2018 QCCA 1172, 2018 QCCA 1172

Corneau c. Procureure générale du Québec 2018 QCCA 1172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC Nos.: 200-09-008957-158 , 200-09-008958-156, 200-09-008959-154, 200-09-008960-152, 200-09-008961-150, 200-09-008962-158, 200-09-008963-156, 200-09-008964-154, 200-09-008965-151, 200-09-008966-159 (150-05-002108-001) (150-05-003511-088) (150-17-000584-034) (150-05-003517-085) (150-05-003514-082) (150-05-003497-080) (150-05-003498-088) (150-05-003513-084) (150-05-003508-084) (150-05-003495-084) DATE: July 18, 2018 CORAM: THE HONOURABLE LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. MARIE ST-PIERRE, J.A.

No.: 200-09-008957-158 (150-05-002108-001) GHISLAIN CORNEAU APPELLANT – Respondent v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008958-156 (150-05-003511-088) MIVILLE CORNEAU APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE

IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008959-154 (150-17-000584-034) STÉPHANE CORNEAU APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008960-152 (150-05-003517-085) MARTIN PELLETIER APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF RIVIÈRE-ÉTERNITÉ IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008961-150 (150-05-003514-082) JEAN-MARIE GAGNÉ GABRIELLE SIMARD APPELLANTS – Defendants v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER

No.: 200-09-008962-158 (150-05-003497-080) ANDRÉ LALANCETTE APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008963-156 (150-05-003498-088) CLÉMENT LALANCETTE APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008964-154 (150-05-003513-084) RICHARD RIVERIN APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No.: 200-09-008965-151 (150-05-003508-084) GABRIEL JEAN APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER

No.: 200-09-008966-159 (150-05-003495-084) MARC SIMARD APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Applicant and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER JUDGMENT [ 1 ] The appellants appeal from ten judgments rendered on February 10, 2015, by the Superior Court, District of Chicoutimi (the Honourable J.

Robert Banford (“the judge”), [1] granting the respondent the Attorney General of Quebec’s applications for dispossession pursuant to ss. 54 , 60 , and 61 of the Act respecting the lands in the domain of the State . [2] GENERAL OVERVIEW [ 2 ] The facts are not in dispute. The trial judge summarized them in the following terms: [3] [ translation ] [1] In the judicial district of Chicoutimi and surrounding area, many people occupy sites on public lands without any property right, lease or occupancy permit.

Yet, s. 54 of the Act respecting the lands in the domain of the State (the Act) formally prohibits such actions. [2] Several of these offenders were told to leave by the Attorney General of Quebec. Some complied while others objected, claiming that they were exercising an aboriginal right. [3] The respondent Ghislain Corneau is one of them.

In December 1999, the Crown therefore brought an application against him for dispossession pursuant to ss. 54 , 60 , and 61 of the Act . [4] The application was initially contested, respondent Corneau arguing that his aboriginal right is protected under s. 35(1) of the Canadian Constitution , due to his Montagnais origins. [5] Slowed by various incidental proceedings, the contestation had yet to be joined in the case when the Supreme Court of Canada rendered R. v. Powley in September 2003.

In that judgment, the country's highest court clarified the test to be used to define the aboriginal rights of the Métis that have been recognized and confirmed under s. 35(1) of the Constitution Act, 1982 (the “ Constitution Act ”). [6] This event led the respondent Corneau to amend his contestation in March 2006, this time to argue his Métis status based on the test set out in Powley , supra . [7] The Court then granted the Domaine du Roy and Mingan Seignory Metis Community (DRMSMC), the right to a conservatory intervention in the dispute. [8] Judgment was rendered on March 24, 2010, by the Court of Appeal of Quebec granting a similar right to the Mashteuiatsh and Essipit First Nations whereas the Nutashkuan First Nation was granted the right to intervene for the sole purpose of making submissions. [9] Meanwhile, the Attorney General instituted several applications for dispossession against other respondents in the judicial district of Chicoutimi.

On May 1, 2009, judgment was rendered ordering seventeen of these files to be joined for a joint hearing. [10] Among all the cases joined, fourteen were contested through a consolidated defence in which each and every respondent relied on aboriginal rights recognized under s. 35 of the Constitution Act, 1982 , including those granted to the Métis. [References omitted.] [ 3 ] From a procedural standpoint, it is also noteworthy that out of the fourteen cases joined and heard by the trial judge, only ten are inscribed in appeal.

Similarly, the Métis National Council, which represents the Métis Nation on a national level, was authorized to bring a conservatory intervention to assist the Court by casting light on certain questions of law raised by the parties. [4] POWLEY JUDGMENT

[ 4 ] The trial judgment is an application of the Powley [5] judgment rendered by the Supreme Court in 2003. Also, before proceeding further and for greater understanding, it is important to briefly review the Supreme Court’s decision regarding the constitutional rights of the Métis people guaranteed under s. 35 of the Constitution Act, 1982 , [6] which states: 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act , "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. … 35.

(1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés. (2) Dans la présente loi, « peuples autochtones du Canada » s'entend notamment des Indiens, des Inuit et des Métis du Canada. … [ 5 ] Charged with unlawfully hunting moose, in contravention of Ontario legislation, Steve Powley and his son Roddy argued that, as Métis, they had an aboriginal right to hunt for food in the Sault Ste. Marie area.

The Supreme Court therefore had to decide whether the members of this community had a constitutional right to hunt for food within the meaning of s. 35 of the Constitution Act, 1982 . [ 6 ] The Supreme Court answered this question in the positive by pointing out first the collective nature of s. 35 protected rights and the fact that the Métis identity is not just a question of genetics.

Ancestry is one of the criteria, but culture and identity are the most important: [7] 10 The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European 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. … 11 The Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots. 12 ...

A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. … 13 ...

The purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture. … 23 In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Métis community that can support a claim to site-specific aboriginal rights. We recognize that different groups of Métis have often lacked political structures and have experienced shifts in their members’ self-identification.

However, the existence of an identifiable Métis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. … [ 7 ] Because aboriginal rights are communal rights, they “must be grounded in the existence of a historic and present community.

They may only be exercised by virtue of an individual’s ancestrally based membership in the present community”. [8] It is therefore necessary to establish the existence of an identifiable Métis community, characterized by some degree of continuity and stability, [9] and then verify the membership of the individual claiming an aboriginal right in the modern community in question. [10] [ 8 ] Because the formation in Canada of different Métis cultures necessarily follows first contact with Europeans, the Supreme Court also had to adapt the applicable test to define aboriginal rights of Indians and Inuits, which rests on the fact that these populations pre-date contact with Europeans. [11] With respect to the Métis, the Supreme Court therefore decided that it was instead the period following the creation of a given community but predating its subjection to the laws and customs of Europeans or the latter’s effective control over the territory that should be accepted. [12] 17 ...

The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. The inclusion of the Métis in s. 35 represents Canada’s commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other aboriginal communities. … 37 ...

By analogy, the test for Métis practices should focus on identifying those practices, customs and traditions that are integral to the Métis community’s distinctive existence and relationship to the land. This unique history can most appropriately be accommodated by a post-contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area. The focus should be on the period after a particular Métis community arose and before it came under the effective control of European laws and customs.

This pre-control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on the Métis. [ 9 ] The date of the effective control over the land therefore has a significant impact on the recognition or determination of the constitutional rights of a given Métis community.

