Her Majesty the Queen - v. -, 2011 SKPC 125

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 125 Date: September 16, 2011 Information: 6505504 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eugene Langan Appearing: Mr. James Fyfe For the Crown Mr. Charles Vermeylen For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Eugene Langan, of San Clara, Manitoba, is charged with angling without a licence at Lake of the Prairies, Saskatchewan, on May 9, 2009, contrary to s. 11(1) of The Fisheries Regulations of Saskatchewan.

That subsection provides: “no person 16 years of age or older shall angle in Saskatchewan waters unless that person holds an angling licence”.

[2] Pursuant to s. 52(1) of the Constitution Act, 1982, Mr. Langan claims that s. 11(1) of The Fisheries Regulations does notapply to him. That is because the subsection: (1) infringes his Aboriginal right to fish for food, as a Métis person, pursuant to s. 35 of theConstitution Act, 1982; and (2) discriminates against him, and therefore violates his right to equal protection and equal benefit of the lawwithout discrimination, as guaranteed under s. 15(1) of the Canadian Charter of Rights and Freedoms. [3] The parties agree that:

(1) Mr. Langan self-identifies as Métis and has Métis ancestry;

(2) Mr. Langan was born in April 1952, at Crescent Lake, Saskatchewan, and now lives at San Clara, Manitoba;

(3) A modern Métis community exists at San Clara, Manitoba, and environs;

(4) The Manitoba Department of Justice recognizes Mr. Langan as having Métis rights in the San Clara area under s. 35 of theConstitution Act, 1982;

(5) On May 9, 2009, Mr. Langan was angling at around 7:00 p.m. near Togo Bridge at Lake of the Prairies, Saskatchewan - in“Saskatchewan waters” as defined in The Fisheries Act (Saskatchewan), 1994 - without a valid Province of Saskatchewan anglinglicence; and

(6) In so doing, Mr. Langan was fishing for food. [4] Based on these facts, if s. 11(1) of The Fisheries Regulations applies to Mr. Langan, I am satisfied beyond a reasonable doubtthat the Crown has proven all elements of this offence. But does it apply to him? The issues to be determined in this case are:

(1) Does s. 11(1) of The Fisheries Regulations infringe Mr. Langan’s Aboriginal right to fish for food under s. 35 of the ConstitutionAct, 1982? and

(2) Does this subsection infringe Mr. Langan’s right to equal protection and equal benefit of the law without discrimination, asguaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms? II. DOES THIS SUBSECTION INFRINGE MR. LANGAN’S ABORIGINAL RIGHT TO FISH FOR FOOD? [5] In demonstrating that this subsection infringes his Aboriginal right to fish for food, as a Métis person, Mr. Langan mustshow, on a balance of probabilities, that his circumstances and actions satisfy the test enunciated by the Supreme Court of Canada in R.v. Powley, 2003 SCC 43 , [2003] 2 S.C.R. 207 .

That test, put into context for this case, provides a series of questions to beanswered by Mr. Langan. These are:

(1) How can the right in question be characterised?

(2) Does Mr. Langan have an ancestral connection to an historic rights-bearing community?

(3) Has that historic community continued to present day as a contemporary rights-bearing community, of which Mr. Langan is an accepted member?

(4) Was the practice of “fishing for food” integral to the historic rights-bearing community in question before it came under effective European laws and customs? and

(5) Is there a continuity between the historic practice and the contemporary right Mr. Langan asserts? 1. How can the right in question be characterised? [ 6 ] In Powley , the Supreme Court determined the right in question in that case to be the right to hunt for food in the environs of Sault Ste. Marie. At paragraph 19, the Court said: ... Aboriginal hunting rights, including Métis rights, are contextual and site-specific. The respondents shot a bull moose near Old Goulais Bay Road, in the environs of Sault Ste. Marie, within the traditional hunting grounds of that Métis community.

They made a point of documenting that the moose was intended to provide meat for the winter. The trial judge determined that they were hunting for food, and there is no reason to overturn this finding. The right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie. [ 7 ] Mr. Langan submitted that the right in question in this case be interpreted broadly - to include his right to fish for food in Manitoba and Saskatchewan.

Based on the above passage, however, I am satisfied that, like the Aboriginal right to hunt for food, the Aboriginal right to fish for food is contextual and site-specific. Mr. Langan was fishing near Togo Bridge at Lake of the Prairies, only a short distance into Saskatchewan, and a few kilometres, from San Clara, Manitoba, where he resides. The Merriam-Wester Online Dictionary defines “environs” as the surroundings of a place or as an adjoining region or space.

