Cranbrook Registry
No. 19504

CANADA

PROVINCE OF BRITISH COLUMBIA

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

BETWEEN:
HER MAJESTY THE QUEEN

AND:
JOHN GRANT HOWSE, DAN LAFRANCE, RONALD MONSEN, LEONEL COURCHAINE, FREDERICK LABOUCANE, JOHN PRATT

S. BLECHINGBERG, Counsel for the Crown

J. GERELUK, Counsel for the Defense

Place and Dates of Hearing Cranbrook, British Columbia 27-29 September, 1999 8 February, 2000 Place and Date of Judgment Cranbrook, British Columbia 28 April, 2000

Written Reasons by:
The Honourable Judge D.M. Waurynchuk

REASONS FOR JUDGMENT

[1] Section 35 of the Constitution Act, 1982 reads as follows:

(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 m4tis peoples of Canada.

[2] Section 52(i) of the Constitution Act, 1982 reads as follows:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.
(3] In R. v. Powley [2000] 0.3. No. 99 (Ont.S.C.) O'Neill, 3. defined the identity of a Métis person as follows:
A Métis is a person who,
(a) has some ancestral family connection (not necessarily genetic),
(b) identifies himself or herself as Métis and
(c) is accepted by the Métis community or a locally-organized community branch, chapter or council of a Métis association or organization with which that person wishes to be associated.

[4] Count 1 charges that John Grant Howse and Dan LaFrance, as a party to offence, on October 25, 1997, near the Haller Creek Main Forest Service Road, near Cherry Lake, near Cranbrook, Province of British Columbia, did hunt wildlife when he did not hold a hunting license issued to him under the Wildlife Act. (Section 11(l)(a)(I) Wildlife Act RSBC Chapter 488). Count 2 alleges that Howse and LaFrance, on the same date, place, did unlawfully use a motor vehicle for the purpose of hunting or to transport a hunter to or from the location of wildlife in that portion of M.U. 4-3, being the watershed of Haller Creek and Cherry Lake. (Sec. 13(2)(t), Part 2, Schedule 4, of British Columbia Regulation 190/84 enacted pursuant to the Wildlife Act RSBC Chapter 488).

[5] In Count 3, Ronald Monsen is jointly charged with Dan LAFRANCE, as a party to the offence. It alleges that Monsen, on October 26, 1997, at approximately the 17.5 kilometre point on the Gold Creek Logging Road, near Cranbrook, British Columbia, did unlawfully carry a firearm when he did not hold a firearm licence issued to him under the Wildlife Act. (Section 11(l)(a)(iii).

[6] In Count 4 Courchaine is charged, with Dan LaFrance as a party to the offence, that between October 10,1997 and October 18, 1997, near Sanca Creek, near Cranbrook, British Columbia, he did hunt wildlife without a hunting licence issued to him under the Wildlife Act. (Section 11(l)(a)(I). In Count 5 Courchaine is charged, with Dan LaFrance as a party to the offence, that on or about October 10, 1997, near Sanca Creek, near Cranbrook, British Columbia, did kill a bull moose at a time not within the open season contrary to Section 26(l)(c) of the Wildlife Act. In Count 6 Courchaine is charged, with Dan LaFrance as a party to the offence, with having dead wildlife, a bull moose carcass, in his possession, other than as authorized under a licence or permit, or as provided by regulation, contrary to Section 33(2) of the Wildlife Act.