[ 10 ] The analysis, in principle, does not stop there. However, since the respondent did not adduce any evidence concerning the other criteria set out in the Powley test, [13] and the trial judge found that the appellants had met them, [14] there is no cause, at this point, to say any more on this Supreme Court judgment. THE SUPERIOR COURT JUDGMENT [15] [ 11 ] The trial judgment is over 70 pages long. Its content is primarily factual. No less than 16 experts (historians, a geographer, an anthropologist, an ethno-historian, a geo-historian, and a sociologist) testified.

The hearing lasted 32 days, with oral arguments lasting an additional 5 days. There is no question here of summarizing the judgment in extenso . Its various aspects will instead be examined in the course of our analysis of the grounds raised by the appellants.

That being so, and to properly understand these grounds and the issues raised by the appeals, the broad strokes of the trial judgment should be recalled. [ 12 ] Let us first add that the respondent does not contest the appellants’ characterization of the right they claim, [16] that is, the right to maintain a “camp” as an accessory to their traditional practice of hunting, fishing, trapping, and berry picking activities for food. [17] [ 13 ] This first step of the Powley test being met, the judge moved on to the second, the identification of the historic rights-bearing community, which is the heart of the judgment. [18] In his view, the evidence adduced by the appellants failed to show on a balance of probabilities that there was such a community. [19] His reasons are as follows: [ 14 ] First, the judge reviewed the factual situation that prevailed in Powley and the evidence presented to the trial judge in that case clearly establishing the existence of a culturally and ethnically recognizable and distinct community. [20] He then accepted the following identification criteria: [21] [ translation ] [55] Overall, according to the teachings of Powley , which is still followed today, several elements are likely to allow a court to identify, from a legal standpoint, a historic Métis community, in particular: (

a) a group of individuals of mixed ancestry, Indian and non-Indian; (

b) living together, as a society, on the same territory; (

c) having developed a culture, customs, and traditions that are distinct from those of their Indian and non-Indian ancestors and recognized by other ethnicities; (

d) having an awareness of its collective identity and capable of expressing it on occasion. [ 15 ] The judge then [22] presented the appellants’ evidence, which was based on (1) a 2005 study by genealogist Ser-Alexander Alemann describing how Aboriginals and Euro-Canadians were mixed in the area identified as that of the Domaine-du-Roy-Mingan, (2) the work of historian Russel Aurore Bouchard, [23] who published many works on the history of the settlement of the Saguenay-Lac-St- Jean area, (3) the testimony and report of four experts (Emmanuel Michaud, an anthropology doctoral student, geographer Etienne Rivard, ethno-historian Serge Gauthier, and historian Jacques Lacoursière). [ 16 ] In his analysis of this evidence, the judge first noted that the theory presented by genealogist Alemann, who did not testify, reduced the essence of ethnicity to mere kinship. [24] Moreover, the judge found that the reconstruction of the family trees of 16 Métis lines was of relative quality, even doubtful reliability, to establish the community aspect of the Métis on the land. [25] The geneologist’s comments are, according to the judge, too vague and fragmented. [26] His study does not address the distinctive characteristics of the group being studied, [27] and, in his view, does not enable a historic Métis community to be identified. [ 17 ] Nor was the judge persuaded by the research of historian Bouchard who relied on three [ translation ] “waves of miscegenation”, the first starting in Chicoutimi in 1675 when Nicolas Peltier married the daughter of a Montagnais chief. [28] [ 18 ] With respect to the descendants of Nicolas Peltier, the judge accepted that [ translation ] “there is no ... not even the start of a commencement of proof of the creation or, to use the scientific term accepted by the case law, the ethnogenesis of a distinct and recognizable historic Métis community within the meaning of the Powley test”. [29] In his view, based on one of the respondent’s experts (historian Nelson Martin Dawson), the case of Nicolas Peltier is typical of miscegenation at the time of the French regime, that is, the integration of mixed individuals into pre-existing Aboriginal or European communities. [30] [ 19 ] As for the census carried out by Abbot Isodore Doucet in 1839 concerning three trading posts – Chicoutimi, Métabetchouan, and Ashuapmushuan – spread throughout the Saguenay-Lac-St-Jean area, a census on which historian Bouchard relied, the judge did not agree with her that the individuals designated by Abbot Doucet as [ translation ] “free people” should be counted as Métis. [31] Moreover, the judge noted, [ translation ] “when we follow the lineage of the free people of Chicoutimi, it appears that most of their descendants joined the Montagnais of the Mashteuiatsh reserve, as it is called today”. [32] [ 20 ] With regard to the first wave of miscegenation that began in 1675, the judge therefore reached the following conclusion: [33] [ translation ] [151] Thus, contrary to the assertions of historian Bouchard, the Court finds that the evidence does not ground a conclusion that the wave of miscegenation, started by Nicolas Peltier in 1675, initiated the ethnogenesis of a historic Métis community on Saguenay land.

The available sources, for 1733 and 1839 in particular, concurrently reveal the low presence of Métis families, dispersed throughout the territory that did not display any identifiable and distinctive collective cultural traits of a Métis community within the meaning of the law.

[ 21 ] Nor was the judge persuaded by the demonstration of a second wave of miscegenation, traces of which were found in the diary of Chicoutimi postal clerk, Neil McLaren, between July 26, 1800, and October 12, 1804. [34] The historical facts reported in this diary reveal that two Métis families lived in the area at the time (the St-Onge and Verreaux families), 75 miles from each other, and the judge could not see therein the characteristics of density and proximity that mark a community. [35] [ 22 ] Nor did the judge accept the theory that a third wave of miscegenation started in 1842 with the arrival of Peter McLeod and his group forming the seven [ translation ] “Métis couples” dispersed at the mouth of seven tributary rivers of the Saguenay. [36] The judge reviewed the journey of each of these couples. [37] In his eyes, there was nothing conclusive, especially in light of their late arrival on the land in respect of the date of control [ translation ] “which leaves little time to establish interpersonal relationships, the transmission of ancestral traditions and the development of a distinct culture and practices”. [38] He reached the same conclusion about another community identified by historian Bouchard and made up of families on the Terres-Rompues land in the Saguenay. [39] [ 23 ] Finally, with respect to the appellants’ experts, the judge was of the view that [ translation ] “their contribution to the factual evidence supporting the historic community criterion has been marginal”. [40] [ 24 ] The report of geographer Etienne Rivard concluded that there was a historic Métis community in the Saguenay when the area was opened up to colonisation and the advancement of pioneer frontiers, but the judge preferred the report of historian Réal Brisson who testified for the respondent. [41] In the judge’s opinion, the expert Rivard is [ translation ] “mistaken”. [42] His expert report [ translation ] “is purely theoretical”. [43] [ 25 ] As for anthropologist Emmanuel Michaud, the judge characterized his [ translation ] “discourse” as theoretical, [44] considered him biased toward the appellants’ position [45] and his testimony to be deficient. [46] According to the judge, the Powley test does not allow for the concept of a [ translation ] “sparse and dispersed” community advanced by the expert Michaud. [47] [ 26 ] Finally, the judge felt that experts Serge Gauthier, ethno-historian, and Jacques Lacourcière, historian, did not bring any new factual elements likely to contribute to evidence of a historic Métis community.