I accept that Lake of the Prairies is located in the environs of San Clara, and I characterise the right in question, in this case, to be the right to fish for food in the environs of San Clara, Manitoba. 2. Does Mr. Langan have an ancestral connection to an historic rights-bearing community? [ 8 ] The Supreme Court in Powley defined a Métis community as “a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life” (at para. 12). In R. v.

Hirsekorn , 2010 ABPC 385 , a Métis hunting case, Judge Fisher found, applying this test from Powley , that there was not sufficient evidence of an historic rights-bearing Métis community in southern Alberta because: (1) before effective European control “no Métis group had a sufficient degree of use, occupation, stability, or community in the area to support a site-specific constitutional right”; and (2) the evidence did not establish a Métis group in this area “with customs, traditions and a distinct collective identity from Indians” (at para. 134). [ 9 ] In his written brief on behalf of Mr. Langan, Mr.

Vermeylen submitted that: “Modern day San Clara-Boggy Creek existed prior to effective European control and is part of a larger Manitoba Métis community with continuity to the historic Métis community within Manitoba and Saskatchewan” (at pg. 13). It is not clear from this submission what the site of the historic rights-bearing Métis community is claimed by Mr. Langan to be - whether: (1) the area of or around San Clara and the nearby settlement of Boggy Creek (hereafter together referred to as San Clara); or

(2) Manitoba; or

(3) Manitoba and Saskatchewan. [ 10 ] I, however note that the Supreme Court in Powley said it was only necessary to verify that the claimants in that case belonged to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right (at para. 12). The Court further said it was not necessary to decide whether the Métis community in that case (established to be in and around Sault Ste. Marie) formed part of a larger Métis “people”, as referred to in s. 35(2) of the Constitution Act, 1982 , that extended over a wider area. [ 11 ] Mr.

Langan may, indeed, be part of a broader Métis community in Manitoba and/or Saskatchewan. However, given the site-

specific nature of the constitutional right in question in this case, as prescribed by the Supreme Court in Powley , I am satisfied that the proper question to be answered in this case is whether an historic rights-bearing Métis community existed in San Clara or environs at the time of effective European control and, if so, whether Mr. Langan has an ancestral connection to it.

I consider “environs” (the surroundings of a place or as an adjoining region or space) to in this case include the area surrounding San Clara, encompassing the Duck Mountains, the Swan River Valley, Lake of the Prairies and the site of the previous settlement of Fort Pelly. [ 12 ] The question described above, therefore, has two parts. First, did an historic rights-bearing community exist in the San Clara area at the time of effective European control in the area? Second, if such a community existed, does Mr. Langan have an ancestral connection to it? (

i) Did an historic rights-bearing community exist in the San Clara area at the time of effective European control? [ 13 ] Mr. Vermeylen, for Mr. Langan, asserts that such a Métis community existed at the time of effective European control in the area of current day San Clara. Mr. Fyfe asserts that it did not. As a result, I need to determine: (

a) when a rights-bearing Métis community came to exist in the San Clara area; and then (

b) whether that date was prior to effective European control in this area. (

a) When did a rights-bearing Métis community come to exist in the San Clara area? [ 14 ] The most relevant evidence on this question was presented by two expert witnesses. Dr. Ruth Swan testified for the defence. She was qualified as an expert in Métis history and the movement and relocation of the Métis people, including the area involved in this case. Dr. Clint Evans testified for the Crown. He was qualified as an expert in western Canadian history, with particular knowledge of Aboriginal and Métis history from Ontario westward. [ 15 ] In Dr.

Swan’s report, which was entitled Report of Métis Fishing Rights in Saskatchewan (Exhibit D-5), Dr. Swan suggested that: (1) between 1870 and 1885 Métis communities have developed across the prairies in wooded hilly areas like Riding Mountain, Duck Mountain, Wood Mountain and Cypress Hills (Alberta); (2) traditionally the Assiniboine River was a Métis traditional area; and (3) the Métis travelled around the prairies in the 1800s and lived around Duck Mountain. [ 16 ] Dr.

Evans’ report was entitled A Brief History of Métis Activities and Settlement in Southeastern Saskatchewan and Adjacent Portions of Manitoba to Circa 1905 (Exhibit P-10). In his report, Dr. Evans considered the movement and presence of Métis people during the 1880s and early 1990s in a rectangular area which includes southwestern Manitoba and southern Saskatchewan west to Last Mountain Lake. This study area is set out (from pg. v. of Dr.

Evans’ report) in Appendix I and includes San Clara (and the adjoining settlement of Boggy Creek) in the northwest portion of the rectangle. [ 17 ] At pages 15 and 16 of his report, Dr. Evans criticized the conclusions drawn by Dr. Swan by saying that he was unaware of any Métis communities that developed at either Riding Mountain or Duck Mountain during the 1870-85 period, unless Dr. Swan was referring to Indian Reserves and Bands with a significant Métis membership.

