Supreme Court refuses to hear Métis harvesting rights case, sets in motion more expansive claim

Canada’s highest court will not hear a case of two Red River Métis men in Saskatchewan who were charged and convicted for unlawfully harvesting, one of the cases from more than a decade ago.

On Thursday, the Supreme Court of Canada dismissed an application from the Saskatchewan government for leave to appeal in the joined Boyer and Poitras case.

Oliver Poitras, from Meadow Lake, was charged in 2012 for unlawfully hunting under The Wildlife Act. Warren Boyer, from Chitek Lake, was charged in 2014 with unlawfully fishing under The Fisheries Act.

Both men argued they had Sect. 35 rights to harvest without licences in what they considered was traditional Métis territory.

However, Saskatchewan argued that where Poitras was hunting, 37 km south of Meadow Lake, and where Boyer was fishing, 60 km southeast of Meadow Lake, fell outside the provincially recognized Historic Métis Community of North West Saskatchewan and required licenses to harvest.

The Provincial Court of Saskatchewan sided with the province and convicted Poitras and Boyer in 2018.

The Court of Queen’s Bench in Saskatchewan dismissed an appeal from the convictions in 2020.

In 2022, the Saskatchewan Court of Appeal ordered a new trial.

Instead, Saskatchewan asked the Supreme Court to hear an appeal.

Kathy Hodgson-Smith, co-counsel for Boyer and Poitras, is pleased with both the Supreme Court’s decision to dismiss the appeal and the ruling of the Saskatchewan Court of Appeal last year.

“I felt that the Court of Appeal, for the first time in this province, turned its mind to the legal framework that applies when a Métis person makes an application for relief from a provincial law when they're hunting or fishing or trapping for food as an Indigenous person,” said Hodgson-Smith.

The appeal court has established a framework which calls for a broad approach to what is considered a Métis harvester’s traditional territory, which adds “clarity” for both Métis and the province, Hodgson-Smith says, when Métis claim the right to fish or hunt under Sect. 35 of the Constitution Act 1982.

Through the Powley decision (2003), says Hodgson-Smith, the Supreme Court said an Aboriginal right for harvesting is site-specific and connected to the harvester’s traditional territory. The Supreme Court did not look further than Powley’s specific historic community because they were not asked to, she said, and because of that “they left open a way for a bigger claim.”

“As an overarching consideration, the claim (from Boyer and Poitras) before the Court is for a broad territorial right based on the nomadic nature of the Métis peoples. The claim before the court is not resolvable by narrowing it to the actual sites where harvesting had occurred,” wrote Justice Georgina R. Jackson of the Court of Appeal.

Jackson’s decision was supported by the other two justices on the appeal court panel.

The lower court did not allow Boyer or Poitras to present evidence that showed the migratory nature of the Métis people through a larger traditional territory.

The appeal court could not render a decision on the convictions because it did not have the historic evidence that was required to make that ruling. Because of that, the appeal court ordered a new trial.

The lower court will now have to fully consider the evidence that Métis are migratory and, as such, are a community of interconnected settlements spread across a large land mass, says Hodgson-Smith.

The Court of Appeal’s framework binds all the lower courts, she adds, and that framework will guide all future cases.

“I'm very grateful that the Court of Appeal created a framework that I think is more reasonable for the Métis to talk about who they are as an Indigenous people in this country and for us to deal with Métis claims on a bigger scale so that we're not doing this one person at a time and one kilometre at a time,” she said.

She also points out that the narrow approach that the Provincial Court was using presented a hardship for any Métis harvester contesting an unlawful hunting or fishing charge.

“Every single person that faces these charges has to bring this massive constitutional defence and so it's really an access-to-justice issue,” said Hodgson-Smith.

Justice Jackson also wrote in her judgment that “seeking to resolve complex constitutional claims through a criminal trial” presented challenges.

The appeal court acknowledged that an application to the Court of King's Bench for a Declaration of rights based on Métis traditional territory may be the more effective approach to these cases, says Hodgson-Smith.

“But that is also a very big undertaking. I don't know whether or not larger organizations, such as the Red River Métis government, whether they're going to take this on,” she said. “I just represent my clients.”

The Métis National Council and the Manitoba Métis Federation were intervenors when the Boyer and Poitras cases were heard in the Court of Appeal.

Hodgson-Smith has multiple clients with similar cases who were waiting for the Supreme Court to deliver its decision. Boyer has also been charged a second time.

As her claimants are all Red River Métis, she intends to apply to join the claimants into one trial. She expects to make that joinder application on July 26 when her first on-hold case is scheduled to be heard.

"It is our intention to bring evidence to demonstrate that they are all members of the same historic and same contemporary Métis community and that all the places they were hunting and fishing is within the traditional territory of this community," she said.

The Red River Métis are the origin of the Métis Nation, which claims a historic Métis homeland that encompasses the prairie provinces of Alberta, Saskatchewan, and Manitoba in their entirety, and contiguous areas in British Columbia, Ontario and the Northwest Territories.

With the exception of one of the claimants, whose legal fees are being covered by the Manitoba Métis Federation, Hodgson-Smith is providing her legal services free of charge.

She is joined by Clement Chartier (former president of the Métis National Council), also working pro bono, as legal counsel for Boyer and Poitras.

If they are successful in their legal battle, a favourable ruling could see the entire province of Saskatchewan, or large parts of it, recognized as the traditional Métis homeland for the Red River Métis. It could also provide support for cases in other provinces.

“Such a ruling would minimize confusion and promote reasonable dialogue
between the Métis and the province of Saskatchewan,” said Hodgson-Smith. “With the ultimate goal of reconciliation, addressing Métis Aboriginal rights within Saskatchewan more broadly would go a long way in that direction.”

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