Their contribution is mainly one of a methodological and conceptualized critique of some of the expert reports filed by the respondent. [48] Speaking of the expert Gauthier, the judge even noted that he contradicted what was revealed in an original historical source. [49] [ 27 ] In short, despite the imposing nature of the evidence adduced before him, [50] the judge concluded that the appellants had not discharged their burden of proving the existence of an identifiable historic Métis community [ translation ] “that would allow mixed individuals to be distinguished from their biological authors, either in their clothing, language, specific cultural, religious or folkloric practices, in short, by a way of acting, thinking, an interest that would be just that bit different and specific to a group that would be neither aboriginal nor white”. [51] [ 28 ] While this conclusion alone settled the dispute between the parties, the judge nonetheless continued his review of the evidence in regard to the other criteria set out in Powley . [52] [ 29 ] The appellants also had to show that the territory they claim is tied to that of the historic community.

This issue was not disputed in this case because the historic community on which the appellants base their arguments spanned the territory where their camps can be found. [53] [ 30 ] The same cannot be said of the identification of a modern community holding the right being claimed. [54] Even if the judge noted that each appellant had established a genealogical link with an Aboriginal or Métis ancestor and was a member of a Métis rights defence organization– the Domaine du Roy and Mingan Seignory Metis Community (“DRMSMC”) – he considered these two points of evidence insufficient. [55] [ 31 ] In his view, the genetic heritage of an individual, alone, is not determinative. [56] What counts is that individual’s cultural identity.

As for the appellants belonging to the DRMSMC, the judge considered that the creation of this organization, in 2005, was too recent.

Furthermore, it appears to have been created as a counterpoint to the agreement in principle entered into on March 31, 2004, by the impleaded First Nations and the various levels of government with a view to possibly concluding a treaty that would apply over the territories in which the appellants’ camps are located. [57] Finally, [ translation ] “membership is limited to filling out a form, presenting genealogical evidence of a link to a Métis ancestor and paying annual dues of $30”. [58] [ 32 ] The other evidence adduced in support of the existence of a modern community and set forth by the appellants’ experts also failed to move the judge, [59] who concluded as follows: [ translation ] [321] In the circumstances, even by accepting the hypothesis that a historical Métis community exists on the land, which has not been shown, the evidence in this case does not support the existence, on this same land, of a contemporary Métis community holding the rights claimed by the respondents. [ 33 ] Going on to analyse the evidence to determine the moment when colonial authorities effectively established their political and legal control over the land in question, the judge determined this period, referred to as control, to be between 1842 and 1850, [60] which corresponds to the [ translation ] “arrival of lumberjacks, the presence of surveyors who proceeded to divide the land into townships, the non-renewal of the Hudson’s Bay Company’s exclusive trading privileges, and the influx of settlers”. [61] In short, for the judge, the determinative criterion here was the opening of the area to colonization. [62] [ 34 ] Finally, the judge examined the personal situation of the appellant Ghislain Corneau [63] and his membership in the modern community in accordance with the criteria established in Powley : his self-identification, ancestral connection to the historic community, and acceptance by the modern community. [64] [ 35 ] With regard to self-identification, the judge considered that the appellant Ghislain Corneau self-identified as Métis later in life.

It was, according to the judge, a phenomenon driven by opportunism when his forestry activities were threatened or disrupted by the State. [65] [ 36 ] As for his ancestral connection, an Aboriginal ancestor in the paternal line, five generations back, [66] make it unlikely that this line belonged to a historic Métis community, the evidence revealing that the descendants of this line are farmers and that they married in Charlevoix and the Lower St.

Lawrence. [67] [ 37 ] Finally, because the appellant Ghislain Corneau claims that he is a member of only one Métis organization, the DRMSMC, and this organization has no cultural ties with any ancestral Métis community, the fact that the DRMSMC has welcomed him into its ranks carries little weight. [68] [ 38 ] For all these reasons, the judge concluded that the appellants failed to demonstrate, on a balance of probabilities, the existence of the aboriginal right claimed.

He therefore rejected the defence based on s. 35 of the Constitution Act, 1982 and granted the eviction order brought by the respondent, under ss. 54 , 60 , and 61 of the Act respecting the lands in the domain of the State : [69]

54. No person may erect or maintain a building, installations or works on any land except with authorization of the Minister having authority over that land. The authorization is not required for the exercise of a right, the performance of a duty under the law or so far as prescribed by regulation of the Government. … 60. The minister or public body having authority over any land may, by an application served on any person who unlawfully occupies the land, apply to a judge of the Superior Court for an order in the form of an eviction order. The application, accompanied with at least 6 clear days’ notice of the date of its presentation, shall be heard by

summary proceeding in the district in which the land is situated. 61. The judge, upon proof to his satisfaction that the person is unlawfully in possession of the land, may order him to abandon the land and to hand over possession of it to the minister or public body. He may also order the premises restored to their former condition and, if the person fails to do so, authorize the minister or public body having authority over the land to cause the required work to be carried out at the respondent’s expense.

The order has the same force as an eviction order and is executed in the same manner as an eviction order in a possessory action. On the tenth day after the date on which the judgment becomes executory, all property affected by the judgment shall devolve, without indemnity and in full ownership, to the domain of the State. The minister or public body may renounce the devolution on the conditions he or it determines. 54. Nul ne peut ériger ou maintenir un bâtiment, une installation ou un ouvrage sur une terre sans une autorisation du ministre ayant l’autorité sur cette terre.

Cette autorisation n’est pas requise dans l’exercice d’un droit, l’accomplissement d’un devoir imposé par une loi ou dans la mesure prévue par le gouvernement par voie réglementaire. … 60. Le ministre ou l’organisme public qui a l’autorité sur une terre peut, par demande signifiée à toute personne qui occupe sans droit une terre, demander à un juge de la Cour supérieure un ordre dans la forme d’une ordonnance d’expulsion. Cette demande, accompagnée d’un avis de présentation d’au moins 6 jours francs, doit être entendue

sommairement dans le district où la terre est située. 61. Sur preuve satisfaisante que telle personne est injustement en possession d’une terre, le juge peut ordonner à la personne de délaisser la terre et d’en livrer la possession au ministre ou à l’organisme public. De plus, le juge peut ordonner la remise en état des lieux et, à défaut, autoriser le ministre ou l’organisme public qui a l’autorité sur cette terre à faire effectuer les travaux requis aux frais de l’intimé.

Cette ordonnance a le même effet qu’une ordonnance d’expulsion et elle est exécutée de la même manière qu’une telle ordonnance à la suite d’une action possessoire. Le dixième jour suivant la date où le jugement devient exécutoire, tous les biens qui font l’objet du jugement sont dévolus, sans indemnité et en pleine propriété, au domaine de l’État. Ce ministre ou cet organisme public peut renoncer à cette dévolution aux conditions qu’il détermine.

THE ISSUES IN DISPUTE [ 39 ] This appeal calls into question the trial judge’s assessment of the evidence on the following issues: • the identification of the historic community that holds the rights being claimed; • the existence of a modern community characterized by some degree of continuity and stability with the historic community; • the appellants’ membership in the modern community in question; • the period of control.

[40] Since these are questions of fact and of mixed fact and law, it is important to first recall the standard of review by which anappellate court should be governed in such circumstances. STANDARD OF REVIEW [41] The standard is well established.