He further said he was not aware of any historical studies or primary sources that demonstrated that the Assiniboine River was a traditional Métis area. Finally, he disagreed with Dr. Swan’s statement about the Métis living in the Duck Mountain area in the 1800s, noting that Dr. Swan documented very little in her report and was in no position to make such a sweeping statement. [ 18 ] Dr. Evans’ report is extensive, covering close to 200 pages. In Mr. Fyfe’s brief to the Court, he summarised the evidence given by Dr.

Evans in his report and his testimony about the presence of the Métis in his study area as follows:

(1) while historical records for the Swan River District (northeast of San Clara) are extremely spotty for most of the 1830s, 40s and 50s, they are sufficient to show that the region remained home to a significant Métis population (Exhibit P-10 at pages 6 and 113);

(2) Red River Métis traders were active in the Swan River District during the 1850s and 60s but their activities were largely confined to the eastern edge of the district along Lake Manitoba and Winnipegosis and to the far south and west at places such as the Qu’Appelle Lakes and Touchwood Hills (Exhibit P-10 at page 46); (3) archetypical Red River Métis buffalo hunters began to establish wintering settlements on the prairies in the western part of the Swan River District by the early 1850s.

They were not the Métis that formed the first permanent Métis settlements in western Manitoba (Exhibit P-10 at page 6 and court transcript at pages 500, 529 to 532); (4) the district and local Métis lived in the same general area for several generations; were intimately connected with the local First Nations; followed a lifestyle oriented around fishing, salt making and woodland hunting that was very different from the buffalo hunting of the Red River Métis; and unlike the Red River Métis, entered into Treaty en mass e during the 1870s (Exhibit P-10 at pages 6 and 7); (5) all Métis settlements such as the one in Duck Lake became Indian Reserves, and many Indian Bands including the Sandy Bay and Ebb and Flow Bands on Lake Manitoba and the Cote, Key and Keeseekoose Bands on the Swan River and in the vicinity of Fort Pelly were largely made up of local Métis (Exhibit P-10 at pages 7, 83, 85, 86 and 112 and court transcript at page 503); (6) many Bands in the NWT lost anywhere from 50 to 90 percent of their mixed ancestry membership when they left Treaty and took Scrip in the mid-1880s.

Unlike those Bands, the vast majority of mixed blood people in the Key, Keeseekoose and Cote Bands continued to self-identify as Indians and did not withdraw from Treaty when Scrip became available (Exhibit P-10 at pages 87 and 88 and court transcript at pages 599 to 600);

(7) Gabriel Cote was Chief of the Cote Indian Band and was one of the leading Chiefs at the negotiations of Treaty 4. He and members of his Band were of mixed ancestry.

They had longstanding ties to the Fort Pelly area and self-identified as Indians and were recognized as such (Exhibit P-10 at pages 18, 27, 28 and 66 and court transcript pages 503, 516, 518, 521, 585, 596-598); (8) the Métis component of the Key, Keeseekoose and Cote Bands were likely directly connected to the short-lived Swan River Valley settlement in the late 1820s (Exhibit P-10 at page 87 and court transcript at pages 596 to 598); (9) an Anglican Mission was established at Fort Pelly in 1851. The Mission never developed beyond a missionary cabin and did not form the nucleus of a settlement.

The Mission moved to the Cote Reserve in the 1890s (Exhibit P-10 at page 62 and court transcript at pages 551 to 552 and 647); (10) the first permanent Métis settlements in the study area were formed during the 1860s at such places as Qu’Appelle, Touchwood Hills and, probably, near Fort Pelly (Exhibit P-10 at page 113); (11) various sources argue against the existence of a Métis settlement near Fort Pelly, with the exception of a Dominion Land Surveyor’s Field Note from 1873 that diagrams three “Freeman’s houses” near the Fort (Exhibit P-10 at pages 62 to 64 and court transcript at pages 552 to 555); (12) the Métis settlement at Qu’Appelle and elsewhere in the study area increased dramatically after the Rupert’s land transfer and the arrival of Canadian authorities at Red River in 1870; the Fort Qu’Appelle area was the main centre of Métis activity in the entire Swan River District (Exhibit P-10 at pages 69, 70, 71 and 114); (13) by 1885, most of the Métis population was concentrated around the Qu’Appelle Lakes, Touchwood Hills, Fort Ellis, and to a lesser extent, Fort Pelly (Exhibit P-10 at page 114 and court transcript at page 504); (14) by the 1880s Fort Pelly would have been reduced to a store that did a bit of fur trading on the side; the Fort closed in 1910 (Exhibit P-10 at page 646);

(15) NWMP reports from the early 1890s mention only “a few half-breeds at Fort Pelly”.