[7] In Counts 7 to 11 inclusive, Dan LaFrance is jointly charged as a party to the offence with Frederick Laboucane. In Count 7 Frederick Laboucane is charged on or about October 25,1997, near Caven Creek, near Cherry Lake, near Cranbrook, British Columbia, he did hunt an antlerless whitetail deer, when he did not hold a limited entry hunting authorization required by regulation, contrary to Section 11(l)(a)(ii) of the Wildlife Act. Count 8 charges Frederick Laboucane with shooting a whitetail deer in an area designated as a limited entry hunting area for that species when he was not in possession of a valid limited entry hunting authorization, valid resident hunting licence and valid B.C. resident species licence for that species hunted, contrary to Section 9(i)(b) of B.C. Regulation No. 134/93, enacted pursuant to the Wildlife Act. Count 9 alleges that Frederick Laboucane was in possession of dead wildlife other than as authorized under a licence or permit or as provided by regulation, contrary to Section 33(2) of the Wildlife Act. Count 10 alleges that Frederick Laboucane shot the antlerless whitetail deer at a time not within the open season, contrary to Section 26(l)(c) of the Wildlife Act. Count 11 alleges that Frederick Laboucane was a person who was required to hold a licence, permit or limited entry hunting authorization issued under the Wildlife Act or the regulations, and he failed to produce one for inspection to an officer on request, contrary to Section 97(a) of the Wildlife Act.
[6] In Counts 12,13 and 14, John Pratt is charged with Dan LaFrance charged as a party to the offence. In Count 12 John Pratt is charged on or about October 26, 1997, near the Gold Creek Forest Road, near Cranbrook, British Columbia, did unlawfully hunt antlerless whitetail deer when he did not hold a limited entry hunting authorization required by regulation contrary to Section 11(l)(a)(ii) of the Wildlife Act. In Count 13, it is alleged that John Pratt had in his possession the dead antlerless whitetail deer other than as authorized under a licence or permit or as provided by regulation contrary to Section 33(2) of the Wildlife Act. In Count 14 alleges that John Pratt, failed to comply with a condition of or an instruction in a species licence by failing to cancel the species licence in accordance with the instructions on it contrary to Section 16.01(b) of B C Regulation 340/82 which was enacted pursuant to the Wildlife Act.
[6] On September 27,1999, the defendants effectively admitted the Crown's case by consenting with the Crown to the filing of an Admission of facts as Exhibit 1. It reads as follows:
1. In late October, 1,997 near Cranbrook, British Columbia, John Grant House, Ronald Monsen, Leonel Courchaine, Frederick Laboucane, John Pratt and Dan LAFRANCE participated in a protest hunt for the purposes of gathering food and during those times the following incidents occurred, that;
a) John Grant House hunted wildlife near Cherry Lake, near Cranbrook, British Columbia on October 25, 1997, when he did not hold a hunting licence issued to him under the Wildlife Act;
b) Ronald Monsen hunted wildlife on October 26, 1997, near Cherry Lake, near Cranbrook, British Columbia and for that purpose carried a firearm when he did not have a firearm licence issued to him under the Wildlife Act;
C) Leonel Courchaine hunted and killed a moose between October 10, 1997 and October 18, 1997 near Sancha Creek, near Cranbrook, British Columbia when he did not hold a hunting License issued to him under the Wildlife Act;
d) Frederick Laboucane hunted and killed a Whitetail Deer on October 25, 1997, near Cherry Lake, near Cranbrook, British Columbia when he did not hold a hunting license, Limited Entry hunting Authorization or species license issued to him under the Wildlife Act in his possession and being required to hold a licence, permit or limited entry hunting authorization issued to him under the Wildlife Act or Regulations, failed to produce it for inspection to an officer on request it not being a time within the open season;
e) John Pratt, on October 26, 1997, near the Gold Creek Forest Road, near Cranbrook, British Columbia, did hunt and have possession of an antlerless Whitetail deer when he did not hold a limited entry hunting authorization required by regulation and also failed to comply with a condition or instruction in a species license by failing to cancel the species license in accordance with the instructions on it;
f) Dan LaFrance was a party with John Grant House, Ronald Monsen, Leonel Courchaine, Frederick Laboucane and John Pratt in a hunt for wildlife and in the possession of wildlife with Leonel Courchaine, Frederick Laboucane and John Pratt on October 25, 1997 and October 26, 1998 when they did not hold a hunting license or authorizations as set out above issued to them under the Wildlife Act. (It is noted that John Grant Howse is spelled incorrectly. Further, in paragraph (f) the year 1998 should be 1997.)

[7] The defendants pleaded not guilty to all of the charges. The Crown entered a stay of proceedings on Count 3, which charged Ron Monsen and Dan LaFrance as a party to the offence, primarily because of Monsen's incapacity to attend the trial.

[8] Each of the defendants claim that they are Métis people, who were taking part in an organized Métis hunt for moose and deer to provide winter food for their families. They say that this right is as basic as an aboriginal right can be. They say that their aboriginal right to hunt for food has traditionally been exercised by them or their families. They say that their aboriginal right to hunt has not been extinguished, nor limited by the Crown. The defendants ask that the aforementioned regulations and sections of the Wildlife Act, R.S.B.C. 1996, c. 488 be declared unconstitutional, both generally and in their application to the defendants. They have filed a Constitutional Question Notice, which provides particulars of the questions asked: namely:
a) that the accused are Métis and claim an aboriginal inherent, constitutional or treaty right to pursue their historical, economic and cultural traditions in Canada and in British Columbia; and
b) those historic, economic and cultural traditions include the right to hunt for food in a traditional communal Métis manner; and
C) Sections 11(l)(a)(1), 11(l)(a)(ii), 11(l)(a)(iii), 26(l)(c), 33(2), and 97(a) of the Wildlife Act, R.S.B.C. 1996, c. 488 do not recognize the inherent, aboriginal, or treaty rights to hunt and gather food and are therefore of no force and effect with respect to the accused as interfering with the aboriginal rights of the accused; and
d) Section 13(2)(t), Part 2, Schedule 4 of British Columbia Regulation 190/84 enacted pursuant to the Wildlife Act, R.S.B.C. 1996, c. 488, and, Section 16.01(b) British Columbia Regulation 340/82, enacted pursuant to the Wildlife Act, R.S.B.C. 1996, c. 488, Section 9(l)(b) of British Columbia Regulation 134/93, enacted pursuant to Wildlife Act, R.S.B.C. 1996, c. 488, do not recognize the inherent, aboriginal or treaty rights to hunt and gather food and are therefore of no force and effect with respect to the accused as interfering with the aboriginal rights of the accused.