An appellate court must interfere to modify a finding of fact only if it is established that thetrial judge committed a palpable and overriding error.[70] The same degree of deference must be afforded inferences of fact.[71] [42] Questions of mixed fact and law supposing the application of a legal standard to a set of facts are also subject to the palpableand overriding error standard, unless a judge has clearly committed an error of principle in determining the applicable standard or in hisor her application of same, in which case the error may constitute an error of law subject to the standard of correctness.[72] [43] These standards of review apply when considering a judgment rendered on an application brought by an Aboriginal personseeking to establish, as in this case, that his traditional practices on the territory are protected under s. 35 of the Constitution Act,1982.[73] They must, however, be adapted due to the special nature of the evidence of facts giving rise to the right claimed which, moreoften than not, requires that courts go back in history to an earlier time when the aboriginal point of view was not recorded inwriting.[74] This point of view must be taken into consideration to achieve reconciliation between Aboriginal and non-Aboriginalpeoples, which is the foundation of s. 35 of the Constitution Act, 1982.[75] The courts have therefore come to accept that evidence of agiven ancestral custom, practice, or tradition may rely on oral histories despite it being hearsay evidence that is in principle inadmissible.Mtre Marie Houde addresses this singularity in the law of evidence in aboriginal matters as follows:[76] [translation] It is with the help of oral histories that judges have access to the aboriginal point of view about, among other things, the lifestyle,practices, customs, and traditions of their ancestors.

Because these accounts are often the only testimony aboriginal peoples have abouttheir past, judges must assess them with an appreciation of the evidentiary challenges facing the aboriginal party who does not havedocuments to demonstrate historical events and situations.

Assessing evidence in aboriginal disputes therefore requires a uniqueapproach in that it demands that the judge place “due weight” on the aboriginal perspective on their rights and their history so that therecognition of these rights under s. 35(1) of the Constitution Act, 1982 is not rendered illusory. … With respect to evidence, obviously, there are no longer any eye witnesses to events that took place at critical times and who might haveinformed the Court of the way of life of ancestral societies.

It is further admitted that written history is mostly an account of the non-Aboriginal perspective and that aboriginal societies have an oral culture and therefore do not benefit from the written word to establishtheir rights and history.

Due to this special nature of aboriginal disputes and the goal of conciliation pursued by s. 35(1) of theConstitution Act, 1982, the judge must take into consideration and be open to the aboriginal point of view, which is proved through oralhistories. [References omitted.] [44] It is with these considerations in mind that the following passage from the reasons of Lamer C.J. in Van der Peet[77] should beread: 68 In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of apractice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret theevidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a rightwhich originates in times where there were no written records of the practices, customs and traditions engaged in.

The courts must notundervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiarystandards that would be applied in, for example, a private law torts case. [45] In a later case, Mitchell v. M.R.N.,[78] the Supreme Court recalled that the merits of an aboriginal claim based on s. 35 still hadto be proved on the basis of persuasive evidence demonstrating its validity on the balance of probabilities:[79] 39 There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules ofevidence.

As Binnie J. observed in the context of treaty rights, “[g]enerous rules of

interpretation should not be confused with a vaguesense of after-the-fact largesse” (R. v. Marshall, (SCC), [1999] 3 S.C.R. 456, at para. 14). In particular, the Van derPeet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Evidence advanced insupport of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency from the highly compelling to thehighly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance ofprobabilities.

Placing “due weight” on the aboriginal perspective, or ensuring its supporting evidence an “equal footing” with morefamiliar forms of evidence, means precisely what these phrases suggest: equal and due treatment.

While the evidence presented byaboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standardsthat would be applied in, for example, a private law torts case” (Van der Peet, supra, at para. 68), neither should it be artificially strainedto carry more weight than it can reasonably support. … 51 As discussed in the previous section, claims must be proven on the basis of cogent evidence establishing their validity on thebalance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim.

The Van derPeet approach, while mandating the equal and due treatment of evidence supporting aboriginal claims, does not bolster or enhance thecogency of this evidence. …

[ 46 ] It appears from all this that the palpable and overriding error standard is the applicable standard here for most of the grounds raised by the appellants, which requires that the Court show deference to the judge’s findings of fact, [80] as it was he, it should be noted, who was entrusted with the particular management of these files starting in early 2008. [81] His judgment being dated February 10, 2015, we must therefore accept that over the seven years his case management lasted, the judge had ample time to immerse himself in the various aspects of these files. [82] There is no doubt that this merits deference.

INTERLOCUTORY JUDGMENT DATED MARCH 18, 2014 [ 47 ] Before delving into the heart of the matter, the appellants’ appeal from the interlocutory judgment rendered orally on March 18, 2014, by the trial judge should be summarily decided.

The context is as follows. [ 48 ] After the trial had been under way for two months, the appellants disclosed a supplementary expert report to the respondent on January 10, 2014, from ethno-historian Serge Gauthier, along with 13 historical documents to demonstrate that there were three groups, including the Métis, living in the Saguenay when control was entrenched. [ 49 ] On March 11, 2014, one week before the testimony of the expert Gauthier, the respondent informed the judge that the sources cited and commented in the supplementary expert report had not been sent to him, despite many requests to this end. [ 50 ] On March 18, 2014, when the respondent objected, the appellants had yet to provide the information required. [ 51 ] In support of its objection, the respondent first argued that there had been a breach of the legal contract between the parties, in that, twice, counsel for the appellants claimed that its case was complete. [ 52 ] The respondent then pointed out that the trial was under way, and, finally, that it had yet to obtain the documentary sources on which the supplementary expert report was based. [ 53 ] Counsel for the appellants, for his part, insists on the importance of filing the documents in question because documents concerning the Métis are rare.

In any event, he told the judge that he was unaware of their existence when he declared his case to be complete. [ 54 ] In the judge’s view, the absence of complete documents prevents the respondent from first verifying their content and then properly cross-examining the expert. He also held that the appellants’ request was late and that it affected the conduct of the trial.

Seven years had passed since he had been assigned the case and the appellants had ample time to complete their cases. [ 55 ] The following excerpt from the stenographer's notes on March 18, 2014, must be reproduced to properly understand the delicate dilemma the judge had to resolve once a trial of such magnitude had gotten under way: [ translation ] Mtre Daniel Côté [for the appellants]: Have you brought those documents with you, the excerpts I asked you for? Serge Gauthier: You mean, do I have all the books in question? Mtre Daniel Côté: Yes. Serge Gauthier: Well I don’t have all those books, that’s for sure.

But you can find them easily enough on the internet, for example. That’s for sure. We could get them quickly enough. That wouldn’t be an issue. Mtre Daniel Côté: I asked you for them, that’s why... The Court: But you can see the position in which that places us, Mtre Côté? First, we do not even have the complete documents to allow the opposing party to, first, cross-examine, and second, to first verify the content, to see whether there is indeed the need to bring supplementary evidence to contradict it. Listen, it completely changes the conduct of the trial.

It appears to me that, indeed, this approach is late in the circumstances. Listen, this case was assigned to me seven years ago. We have given you ample opportunity to prepare your case. We have given you not only time, but also the means to achieve this. Also, you have had every opportunity to complete your case. Now, you come with documents that could be of such a nature as to disrupt the conduct of the trial. In any event, it will certainly take the opposing party by surprise.

It is clear under the circumstances that it is not in the interest of the proper conduct of the judicial process to disrupt the conduct of the trial in this way.

So, I am going to uphold your colleague’s objection on this. Mtre Daniel Côté: Yes, Your Honour. [ 56 ] In the Court’s view, the judge judiciously exercised his discretion. There is no reviewable error here. [ 57 ] This supplementary expert report would have changed nothing in the outcome of the case since the credibility of the expert Gauthier was severely tried after the judge observed in his judgment that he had truncated the historical truth for purely partisan ends.