Places such as Fort Pelly were really only home to a handful of families, most of whom probably did not actually reside in or near the Post but were scattered throughout a fairly broad area (Exhibit P-10 at pages 103 and 104 and court transcript at page 645); (16) the 1901 census of Canada reports no Métis living in the eastern part of Assiniboia east at places such as Churchbridge, Kamsack, Langenburg, Saltcoats or Yorkton; only 60 Métis are listed in the six census sub-districts covering the western half of Riding Mountain and the southern part of Duck Mountain including the sizable communities of Russell and Shellmouth (Exhibit P-10 at page 107 and court transcript at pages 629 and 630); and (17) one part of the study area where Métis presence appears to have been particularly light was around Duck Mountain.

Historical documents from a number of sources suggest that the only Aboriginal people who regularly utilized this area and the Swan River and Assiniboine River were members of the Cote, Key and Keeseekoose Bands (Exhibit P-10 at pages 84, 85, 87, 88, 114 and 115 and court transcript at pages 505, 598 and 599). [ 19 ] Of most significance to the present case, Dr. Evans found no Métis presence during the 1800s in the San Clara or Boggy Creek areas in various historical records which included:

(1) reports of Captain John Pelleser from his travels in the study area in 1857 and 1858 (Exhibit P-11, tab 21 and Exhibit P-10 at pages 50 to 53 and court transcript at pages 534 to 536); (2) reports of geologist Henry Hind from his travels and his team’s branch expeditions in the study area in 1857 (Exhibit P-11, tabs 22 and 23; Exhibit P-10 at pages 53 to 56 and court transcript pages 539 to 541); (3) reports of four surveyors of the Canadian Pacific Railway, Frank Moberly (in 1871), Granville Cunningham (1874), Henry McLeod (1875) and Marcus Smith (1879), who all surveyed an area including the San Clara area (Exhibit P-11, tabs 37, 38, 39, 40 and 41 and Exhibit P-10 at pages 89 and 90 and court transcript at pages 600 to 605); (4) surveys of geologists Robert Bell and Joseph Spencer, who in 1874 explored the country east of the Assiniboine River including Big and Little Boggy Creeks (Exhibit P-11 at tabs 42 and 43 and Exhibit P-10 at pages 90 and 91 and court transcript at pages 605 to 608); (5) an 1881 survey of botanist John Macoun, who focused on Duck Mountain and the Upland Region east of Fort Pelly (Exhibit P-11 at tab 44 and P-10 at page 91 and court transcript at pages 608 to 609); and (6) reports and map of geologist and historian Joseph Tyrrell, who, over the course of four seasons, investigated the country between Lakes Manitoba and Winnipegosis and the Assiniboine River; Tyrrell devoted a paragraph each to Big and Little Boggy Creeks in his 1889 notes; no mention of any Métis presence in the area was made (Exhibit P-10 at pages 77 and 78 and court transcript at page 581 to 583). [ 20 ] Further, Dr.

Evans stated that San Clara was not mentioned in any Scrip applications and that Boggy Creek and Duck Mountain were mentioned in one application each (Exhibit P-10 at pages 77 and 78 and court transcript at pages 581 to 583). Taken together, the detailed nature of Dr. Evans’ report, and the primary sources he has stated in support of his conclusions, satisfy me of the accuracy of the following conclusion: The Boggy Creek and San Clara area was not homesteaded until about 1904, and the earliest homesteaders were not Métis.

Sometime between 1906 and 1910, Boggy Creek and San Clara began to assume a “Métis character”, as various people from North Dakota with common Métis names began to homestead in the area. (Exhibit P-10 at pages 110, 111, 115 and 116 and court transcript at pages 506, 631 to 635, and 648 to 651) [ 21 ] Nothing in the testimony or report of Dr. Swan disagreed with this conclusion.

Nor does the defence evidence about the cemetery at San Clara (the pictures of gravestones (Exhibit D-46) with no indication of when these people arrived in the area and the testimony of Jules Brazeau (at pg. 413 of the court transcript) that there are unmarked graves “probably in the early 1800s”, yet with no indication or proof of who these people were or what their ancestry was) cause me to reject Dr.

Evans’ conclusion. [ 22 ] That leaves open the possibility that the Métis community of San Clara was a later day incarnation of an earlier Métis community in the San Clara area, which continued to exist but was less visible or invisible for some time and then re-emerged later in this area. In Powley , the Supreme Court affirmed that the Métis community in Sault Ste.

