective. However, these guiding principles do not relieve an aboriginal claimant from the burden of proof of establishing their claims. Under the circumstances, once the trial judge determined that there was not a historical Métis community in the area prior to the date of effective European control, all the other facts laid out in the ten part test of Powley become moot. In my view, the trial judge appropriately focused his analysis on the crucial question and once that was answered in the negative there was no need to delve any further into the Powley criteria.

The trial judge determined, based upon the evidence before him, that the date of effective European control was 1670 and that there was not a historical Métis community in that area at that time. The trial judge reviewed the evidence he relied upon and thoroughly explained his reasoning in coming to these findings of fact. In my view, the trial judge’s conclusions and determinations of facts with respect to these issues were well reasoned and amply supported by the evidence before him. Given the nature of the questions before the Court, the trial judge relied extensively on the expert witnesses in arriving at his findings of fact.

The Court of Queen’s Bench further held that the trial judge made no error in his treatment of the expert evidence. Chief Augustine testified at length in regards to the Mi’kmaq creation story, and it could not be said that the trial judge prevented him from doing so. Chief Augustine acknowledged that he could not define a historical Métis community in the area, but took the view that it existed as a “shadow community”. DeWare J. held that the trial judge did not overlook this evidence. The Powley test allows for Métis communities to be less visible at times due to historical circumstances, but there must be visibility at some point in time. It was open to the trial judge to accept the evidence of the Crown’s expert witnesses (Dr. Patterson and Dr. Von Gernet) with respect to issues such as the date of effective European control and the existence of a historical Métis community in the area.

The Court of Queen’s Bench therefore held that the appellants failed to establish their entitlement to the benefit of section 35 of the Constitution Act, 1982 as Métis persons. The convictions were confirmed and the appeals were dismissed.

http://www.canlii.org/en/nb/nbqb/doc/2015/2015nbqb94/2015nbqb94.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law