It is relevant to once again quote the trial judge since the manoeuvre is so unethical: [83] [ translation ] [245] To show the emergence of the Métis as a social group in the 18th century, Gauthier uses an excerpt from the introduction in “ Le Quatrième registre de Tadoussac, a book by L.P. Hébert. This is how the expert Gauthier introduced the relevant passage: [ translation ] Under the French regime, Louis Chatellereault, Joseph-André Collet, Louis Gariépy, Antoine Lavaltrie and Antoine Riverin are additional fur trade labourers who became free people.

It is therefore not surprising that we can refer to the [ translation ] “status” of the Métis who had become a significant social group during this period, which marked the moment of differentiation between Indians and Métis. Introducing the Quatrième registre de Tadoussac (1759-1784) , Léo-Paul Hébert said the following about the Métis and their status: [ translation ] The role of the Métis in Indian and Christian life in the trading posts is considerable ... . They enjoyed the respect of the Montagnais and the trust of the French. ...

Indifferent to French prejudice, they (the Montagnais) willingly chose their chiefs among the descendants of Nicolas Peltier and François Desroches. The Métis were the obvious choice to act as intermediaries between the French and the Montagnais ... . [246] L.P. Hébert’s book purports to be an analysis of the historical document Quatrième registre de Tadoussac , an important testimony from the 18th century, listing the marriages, baptisms, and deaths of the time, compiled by the Jesuit missionaries in the King’s trading posts.

We add that the text to which Gauthier refers is in a context where two realities are addressed, that is, miscegenation with Indian peoples and with the White people. [247] In addition, the term “Métis” appears nowhere in the Tadoussac record, it is the commentator who uses it. [248] Armed with this information, let us reproduce the relevant text, as drafted by Hébert: [ translation ] The status of the Métis. The role of the Métis in Indian and Christian life in the trading posts is considerable, as we have seen . They enjoyed the respect of the Montagnais and the trust of the French.

The adjectives with which they are designated in the register at the time of their baptism (illegitimate, natural, and so on, the usual terms at the time) do not appear to carry any weight in the eyes of the Montagnais, who took these partly foreign beings and integrated them. Indifferent to French prejudice, they willingly chose their chiefs among the descendants of Nicolas Peltier and François Desroches.

The Métis were the obvious choice to act as intermediaries between the French and the Montagnais, between the missionaries and the Christians . [ Emphasis added ] [249] In the context, it must be understood that author Hébert noted that at the time, the Métis were rather absorbed into an Indian people, the Montagnais.

Overall, the source, in its original version, expresses the opposite of what the expert Gauthier says it does. [ 58 ] Thus, while the historical source confirmed one aspect of the respondent’s theory, that is, that individuals of mixed descent were assimilated by the Montagnais at the relevant period, the expert suppressed the part that is unfavorable to him. [ 59 ] In short, the Court finds that the trial judge did not commit an error by maintaining the respondent’s objection to the filing of Gauthier’s supplementary expert report. [ 60 ] Let us now get to the heart of the matter.

ANALYSIS THE HISTORICAL MÉTIS COMMUNITY [ 61 ] The arguments raised by the appellants regarding the historical community lead the Court to answer three questions. This is the first: Did the trial judge err in his assessment of the evidence on the existence of the historical Métis community? [ 62 ] The appellants argue that the judge did not apply the relaxed, more generous rule on balance of probabilities, as taught by the

Supreme Court to take into account the aboriginal historical context. [ 63 ] As previously discussed in the

section of this judgment on the standard of review that should guide an appellate court hearing an appeal of a judgment rendered on an aboriginal claim based on s. 35 of the Constitution Act, 1982 , [84] the “unique approach” put forth by the Supreme Court does not confer any particular weight to the evidence adduced in support of such a claim. [85] As with any litigation, the merits of any claim must still be established “on the basis of persuasive evidence demonstrating their validity on the balance of probabilities”. [86] Faced with contradictory expert reports and testimony, the judge found that the appellants had failed to meet their burden of proving the existence of a historical Métis community. [87] [ 64 ] Without wanting to repeat in detail each of the elements accepted by the judge to determine that the appellants had failed to demonstrate the right they are claiming, let us first recall that the judge had valid reasons for being critical of the appellants’ experts: [88] [ translation ] [95] We note that, in accordance with their respective mandates, each of the experts retained by the respondents [the appellants before this Court] critically analysed, both methodologically and conceptually, the work of the adverse experts with the same speciality.

This approach raises a debate on the scientific value of the expert reports, in which the Court has no intention of becoming involved. [96] Indeed, this portion of the respondents’ expert evidence appears of relative usefulness insofar as it offers little or no facts likely to support the respondents’ claims on various aspects of the Powley test and, in addition, none of these experts formally correct the relevant findings of fact based on the reports filed on behalf of the Attorney General of Quebec, namely concerning the determinative elements such as the genealogical lines of the respondents, the descendants of Nicolas Peltier, Jérôme St-Onge, François Verreaux, the free people in Abbott Doucet’s census (1839), the seven [ translation ] “Métis couples” from the 1842 pioneer front and ancestors Kechera, Karaote, and Lejeune. [ 65 ] The judge could also be dubious of the fact that none of the appellants’ experts questioned the scientific value of the work of historian Bouchard, work on which they relied, or her sources, [89] including the study by genealogist Alemann who merely listed the descendants of 16 Métis bloodlines, taking for granted, it might be said, that the notion of Métis community boils down solely to kinship. [90] [ 66 ] In this respect, the following was written by anthropologists Claude Gélinas, Stéphanie Eveno and Francis Lévesque, in their report prepared for the respondent: [91] [ translation ] Nevertheless, while the existence of individuals resulting from mixed marriages between Euro-Canadians and Indians in the Saguenay- Lac-Saint-Jean region since the 17th century cannot be denied, it is much less certain that these individuals of mixed heritage not only defended their diversity as a cultural and identity marker, but that they formed, throughout history, Métis “communities” within the anthropological meaning of that term.

It should, in fact, be understood that a comparison cannot be automatically made between a real biological miscegenation and the existence of a “Métis” social entity, with a distinct culture and identity. In other words, there is a very clear distinction between biological miscegenation and the existence of Métis communities. [ 67 ] The Powley judgment was clear on this question. Certainly, the mixed Aboriginal and European ancestry should be taken into account, but this is not the most important factor.

As authors Brown and Schenck write: [92] … In the Americas, as elsewhere, persons of mixed European and indigenous ancestry are not necessarily destined to form a distinct people; biology predetermines only the possibility that they might, never the certainty that they will. … [ 68 ] To establish the existence of a historical community, it is necessary to prove that the intended group, in addition to biological miscegenation, shares customs, traditions, and a collective identity. [93] In the judge’s opinion, this was not demonstrated, the evidence on a balance of probabilities showing instead that individuals of mixed descent did not evolve as a distinct group, but were initially absorbed into the Montagnais, and later into the Euro-Canadians.

That is the opinion of historians Nelson Martin Dawson [94] and Réal Brisson, [95] who each filed a report on behalf of the respondent, and the opinion of anthropologist Paul Charest, [96] who also filed a report on behalf of the impleaded First Nations. [ translation ] Nelson Martin Dawson Multiplying examples would add very little to the debate and would basically confirm the two main scenarios that emerge from the Peltier family: mixed-race children absorbed into colonial life by drawing closer to settlements, and mixed-race children absorbed into the nomadic way of life of Indians who gravitated around trading posts.