Marie continued to exist, but was essentially an invisible entity from the mid-nineteenth century to 1970 (para. 24). [ 23 ] The evidence at this trial suggest two possible sources of such an historical Métis community in the San Clara area, the first in the Swan River District and the second at Fort Pelly:

(1) As outlined earlier in this judgment, Dr. Evans testified that historical records were sufficient to show that the Swan River District remained home to a significant Métis population from 1830 - 1850, but that, unlike the Red River Métis buffalo hunters who established wintering settlements in the western part of the Swan River District by 1850, the permanent Métis residents of this area were intimately connected to the local First Nations, and entered into Treaty en masse during the 1870s.

Although the defence submitted that Louison Genaille (great-grandfather of Charles Vermeylen’s mother) received a discharge from the Keesekoose Band and applied for Scrip at Qu’Appelle in 1886, with his address declared as Fort Pelly (Exhibits D-35 and 36), Dr. Evans maintained that the mixed blood population in the Fort Pelly and Swan River area predominantly entered and remained under Treaty;

(2) The other possible historic Métis settlement is at Fort Pelly, where an Anglican Mission began in 1851 and moved to the Cote Reserve in 1890. The defence submitted that Baptiste Bourassa applied for Scrip at Fort Pelly on November 19, 1887 (see Exhibit D-41) and further provided a map from the Manitoba archives showing Red River Cart trails from the Red River settlement to Fort Pelly at a

date not indicated on the map (Exhibit D-43). Dr.

Evans, however, testified that the mission at Fort Pelly did not form the nucleus of aMétis settlement and said, at most, there were a few Métis families in or around the Fort Pelly area. [24] Taken together, the evidence presented does not satisfy me on a balance of probabilities that the current Métis community atSan Clara is the continuation or re-emergence of any historic Métis community comprised of either: (1) the Métis who lived in the SwanRiver District from 1830 - 1850, and who I accept entered Treaty along with First Nations in the area in the 1870s; or (2) any Métisfamilies that lived at or near Fort Pelly between 1870 and the early 1990s.

I find that the Métis community in San Clara and environswas formed in 1906 when Métis people moved from North Dakota to homestead this area. (

b) What was the date of effective European control in the San Clara area? [25] In Powley, the Supreme Court said the following about when effective European control occurred in the Sault Ste. Marie area: The historical record indicates that the Sault Ste. Marie Métis community thrived largely unaffected by European laws and customs untilcolonial policy shifted from one of discouraging settlement to one of negotiating treaties and encouraging settlement in the mid-19thcentury.

The trial judge found ... that "effective control [of the Upper Great Lakes area] passed from the Aboriginal peoples of the area(Ojibway and Métis) to European control" in the period between 1815 and 1850 (para. 90). The record fully supports the finding that theperiod just prior to 1850 is the appropriate date for finding effective control in this geographic area.... (at para. 40) [26] In determining the date of effective European control in the area of San Clara, it is of assistance to consider two Métis fishingcases from this Court. In R. v.

Laviolette, 2005 SKPC 70, Judge Kalenith considered this date in relation to the Métis community innorthwestern Saskatchewan, including Meadow Lake and Green Lake. He found that “effective control takes place when the Crown’sactivity has the effect of changing the traditional lifestyle and the economy of the Métis in a given area” (para. 37). He found that date tobe 1912, when: (1) the Department of the Interior established townships near Green Lake; and (2) the Métis registered their land claimsunder the new land system. [27] In R. v.

Belhumer, 2007 SKPC 114, Judge Morris held, in considering the date of effective European control for the Métisliving in the Qu’Appelle Valley and environs, to be between 1882 and the early 1900s. She found this was the date when the Crown’sactivity had the effect of changing the land tenure, lifestyle and economy of the Métis in this region, as: (1) the first Dominion LandOffice was established in the Qu’Appelle Valley in 1882;

(2) Métis Scrip Commissions were established in 1885, 1886, 1887 and 1899 inan attempt to address Métis land claims, and visited Fort Qu’Appelle in these years; and (3) there was evidence that the Métis continuedto hunt and fish as they always had until the early 1900s. [28] Further, in Minister of National Revenue v. Ochapowace Ski Resort Inc., 2002 SKPC 84 , [2002] 4 C.N.L.R. 76(Sask. Prov. Ct.), Judge Rathgeber rejected the view that Canada had not established effective control or occupation over the areacovered by Treaty 4 (which includes the San Clara area) by 1874.

He found (at paragraph 76) that the Crown had establishedsovereignty over the Treaty 4 area both in law and fact by 1874, and that Indian nations or individuals were not sovereign at that time butwere subjects of the Queen. [29] Respecting the date of effective European control in the area of San Clara, Dr.

Swan’s evidence was that effective Europeancontrol did not happen in this area until 1930, when the prairie provinces gained control over lands and resources under the NaturalResources Transfer Agreement of 1930 and when Métis children were forced to go to school by the Province of Saskatchewan (transcriptpages 57, 61 and 62). In argument, Mr.