[9] In R. v. Powley (1998] 0.3. No. 5310 (Ont. Prov. Ct.) the Honourable Judge Valliancourt reviewed the interpretative' principles to be applied when dealing with s.35 of the Constitution Act, 1982, in these words:
Courts have applied a purposive analysis in combination with several general principles when dealing with the legal relationship between the Crown and Aboriginal peoples. These principles include: (a) a court must give a generous and liberal interpretation when analyzing the purposes underlying s. 35(l); all treaties; s. 35 itself, and other statutory and constitutional provisions protecting the interests of aboriginal peoples; (b) the nature of the relationship between the Crown and Aboriginal peoples is fiduciary thereby placing the honour of the Crown at stake; (c) any doubt or ambiguity must be resolved in favour of the Aboriginal peoples; (d) courts must be sensitive to the Aboriginal perspective with respect to the rights at stake, and; (e) since 1982, rights cannot be extinguished but can only be regulated or infringed with the justificatory test as laid out by the Supreme Court in R.v. Sparrow [1990] 1 S.C.R. 1075 (S.C.C.).

[10] The Supreme Court of Canada has set out four steps which all courts must consider in assessing a claim under s.35 of the Constitution Act, 1982, namely:
1). The court must determine whether the claimant has demonstrated that he or she was acting pursuant to an aboriginal right. 2). The court must determine whether that right was extinguished prior to the enactment of s. 35(l) of the Constitution Act, 1982.
3). The court must determine whether that right has been infringed.
4). The court must determine whether the infringement was justified.
(See: R. v. Sparrow, (supra).

[11] After considering all the evidence presented by each of the defendants regarding his own history and genealogy and applying the definition of Métis fixed by Justice O'Neill in R. v. Powley, (supra), I find that John Grant Howse, Dan LaFrance, Leonel Courchaine, Frederick Laboucane, and John Pratt are Métis people.

[12] In R. v. Powley, (supra), O'Neill J made a number of very significant decisions in coming to the determination of who qualifies as a 'Métis" in circumstances where the Métis right asserted is site-specific. I agree with him on the following:
1) He rejected a requirement of a genealogical tie by blood to the original Métis inhabitants of the community.
2) He found that ancestral links may be non-genetic, and as deeply cherished as blood connections.
3) He found that a blood quantum requirement reveals little about how a person defines his or her own identity in relation to the Métis community.
4) He found that an onus on the claimant for proof of a genealogical tie would place too great a burden on the Métis claimant and that would too easily lead to the extinguishment of Métis rights through attenuated blood lines.
5) He held that objectively determinable ties of a claimant to a local Métis community were unacceptable and not required.
6) He held that aboriginal rights are collective rights with each member of the collectivity with a personal right to exercise, or not, the aboriginal right. Further, each of the claimants asserting the aboriginal right must be a member of that aboriginal community, but each individual in the community does not have to meet an individual cultural means test. He found that such a requirement would be arbitrary and inconsistent with a purposive analysis of the aboriginal rights protected by s. 35 of the Constitution Act, 1982.
7) He rejected the argument that the requirement of acceptance "by the Métis" could be satisfied only if given by a local Métis community in continuity with an historic Métis community, and not by voluntary service and political organizations like the Ontario Métis Aboriginal Association and the Métis Nation of Ontario. He held that to insist that Métis identity be tied to an existing and flourishing community, but without regard to recognized Métis associations, ignored the historic reality that the Métis people and culture had suffered from prejudice as a result of discriminatory governmental policies. He held that an aboriginal people who resided in a community or locality in more or less proximity to one another, who shared the same culture or interests, but who were not in any way formally recognized by government, could collectively organize and form a local association, branch or chapter for the purposes of crystallizing and shaping their community.
8) He approved of the aboriginal rights analysis conducted by Vaillancourt, Prov. 3. where he adapted the aboriginal rights analysis applicable to non Métis aboriginal people to Métis people by assessing whether hunting for food was a practice integral to Métis society at the time when "effective control" of the area was taken over by European based culture. He stated that the Métis have aboriginal rights, as people, based on their prior use of the land and its occupation as a people. He stated that it is a matter of fairness and fundamental justice that the aboriginal rights of the Métis which flowed from this prior use and occupation, be recognized and affirmed by s. 35(l) of the Constitution Act, 1982.
9) O'Neill J. approved the trial judge's findings that the contemporary Métis Community in Sault Ste. Marie had always existed, except that it was, until the early 1970's an invisible entity caused by shame, ostracization, and prejudice. He found that Métis communities could not be packaged up and described in the same fashion as a recognized indian reserve. He stated that to deny people access to their constitutional rights because a community may now only be beginning to put together aspects of its identiy and culture is to reward the very wrongful practices that the federal government admitted in its Statement of Reconciliation in 1998.