In the last case, mixed-race children brought only a new shade to the aboriginal variegation already at play, which was slowly erasing the particularities of the various groups that had been present on the territory at the time of first contact, as shown in the first part of this study. [ translation ] Réal Brisson Although it renders an account of a certain number of [ translation ] “ mixed unions ”, the ecclesiastical documentation during the British regime reduces the identity of groups present in the Saguenay/Lac Saint-Jean area to that of [ translation ] “ Savages ” and [ translation ] “ Canadians ”.

No information about the emergence of any hybrid community has been found, even in the case of the notable passage during the 1840s

of the [ translation ] “ Métis Scot ” Peter McLeod whose conflictual conduct, Protestant allegiance and professional situation focused on a single economic interest – mainly his own and that of his employer – isolated the forestry foreman and appears to have little promoted the growth of a parallel society, one that was recognizable or distinct from the two referred to above.

To all appearances, the recorded paths taken by Métis for the period in question are based instead in the aboriginal society through the process of assimilation (adoption, integration) specific to the historical and cultural context of the time, so successful that the feeling of membership in a Métis community ( coming out ) is the result of a modern awareness and affirmation of identity. [ translation ] Paul Charest There was therefore no intra-Aboriginal ethnogenesis but adoption and integration by the Montagnais/Innu society of migrants whose culture and language were closely related.

The same is true with respect to the descendants of interethnic unions between Euro-Canadians and Montagnais/Innu women. They were even absorbed, for the most part, into Montagnais society, and even if they carried the names of their non-native ancestors, were an integral part of the Montagnais/Innu culture. [ 69 ] The answer to the first question is essentially based on the assessment of the credibility and probative force of the historical and anthropological evidence adduced at trial.

The judge recognized biological miscegenation as an indisputable fact. [97] That being said, in his opinion, the evidence did not establish on a balance of probabilities the existence of a historic community on the disputed land. [98] At this stage of the analysis, the Court is unable to see that the judge’s finding constitutes a palpable and overriding error. [ 70 ] The second question the Court must answer regarding the historic community is the following: Did the trial judge err by applying the Powley test more strictly? [ 71 ] The appellants contend that the judge made the test set out by the Supreme Court in Powley for the purpose of identifying a historic community harder or stricter.

According to this country’s highest court: [99] ... A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. … [Emphasis added] [ 72 ] Here is what the trial judge took away from Powley in paragraph 55 of his judgment: [ translation ] [55] Overall, according to the teachings of Powley , which is still followed today, several elements are likely to allow a court to identify, from a legal standpoint, a historic Métis community, in particular : (

a) a group of individuals of mixed ancestry, Indian and non-Indian ; (

b) living together , as a society, on a single territory; (

c) having developed a culture, customs, and traditions that are distinct from those of their Indian and non-Indian ancestors and recognized by other ethnicities; (

d) having an awareness of its collective identity and capable of expressing it on occasion. [Emphasis added.] [ 73 ] The judge took for granted that to be recognized as an aboriginal right, the culture, practices, and traditions must be distinct , whereas the Supreme Court required only that their distinctive nature be sought out.

They are not one and the same, as Lamer C.J. explained in Van der Peet : [100] [71] The standard which a practice, custom or tradition must meet in order to be recognized as an aboriginal right is not that it be distinct to the aboriginal culture in question; the aboriginal claimants must simply demonstrate that the practice, custom or tradition is distinctive . A tradition or custom that is distinct is one that is unique -- "different in kind or quality; unlike" ( Concise Oxford Dictionary, supra ).

A culture with a distinct tradition must claim that in having such a tradition it is different from other cultures; a claim of distinctness is, by its very nature, a claim relative to other cultures or traditions. By contrast, a culture that claims that a practice, custom or tradition is distinctive -- "distinguishing, characteristic" -- makes a claim that is not relative; the claim is rather one about the culture's own practices, customs or traditions considered apart from the practices, customs or traditions of any other culture.

It is a claim that this tradition or custom makes the culture what it is , not that the practice, custom or tradition is different from the practices, customs or traditions of another culture.

The person or community claiming the existence of an aboriginal right protected by s. 35(1) need only show that the particular practice, custom or tradition which it is claiming to be an aboriginal right is distinctive, not that it is distinct. [72] That the standard an aboriginal community must meet is distinctiveness, not distinctness, arises from the recognition in Sparrow , supra , of an aboriginal right to fish for food.

Certainly no aboriginal group in Canada could claim that its culture is "distinct" or unique in fishing for food; fishing for food is something done by many different cultures and societies around the world. What the Musqueam claimed in Sparrow , supra , was rather that it was fishing for food which, in part, made Musqueam culture what it is; fishing for food was characteristic of Musqueam culture and, therefore, a distinctive part of that culture. Since it was so it constituted an aboriginal right under s. 35(1) .

[Emphasis in original] [ 74 ] The judge, here, therefore committed an error. Is it, for all that, determinative in that, had it not been committed, would he have concluded otherwise?

The Court does not believe so. [ 75 ] Obviously, the customs, practices, or traditions must be distinctive rather than distinct, but they must also be proved. [ 76 ] A review of Canadian case law reveals that the courts, when searching for a given historical Métis community, take into account distinctive traits such as the creation of institutions, lifestyle, economy, music, language, clothing, and so on. [101] [ 77 ] It is worthwhile in this respect to quote an excerpt from the brief of the Métis National Council, authorized by this Court to make representations, specifically on this very issue: 22.

It is also important to note that the court should seek a distinctive group. Some courts, like the trial judge in Vautour , have found that, while cultural exchange occurred between the Indigenous group in a given area and European settlers from the time of contact to the establishment of effective Crown control, this cultural exchange did not lead to the emergence of a third cultural group, with its own separate identity and culture. In those cases, the descendants of inter-marriages between Europeans and Indigenous groups were absorbed into one or the other cultural group.

Other courts, such as the courts in R v Laviolette , 2005 SKPC 70 , R v Belhumeur , 2007 SKPC 114 , and R v Goodon , 2008 MBPC 59 , have identified the emergence of distinctive groups between the time of contact and the time of effective Crown control, looking to factors such as a distinctive language, distinctive songs, distinctive storytelling, distinctive dance, distinctive foods, distinctive dress, distinctive beadwork, and distinctive governance structures. [References omitted.] [ 78 ] The trial judge deemed that, [ translation ] “other than the fur trade”, there had been no proof of sufficiently defined practices or traditions that would allow him to identify a historical Métis community whose rights could be protected under s. 35 of the Constitution Act, 1982 . [102] In the Court’s opinion, that is a conclusion that could reasonably be drawn from the evidence and cannot be characterized as a palpable and overriding error. [ 79 ] Before this Court, and when questioned throughout the hearing, counsel for the appellants stated in his reply that the method of making maple syrup in a shack was a tradition of the historic Métis community.

Counsel then invited the Court to refer to Neil McLaren’s journal, published by historian Bouchard in 2000, which reads [103] : [ translation ] Every year, when winter and spring meet, the inhabitants of Chicoutimi could buy a little bit of taffy and maple sugar produced and sold by the Indians in the area.

This was referred to by McLaren on at least three occasions in his journal: first on the morning of March 29, 1801, where [ translation ] “ the old squaw Ignace arrived at the house with about seven pounds of maple sugar ”; then on April 4, 1803, when François Verreault’s wife, the Indian Marie Petsiamiskueu and several of her children, left in the early morning [ translation ] “ for the Old Village with the intention of making maple sugar there ”; and finally, three weeks later, on April 27, when the Verreaux family shut down its sugar shack. [ 80 ] Quite honestly, the Court cannot see in this excerpt from Neil McLaren’s journal proof of a distinctive tradition or custom characterizing the historic community that would pre-date control, as argued by the appellants.