Vermeylen submitted that effective European control in this area occurred during the 1930s, as aresult of Métis children being forced to attend school and of Métis starting to be charged with wildlife offences. [30] Regarding the issue of education, an affidavit of Clara Langan Vermeylen, Charles Vermeylen’s mother (now deceased), wastendered as Exhibit D-9. While the affidavit is unsworn, I am satisfied that the contents of the affidavit were read to her by MabelVermeylen, in October 1998, at which time Clara was very ill with cardiac problems, arthritis and diabetes.

I am also satisfied that thecontents of this affidavit accurately represent Clara Vermeylen’s views and beliefs at the time, as Mabel Vermeylen confirmed with herthe accuracy of its contents. The affidavit indicates that Clara was born in San Clara in 1925, and only attended grade one. From this, itwould appear she was not forced to attend school in or around 1930.

[ 31 ] Regarding the provincial prosecution of wildlife offences, the defence tendered, through defence witness Gary Martin, a Fisheries Time Line (Exhibit D-45) which Mr. Martin obtained through the Métis Nation of Saskatchewan.

Under the heading “June 1931”, the Time Line summarised a letter from the provincial Supervisor of Fisheries which stated that Métis (or so-called half-breeds) would no longer receive free fishing permits, and that Métis would otherwise be treated like other non-First Nations fishers. [ 32 ] The Crown submitted that effective European control in the San Clara area was established between 1870 and 1874. This was said to be a period which evidenced - as in Powley - a colonial policy shift in favour of encouraging settlement and beginning Treaty negotiations. In particular, the Crown cited the following evidence:

(1) Passage of the Manitoba Act, 1870 created the Province of Manitoba, which was followed by the signing of Treaties 1 and 2 in 1871 and Treaty 4 in 1874, the latter which covers most of present day Saskatchewan and includes the San Clara area. Dr. Evans testified that the mixed blood population in the Fort Pelly and Swan River areas predominantly entered into and remained under Treaty;

(2) Dr. Evans testified that the Dominion Lands Branch began an extensive survey program in 1871, and that his study area (including San Clara) was a primary focus of the railway and geological surveys undertaken; and

(3) The arrival of Canadian troops at Red River in 1870 and the subsequent arrival of the North West Mounted Police (NWMP) was also significant. The NWMP was in 1874 stationed near Fort Pelly at Fort Livingstone. Fort Livingstone became the first NWMP headquarters in the North West Territories (NWT) and briefly served as the NWT’s capital from 1876-77. The police presence in the area expanded, with officers stationed at Yorkton, Fishing Lakes, and Kamsack, all near the present day Lake of the Prairies. [ 33 ] Mr. Fyfe, based largely on Dr.

Evans’ report, further submitted in his brief that other evidence established that European control continued and was augmented after 1874: Licenced sawmills had been in operation in the Riding Mountain area as early as 1879. By 1885, a timber permit had been granted for the Little Boggy Creek area, which was one of 1,772 such permits granted that year. Violations of the regulations were being prosecuted. Dr. Evans reported that by 1885, the study area had been transformed into one of the fastest growing and most extensively settled portions of the NWT.

It was overlain with a grid pattern survey; traversed by the CPR which had reached Swift Current by 1882; dotted by Indian Reserves; and regularly patrolled by the NWMP. By the late 1880s the Dominion survey had done block or townships surveys to the south end of the Duck Mountains; and the Manitoba and Northwestern Railway was about to reach its terminus at Yorkton. Non- Aboriginal settlement dwarfed the Métis population. An 1895 census conducted by the NWMP reported that 867 Métis and 33,925 non- Aboriginal people were living in the Assiniboine District (which covered the study area).

By 1887, all fisheries in the study area were regulated and Métis fishermen were subject to these regulations. While it is unclear whether or to what degree the regulations were initially being enforced, by 1892 local NWMP officers were being appointed as special fisheries guardians to enforce them. There was no better example of the Dominion Government’s effective control over NWT than the Métis defeat at Batoche at the hands of Canadian troops and the subsequent trial and hanging of Métis leader, Louis Riel, at Regina in 1885. According to Dr. Swan, Métis families at Batoche, including that of Mr.

Langan’s ancestor, Louis Lafontaine Sr., moved to North Dakota as “refugees” in the aftermath of the Batoche defeat. With this in mind, it is hard to understand how effective European control could be found on the prairies any later than 1885. (pgs. 35 - 37) [ 34 ] In my view, the central issue in this case, and hence the significance of when effective European control occurred, can be distinguished from that determined in both Laviolette and Belhumer.

