Ontario Government goes to the Supreme Court of Canada to appeal the Ontario Court of Appeal decision in the Powley case - Metis hunting rights.

The Ontario Court of Appeal ruled that Steve Powley and his son Roddy charged under the province's Game and Fish Act, enjoy the same hunting rights granted to aboriginal people by the Canadian constitution.

The question of Metis rights is a matter of first impression, or, in other words, there is yet no Supreme Court of Canada decision that sets the basic principles of the doctrine of Aboriginal rights as it pertains to Metis people. The courts will have to define these rights, and thereby, also define the people in whom the rights are vested.

This is not the best situation, since a people's most fundamental rights should be elaborated in discussions with the political representatives of the people themselves. Unfortunately, the Court has to pick up what the politicians left undone after the rights of the Metis were constitutionalized in 1982.

In 1983, at the start of the First Ministers Conferences on Aboriginal Constitutional Reform, the Metis National Council was formed to represent the Metis Nation, or Riel's people in the West. That is the well-known buffalo hunting culture of the Prairies, known by its symbols of the Red River Cart, the armed horsemen, the sash and the buffalo.

The MNC asserted its rights as a 'people' which is calls a 'nation', and tried to get agreement on the definition of some aboriginal rights.

Now it is a well known dictum that 'Hard Cases make Bad Law'. A first case to reach the Supreme Court of Canada should preferably have dealt with a readily recognizable fact situation, in the middle of the Metis homeland on the Prairies. The Powley facts as revealed in the Ontario Court of Appeal do not show a relationship to the Metis Nation.

There is a difference between political affiliation with the MNC on one hand, and recognition as groups having common law rights, on the other hand. Common law aboriginal rights such as hunting rights, are based on a relationship with the land, and not with political or social affiliation with a larger group. So that complicates the question of identifying 'the Metis Nation'.

If the rights are related to the land, hunting rights cast a doubt of uncertainty about the rights of competing Aboriginal users. Canada did not recognize any 'Metis' groups as having a distinct identity when it signed the 1850 treaty in the Sault Ste Marie area; persons living with the 'Indians' were accepted into the treaty and those not living with them were not recognized as Indians. If a new group is found to have rights to use land by hunting, that does not clarify the legal nature of the rights of those who signed the treaties to do the same thing, that is, to hunt moose. There is a conflict, and the law ought to resolve conflicts, and not create them.

Another difficulty about cases that try to force a definition of 'Metis' is that many people who have lived near Indian reserves are related to the reserve people, and live essentially the same life style. On ordinary tests, one would conclude those people are also Indians, but since they do not have Indian status within the meaning of the Indian Act, they identify themselves as Metis, and sometimes as 'non-status Indians'. It is too bad that much 'Metis' identity is being built at the boundary of Indian definition when Indian definition is itself so badly defined by the history and application of the Indian act.

In principle, Indian definition should be revised and clarified, so that people who are in a position to make a choice about their Aboriginal identity, will do so with clear eyes. It is obvious that being of 'mixed-blood', a racist misnomer inherited from the British tradition, has no meaning for Metis definition; most status Indians are mixed blood and Indian definition had never been based upon 'blood' or 'race'.

Status Indians are those who were politically recognized as Indians when treaties were signed, or reserves set aside, and then as defined down through the male head of family. It is not a matter of 'blood', but of a combination of rules designed to identify a community through the medium of the nuclear family.

The Powley case also gives the Courts an opportunity to clarify and better the doctrine of Aboriginal rights. At the moment, the temporal test for proof of aboriginal title is different from the test for proof of other aboriginal rights.

If one common historical baseline were to be adopted, then we would have a more sensible and just test, and a test for identifying all Aboriginal people, not only the Metis.

The test would be those who were recognized as Indians or Metis at the time that the Government undertook a fiduciary relationship, when it took over government authority in a particular region. That would vary across the country, and would be determined by historical facts, and not by fictions such as 'doctrine of discovery' or 'terra nullius'.

We will better achieve reconciliation if together, even in the courts, we look back together on our common history, and determine what rights history brings us that must be cherished today and tomorrow for a good relationship.

Looked at it this way, it is evident that the 'mixed-blood' myth must be jettisoned, and replaced by a coherent and principled doctrine'.

Paul L.A.H. Chartrand
is a is a Métis from Manitoba - a commissioner with the Aboriginal Justice Implementation Commission of Manitoba He currently works as a private consultant in Victoria, British Columbia.