It is not because the Verreaux family had a sugar shack on April 27, 1803, that we can conclude on a balance of probabilities that this was a characteristic of the Métis culture and consequently one of its distinctive elements. [ 81 ] The appellants also criticise the judge, in paragraph 55 of his judgment, for imposing on them the burden of proving that their historic community had been recognized by other ethnic groups and that there was an awareness of their collective distinctiveness, two elements that are not part of the Powley test. [ 82 ] This argument is without merit.

The judge did not have to establish absolute criteria. He merely had to refer to tools or elements [ translation ] “likely to allow a court of justice to identify, from a legal standpoint, a historic Métis community”, [104] elements, it must be said, that the trial judge in Powley also used and about which the Supreme Court had nothing to add, except to confirm the judge’s conclusion on the existence of a historic Métis community in Sault Ste. Marie: [105] 22 Dr.

Ray’s report indicates that the individuals named in the post journals “were overwhelmingly Métis”, and that Vidal’s report “provide[s] a crude indication of the rate of growth of the community and highlights the continuing dominance of Métis in it” (Ray Report, at p. 53). Dr. Victor P. Lytwyn characterized the Vidal report and accompanying map as “clear evidence of a distinct and cohesive Métis community at Sault Ste. Marie” (V. P. Lytwyn, “Historical Report on the Métis Community at Sault Ste. Marie” (1998) (“Lytwyn Report”), at p. 2) while Dr. Ray elaborated: “ By the time of Vidal’s visit to the Sault Ste.

Marie area, the people of mixed ancestry living there had developed a distinctive sense of identity and Indians and Whites recognized them as being a separate people” (Ray Report, at p. 56). 23 In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Métis community that can support a claim to site-specific aboriginal rights. We recognize that different groups of Métis have often lacked political structures and have experienced shifts in their members’ self-identification.

However, the existence of an identifiable Métis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. Here, we find no basis for overturning the trial judge’s finding of a historic Métis community at Sault Ste. Marie. This finding is supported by the record and must be upheld. [Emphasis added.] [ 83 ] This brings us to the third question asked by the appellants respecting the historic community:

Did the trial judge err by comparing the historic Métis community of Sault Ste. Marie to the alleged historic Métis community of the Domaine du Roy and the Mingan Seignory? [ 84 ] The evidence in Powley clearly established the existence of a historic community located in Sault Ste. Marie and its surrounding area whose members had developed a distinctive sense of identity. [106] A reading of the trial judgment gives the impression that the judge was looking for a comparable situation, failing which there would be no historic community.

For example, in paragraphs 158 and 161 of his judgment, he asserts that density and proximity are characteristics specific to a community: [107] [ translation ] [158] Stripped of all rhetoric, the historical facts reported in the journal reveal that, at the time, two mixed families lived in the area. Seventy-five miles separated their respective homes.

We are far removed here from the characteristics specific to a community, that is, density and proximity. … [161] The criteria of proximity, demographic density, cultural detachment, and the awareness of a collective identity cannot arise from such a rudimentary situation. [ 85 ] In the Court’s view, the judge erred here. It is indeed possible to imagine that the members of a historic community could settle in several separate locations while forming a single regional unit.

Therefore, it should not be necessary to prove that the members of a community lived near each other and formed a group of a certain density to meet the Powley test. [ 86 ] Case law from the western provinces supports the submission that a historic community may be regional and nomadic on a more or less vast territory. [108] That being so, that case law has a factual backdrop that is entirely different from ours and involves recognized historic communities where the debate concerned the territorial expansion of the aboriginal rights of these communities whose lifestyle was nomadic. [ 87 ] And therein lies the rub.

The appellants failed to persuade the trial judge that there is an existing historic community that developed a distinctive collective identity on the claimed land. Thus, although a historic community may be regional and nomadic, this does not mean that the appellants were exempt from having to establish the existence of a community having its own customs, traditions, and way of life. So, even if the trial judge erred by comparing the historical situation of the appellants to that of the Sault St.

Marie Métis, this error is not determinative. *** [ 88 ] Considering the Court’s conclusion on the identification of a historic community, it is not necessary to continue the analysis of the test elaborated by the Supreme Court in Powley ; at least as far as it pertains to the existence of an ancestrally-based contemporary rights-bearing community. [109] It goes without saying that “[i]f there is no historic rights-bearing community, there can be no contemporary rights-bearing community”. [110] [ 89 ] Along the same lines, there is no reason to consider the appellants’ membership in the modern community in question. [ 90 ] Even though the Court’s conclusion on the identification of a historic community settles the appeals, control is a separate issue.

Both the appellants and the respondent contest the judge’s conclusion placing the period of control between 1842 and 1850. A closer look is required. CONTROL [ 91 ] As indicated above, [111] control refers to the time period before which the existence of a Métis community grouping Métis people with a distinctive collective identity, living together in the same geographical area and sharing a common way of life, must be established.

In this context, the appellants’ interest is to show that control took place as recently as possible, while the respondent attempts to persuade the Court that control occurred much earlier. [ 92 ] In this case the trial judge found abundant evidence adduced to prove that the period of effective control over the territory known as the “Traite de Tadoussac” or the “Domaine du Roi” fell within the period between 1842 and late 1850. [112] *** [ 93 ] The appellants do not call into question the concept of effective control accepted by the trial judge.

They only argue that he erred when determining that it took place between 1842 and late 1850.

They submit in both their brief and at the hearing that it was subsequent to 1850, when the Aboriginal people were displaced following the creation of the reserves in 1856. [ 94 ] They also point to the primitive land surveys of the townships between 1843 and 1860, the installation of the municipal regime and that of the administration of justice in 1849 as determinative. [ 95 ] This is a question of fact for which the standard of review is that of the palpable and overriding error. [113] Neither in their brief, nor at the hearing did the appellants illustrate where this error could be found in the trial judgment before submitting their own understanding of the evidence.

Accordingly, this ground of appeal must fail. *** [ 96 ] The respondent, for its part, argues that the judge analyzed the evidence based on the legal criterion of control, which is wrong. Instead of asking when the Europeans effectively gained control of the region, the judge should have instead sought facts revealing at what point the customs, practices, and traditions of the Aboriginal peoples were deeply disturbed by European laws and customs.

[ 97 ] This criticism is without merit. Vaillancourt J. of the Ontario Provincial Court, who presided the Powley trial applied this same criterion [114] and his determination as to the period of control in the region of Sault Ste.

Marie was upheld by the Supreme Court. [115] [ 98 ] Case law following Powley has frequently used this test [116] and scholarly commentary has also acknowledged it. [117] The test is particularly relevant where, on land occupied by Aboriginal or Métis communities, the public authority installed a regime of land grants, or when that land was subject to an influx of settlers, as was the case in Powley . [ 99 ] In its brief, the respondent states that control was not exercised in the same manner throughout Canada and that it must be assessed differently, depending on the periods.

It feels that it is paradoxical that in the Saguenay-Lac-Saint-Jean area, the trial judge decided that control occurred in the 19th century, that is, at the same time as in the Upper Great Lakes area, 1,500 kilometres west, toward the continental interior.