Each of those cases involved longstanding Métis communities (in northwestern Saskatchewan and in the Qu’Appelle Valley and environs, respectively) which predated effective European control by many years. As a result, the primary issue in these cases appears to me to be what the boundaries of the historic rights-bearing community in question were at the time of effective European control, not whether such a Métis community - of whatever geographic expanse - existed in the area at the time of effective European control. In this case, however, the central issue is exactly that.

It is whether effective European control in the San Clara area happened before or after the San Clara Métis community was formed, which I have already determined occurred in 1906. [ 35 ] There is no one factor that leads to a conclusion on when effective European control occurred. I, however, find persuasive the

test applied in Powley , which was when “colonial policy shifted from one of discouraging settlement to one of negotiating treaties and encouraging settlement” (para. 40). The evidence, related to this test, in one fashion or another, which I find to be of the most assistance in determining the date of effective European control in the San Clara area was Dr. Evans’ evidence that:

(1) Treaty 4 was signed in 1874, covering much of southern Saskatchewan and as well the San Clara area;

(2) An extensive geological and railway survey untaken in this area beginning in 1871;

(3) The NWMP established headquarters near Fort Pelly in 1874;

(4) A timber permit was granted for the Little Boggy Creek area in 1885, one of 1,772 permits granted that year;

(5) By 1874, the study area for his report was overlain with a grid pattern survey, traversed by the CPR, dotted by Indian Reserves and regularly patrolled by the NWMP;

(6) An 1895 census conducted by the NWMP reported that 867 Métis and 33,925 non-Aboriginal people lived in the Assiniboine District (which covered Dr. Evans’ study area); and

(7) In 1885, the defeat by Canadian troops of Louis Riel’s army at Batoche, leading many Métis, including Mr. Langan’s ancestor Louis Lafontaine Sr., to move as refugees to North Dakota. [ 36 ] I also note Dr. Swan’s evidence that some Métis people who homesteaded in the San Clara area in the early 1900s lost their land due to tax arrears (Exhibit D-5 at pg. 3).

It stands to reason that the government authority and structure to regulate the homesteading of this area, and the enforcement of tax arrears, is a further sign that effective European control had already occurred by the early 1900s. [ 37 ] I do not accept that the date the Province of Saskatchewan assumed control over the regulation of fisheries (1930) to be relevant in determining the date of effective European control. As early as 1892, local NWMP officers were being appointed as special fisheries guardians to enforce the (then) federal fishing regulations.

In my view, whether the so-called European authority came from the federal or from a provincial government is of no consequence, and does not answer the question of when effective European control occurred. Nor would the beginning of prosecutions for fishing offences - if in fact that occurred in the 1930s - prove that the federal government did not previously exercise authority and control over fisheries. [ 38 ] Regarding the issue of education of Métis children, there was no clear evidence on when or how Métis children were compelled to attend government schools, other than Dr.

Swan’s statement that this occurred in the 1930s and Clara Vermeylen’s statement that she only attended grade one. While a statutory regime for education - whenever this occurred - may have been one sign of European control in the area, I do not find this issue, in itself, to be determinative in when that control occurred. [ 39 ] While it is possible this occurred earlier, I am nevertheless satisfied, and find, that, by 1885, there was effective European control in the area of San Clara.

I make that finding considering: (1) the efforts taken toward the negotiation of treaties; (2) the settlement and development of this area by non-Aboriginals; (3) the control exercised by non-Aboriginal government(

s) in this area; and

(4) Judge Rathgeber’s ruling in M.N.R. v. Ochapowace rejecting a suggestion that Canada had not established control or occupation over the Treaty 4 area (which includes San Clara) by 1874. As a result, given my earlier finding that the Métis community in San Clara was formed in 1906, I am not satisfied that an historic rights-bearing community existed in the San Clara area at the time of effective European control. (ii) If an historic rights-bearing community existed in the San Clara area at the time of effective European control, does Mr. Langan

have an ancestral connection to it? [40] As I am not satisfied that an historic rights-bearing community existed in the San Clara area at the time of effective Europeancontrol, this question does not have to be answered. I do, however, accept, through the evidence presented by Mr.

Langan - in particularhis genealogy entitled “Ancestors of Eugene Langan” written by La Societe Historique de Saint-Boniface in 2010 (Exhibit D-33) - thathe has ancestral connections to North Dakota (with two of his grandparents, Edouard Langan and Marie Lafontaine and his great-grandmother Adele Amyot born in North Dakota in 1898, 1911 and 1878 respectively) and to the Red River settlement (with many of hisgreat and great great-grandparents being baptized at St. Francois-Xavier, Manitoba over dates ranging from 1825 - 1854). [41] I also accept that Mr.

