New Brunswick

Métis, non-status Indians decision could affect N.B. court cases

The outcome of a number of pending court cases in New Brunswick could be affected by Thursday's Supreme Court decision that Métis and non-status Indians are now the responsibility of the federal government.

Supreme Court ruled thousands of Métis and non-status Indians are now the responsibility of Ottawa

Lawyer Rebecca Butler says the Supreme court ruling on Métis and non-status Indians may change the outcome of two cases she is handling. (CBC)

The outcome of a number of pending court cases in New Brunswick could be affected by Thursday's Supreme Court decision that Métis and non-status Indians are now the responsibility of the federal government.

Rebecca Butler, a Fredericton lawyer, said she believes the decision may change the outcome of two cases she is handling, one for possession of a moose carcass and another for hunting moose out of season.  

All three men charged in these cases claim aboriginal exemptions.  

Keith Boucher, of Bathurstis claiming he is not guilty of illegally possessing a moose carcass because of his aboriginal heritage. 

The case of brothers Yvon and Michel Vienneau, who were caught hunting out of season, is on hold in the Court of Appeal.

"We were just waiting for the release of the [Supreme Court] case to go back and complete argument," said Butler.

In the unanimous Supreme Court ruling, the court held that non-status Indians and Métis are considered "Indians" under Section 91(24) of the 1867 Constitutional Act. Harry Daniels, the late Métis leader, launched the landmark case that bears his name in 1999.

Proving aboriginal status

On May 24, 2013, the Vienneaus were convicted of unlawfully hunting moose on the Heath Steel spur line in northern New Brunswick. The men were sentenced to seven days in jail and given fines of $2,000 each.

It's going to be played out on a case–by–case basis.- Ron Gaffney , co-author of the book,  Broken Promises: The Aboriginal Constitutional Conferences

According to court records, both men proved their aboriginal ancestry goes back five generations, but what they didn't prove, according to the trial judge, was that they are "accepted by the aboriginal community as aboriginal." 

That requirement is one often used in judges' decisions on Métis and non-status aboriginal hunting rights, and acceptance is often the sticking point, according to Butler, as many non–status Indians live off–reserve.

Ron Gaffney, a retired Fredericton lawyer, is considered an expert on aboriginal affairs. (CBC)

"How I interpret the Daniels decision is that that piece is now wiped out. We don't need to put that forward anymore. And we can just rely on the aboriginal genealogical line," said Butler. 

Ron Gaffney, a retired lawyer, who is co-author of the book, Broken Promises: The Aboriginal Constitutional Conferences, which argues all Métis are aboriginal people and is quoted in the recent Supreme Court decision.

"The federal jurisdiction over aboriginal people may assist, in terms of non-application of provincial laws, like provincial fish and game wildlife laws in relation to Indian people, non-status or Métis," said Gaffney.

"I think it will give them more weight at the negotiating table. I think it will give them more weight in terms of pressing for socio–economic benefits. But the 'rights' table is a little more difficult," cautions Gaffney.  

"And as the court mentioned, it's going to be played out on a case–by–case basis."

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