According to the respondent, [ translation ] “... the dates accepted by the judge ... clash with the Canada- wide depiction of control in Canadian case law ... ”. [118] [ 100 ] The respondent states that in the eastern part of the country, particularly in Quebec and the Maritimes, the seat of European colonial power and the hub of settlements were established much earlier.

It argues that on the territory of Domaine du Roi, the balance of power definitively passed from the Aboriginal or Métis peoples to Euro-Canadians in the 18th century. [ 101 ] According to the respondent, between the 1733 Hocquart order and the 1767 Privy Council judgment in Allsopp , several expressions of effective control over colonial activities in the territory showed that control had been established between those dates. [ 102 ] The respondent’s argument is based mainly on the expert reports and testimony of historian Michel Lavoie. [119] Historian Lavoie’s theory on control, expressed in his report PC-18 from June 2009, relies on the premise that the Domaine du Roi is part of the seigneurial system. [120] It is for that reason, in fact, that he uses the name “ Domaine seigneurial du Roi ”. [ 103 ] That premise is wrong.

When cross-examined, the expert Lavoie recognized that there is no primary or secondary source referring to the Domaine du Roi as a seigneurial estate. He alone uses this term. [121] In truth, this designation is unwarranted. [ 104 ] The seigneurial system is a land grant system. The seigneurial court ruled that, starting in 1711 when the Marly judgments were rendered, lords had a duty to grant lands to their tenants. [122] This was not the case in the territory known as Traite de Tadoussac or Domaine du Roi .

That territory was never granted as a seignory and was exempt from any colonization, under the French and English regimes, until the mid-19th century.

In truth, the public authority never granted land rights over this territory but reserved it for the fur trade to be run by the steward to whom it had been entrusted or the individual to whom it had been leased. [ 105 ] On this territory, exclusive trading rights were granted to the tenant or the relevant administrator. [123] These rights were the subject of several orders, often repeated, to protect their holder from the attempts of other merchants to trade on this estate, in spite of the monopoly. [124] [ 106 ] Consistently, every settlement and land grants for that purpose were prohibited on the territory of the Domaine du Roi .

Under the French regime, historian Lavoie pointed out that at various times, even after the fur trade had become less profitable, the authorities refused to abolish exclusive trading rights over this territory, to open it up to farming and grant lands. [125] In 1719, in an agreement signed between the Jesuits and the intendant of the Domaine du Roi , missionaries were expressly prohibited from encouraging Aboriginal peoples from becoming sedentary [ translation ] “... or to assemble the savages in settled villages to stay there and cultivate any land with corn or other grains, these types of establishments having grave consequences for trade ...”. [126] [ 107 ] This policy of refusing to open up the Domaine du Roi to colonization continued under the English regime. [127] It only ended in the mid-19th century, more specifically as of 1842 when the renewed lease of the Hudson’s Bay Company included a condition that the government could at any time have the land surveyed and settle colonists in any part of the Domaine suitable for agricultural colonization. [128] [ 108 ] Furthermore, to protect the trading monopoly in the Domaine du Roi , several ordinances and policy regulations were decreed by the governors and intendants from the time of its creation in 1652.

These edicts were, among other things, intended to prevent outside Aboriginal hunters from hunting and trading within the limits of the leased territory and to prohibit those who had settled there from trading with the English in Hudson’s Bay or the French in Trois-Rivières. [129] [ 109 ] These interdictions were generally revealed to be ineffective and did not prevent the movement and activities of Aboriginal people inside or outside the Domaine du Roi .

Thus, despite these orders, particularly the one by Intendant Hocquart in 1733, the widow Fornel, who held exclusive rights over the Domaine du Roi between 1749 and 1755, complained to the intendant in 1750, that the strategy to keep the Aboriginal hunters on the territory was ineffective. [130] [ 110 ] This ineffectiveness was confirmed by the expert Lavoie during his cross-examination [131] and he had to acknowledge that at the time, it was just about impossible for French colonizers to exercise control over the aboriginal groups. [132] [ 111 ] Ineffective attempts to control movement, customs, and the practices of aboriginal groups cannot constitute the imposition of “effective” control since they do not demonstrate the European powers’ ability to control the territory. [133] [ 112 ] Lastly, the evidence does not show a “political and legal control in a particular area” according to the Supreme Court’s test in Powley . [134] [ 113 ] Thus, several disputes referred to by the expert Lavoie and taken up by the respondent in its brief are commercial disputes generally between the holder of exclusive trading rights in the Domaine du Roi and a competitor.

The most obvious case is Allsopp that gave rise to a judgment by the Privy Council in London on June 26, 1767. [135] In that judgment, the Privy Council confirmed the monopoly of the holder of trading rights in the Domaine du Roi , which was contested by Allsopp and two other merchants who argued freedom to trade enshrined in the Royal Proclamation of 1763. They had already received a refusal from the Quebec Legislative Council in June 1766. [136]

[ 114 ] Under both the French and the English regimes, these disputes fail to demonstrate the political and legal control of Europeans over the lands of the Domaine du Roi . They concern only the protection of the trade monopoly conferred upon the rights-holder over the whole territory and do not show the existence of a legal regime of control applicable to those who live there.

These disputes were also not heard within the limits of the Domaine du Roi , since the expert Lavoie recognized that there was no [ translation ] “judicial institution” in place. [137] Finally, they most often dealt with merchants who did not live on the estate. [ 115 ] The absence of an effective legal order inside the vast territory of the Domaine du Roi is also shown by the existence of [ translation ] “squatting” and that [ translation ] “strong arm men”. [ 116 ] Starting in 1826, logging began on a small scale in the Domaine du Roi . [138] The development of this activity brought “squatters” with it who settled on the land.

Squatting is first and foremost a question of fact: the occupation of public land without title.

Expert Lavoie identified the ineffectiveness of the Crown land distribution system as one of the reasons for the presence of squatters. [139] Remember that in the Domaine du Roi , any settlement or agricultural survey was prohibited. [ 117 ] The other occurrence is that of [ translation ] “strong arm men”, an expression that attests to the prevalence of [ translation ] “might is right” in the Domaine du Roi and the use of bullying, violence, and fraud before the effective judicial administration requested by inhabitants was finally established. [140] It is significant that the first case to be heard in 1850, by the Saguenay Circuit Court created the year before, was an action in damages brought against Peter McLeod, one of these [ translation ] “strong-arm men”, for [ translation ] “assault and battery”.

The action was granted and the defendant condemned for [ translation ] “carrying out vigilante justice”. [141] [ 118 ] The above analysis shows that, contrary to what the respondent argues, the dates accepted by the trial judge to determine the period of “effective control” over the Domaine du Roi does not clash with the Canada-wide depiction in Canadian case law. [142] [ 119 ] As was the case for the area of Sault Ste.

Marie in Powley , the judge was well-founded in finding that, although Europeans were present much earlier through the trading posts and missionary work in the Saguenay-Lac-Saint-Jean, any colonization was prevented until the mid-19th century. [ 120 ] It was only during this last period that the land was opened up to settlement, after being surveyed and divided into townships. The trial judge described the demographic consequences of opening up the Domaine du Roi to settlement: [ translation ] [344] The change in the type of land use was accompanied by a demographic explosion.

The data is incomplete in this respect. Yet, some known examples allow a glimpse into the upheaval that ensued. [345] In 1839, Abbott Doucet counted 68 inhabitants at the Chicoutimi post, including 46 Indians. The cleric in La Malbaie, Abbott Decoigne, reported 51 inhabitants in l’Anse-à-Peltier, on the north shore of the Saguenay and 110 more

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