Langan has ancestral connections to the present day Métis community of San Clara, in particular Iaccept that his paternal grandfather Edouard Langan fathered a son named Elmer Langan (Eugene Langan’s father) who was born in1921 at Boggy Creek. As well, Mr. Langan’s great-grandmother Marie Richard died in 1936 and is buried in the San Clara cemetery(with her tombstone pictured in Exhibit D-46). Finally, Mr. Langan’s great-grandfather Genor Lafontaine is listed in Dr. Evans’ reportas taking homestead in San Clara in 1922 (at pg. 183). 3.

Has that historic community continued to present day as a contemporary rights-bearing community of which Mr. Langan isan accepted member? [42] As I am not satisfied that an historic rights-bearing community existed in the San Clara area at the time of effective Europeancontrol, this question does not have to be answered. I am, however, satisfied - and it does not appear that the Crown contests this point -that Mr. Langan is an accepted member of the present day Métis community in San Clara, given the video presented of the 2005community feast which he was a part of (Exhibit D-32), given Mr.

Langan’s evidence that he understands and speaks the Michiflanguage which is used in San Clara (and documented in Exhibit D-31), and given the strong support for Mr. Langan from the San Claracommunity during the course of this trial. 4. Was the practice of “fishing for food” integral to the historic rights-bearing community in question before it came undereffective European laws and customs? [43] As I am not satisfied that an historic rights-bearing community existed in the San Clara area at the time of effective Europeancontrol, this question does not need to be answered.

I am, however, satisfied, based on the unsworn affidavit of Clara Vermeylen(Exhibit D-9) and the testimony of Mr. Langan, that “fishing for food” on the Assiniboine River (which includes Lake of the Prairies)was and is an important practice amongst members of the Métis community of San Clara, which I have determined was founded in 1906. 5. Is there a continuity between the historic practice and the contemporary right Mr.

Langan asserts? [44] As I am not satisfied that an historic rights-bearing community existed in the San Clara area at the time of effective Europeancontrol, there is no need to consider the issue of continuity. III. DOES THIS SUBSECTION INFRINGE ON MR. LANGAN’S RIGHT TO EQUAL PROTECTION AND EQUALBENEFIT OF THE LAW WITHOUT DISCRIMINATION? [45] The Supreme Court of Canada in R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483, affirmed a two-part test forshowing discrimination under s. 15(1) of the Charter:

(1) Does the law create a distinction based on an enumerated or analogousground?

(2) Does the distinction create a disadvantage by perpetrating prejudice or stereotyping? (as per the head note of this case) [46] Mr. Fyfe argued that s. 11(1) of The Fisheries Regulations is a law of general application that does not create any personal orgroup distinctions that could form the basis of a s. 15 claim. Further, he submitted that Mr. Langan did not call any evidence that theprovision’s application creates or perpetuates any disadvantage to himself or any other group to which that provision applies.

[ 47 ] As I understand Mr. Vermeylen’s submission on behalf of Mr. Langan, a person holding a Manitoba fishing licence could, by virtue of the authority of the Manitoba Angler’s Guide (Exhibit D-29) fish on Lake of the Prairies, in Saskatchewan, without holding a Saskatchewan fishing licence. As a result, it is argued that, because Mr. Langan need not hold a Manitoba licence, given the position of the Manitoba Government that Mr.

Langan has s. 35 rights in the San Clara area, he is being discriminated against by the Government of Saskatchewan, because they do not agree that he has an Aboriginal right to fish for food on Lake of the Prairies. [ 48 ] The question to be determined is whether s. 11(1) of The Fisheries Regulations discriminates against Mr. Langan. It is not whether the decision to charge Mr. Langan, in itself, constituted such discrimination.

In considering the arguments advanced, I find The Fisheries Regulations (including s. 11(1)) to be a law of general application that does not create any personal or group distinctions that could form the basis of a s. 15 claim. Further, I am not satisfied on a balance of probabilities that the provision’s application creates or perpetuates any disadvantage to Mr. Langan or to any other group to which the provision applies. The claim under s. 15(1) of the Charter is dismissed. IV. CONCLUSION [ 49 ] I thank Mr. Vermeylen and Mr. Fyfe for their submissions and assistance during the many months that Mr.

Langan’s charge was before the Court. For the reasons set out above, I am not satisfied on a balance of probabilities that s. 11(1) of The Fisheries Regulations : (1) infringes Mr. Langan’s Aboriginal right to fish for food, as a Métis person, pursuant to s. 35 of the Constitution Act, 1982 ; or (2) discriminates against him, and therefore violates his right to equal protection and equal benefit of the law without discrimination, as guaranteed under s. 15(1) of the Canadian Charter of Rights and Freedoms . [ 50 ] As a result, I am satisfied that this subsection applies to Mr.

Langan and find him guilty as charged. R. Green, J