[13] In R. v. Powley, (supra), O'Neill states: In assessing a claim to an aboriginal right a court must engage in a two stage process. It must first identify the nature of the right claimed. This stage requires that the court consider the nature of the action claimed to have been done pursuant to an aboriginal right; the nature of the governmental regulation, statute or action being impugned; and the practice, custom or tradition relied on to establish the right. At the second stage the court must determine whether the practice, custom or tradition claimed to be an aboriginal right was, prior to a specific point in the past, an integral part of the distinctive culture of the local aboriginal community in question, in the sense of being one of the community's defining features, and has remained an integral part of the culture of the community in that sense.
I shall return to the process of assessing the aboriginal right to hunt for food which the defendants claim after considering the testimony of the defence witnesses.

[14] Dan LaFrance spoke on his own behalf and on behalf of all the defendants during the introduction of the defence evidence. He and the other defendants and a gallery full of their supporters appeared during the trial wearing their Métis sashes.
He explained that the sash is a powerful symbol to Métis people. They take pride in wearing it. They can hold up their pants with it. It has limitless uses to them. It is colourful. He said the green threads represent mother Earth. The blue threads reflect their connection to the Great Spirit. The yellow threads remind them of the rising sun in the east where good things come from. The red threads sadly remind them of all the shedding of Métis blood during the history of the Métis people. I noted that the sashes are predominately red in colour. The white threads represent the clear vision the Métis have of the future. Dan LaFrance stated that the sash used to have black thread woven into it, but that it is no longer used. Black represented the dark years the Métis endured. Dan LaFrance explained that during his adult life he has carried a medicine pouch containing items sacred to him.

[15] Dan LaFrance had this to say of his history: I would like to share with you a brief account of my history of hunting, fishing, trapping, and guiding. This brief explanation will demonstrate beyond a doubt that I have lived the 'Indian mode' way of life as a Métis person all my life and continue to live that way to this day. This account is not meant to be detailed nor exhaustive, rather it will give you the sense and feeling that the LaFrance family continues to live our culture and traditions.

Starting at the very early age of five I was not only taken out to fish by my Dad, but I am told that my Mum used to @end me out at the back of our house, where there was a creek, to fish on my own. I guess you can say that from that time I was to build a relationship and respect with the land, that continues to be a driving force within me now. I remember my Dad taking me down to the Fraser River numerous times to fish, and bringing home supper, as we were very poor. He explained to me that we might not have much money, but there is always fish to catch. The LaFrance's were one of the Métis families that were brought out from Manitoba to work at the West Fraser Mills in Port Moody.

We moved to Manitoba not long after that and this when I started to hunt. I used to go out with my step Dad and hunt for white tail deer and game birds. If it were not for our sustenance hunting, we would not have had much meat on the table. In the summer months we would put in a big garden, and catch and can quite a lot of fish. I remember at the age of nine, going down to the Assinaboin River when the fish were running and in a weeks time catching enough fish for the winter months when everything was froze up and we could not get fish. As a family we spent many a day in the Clearwater Lake area hunting and fishing. I have fond memories of those days and I learned a lot from my Mum and Dad about our culture and traditions while out on the land.

By the age of twelve we had moved back to BC. The hunting and fishing continued to supply our family with sustenance on a year round basis. At the age of twelve I was competent enough to be able to hunt for grouse on my own, and did so often. As a matter of fact we ate more grouse than chicken in our household. By the age of seventeen, we were taking trips up into the interior of the province to hunt for moose and the creator has given me a moose to feed my family every year since.

At the age of twenty, I married a Métis gal named Cathie, she was seventeen. We have been married for twenty-six years this year, and to this very day we continue to not just practice our culture, but rather, we live it every single day. In doing so we have brought up our two boys in a Métis household, teaching them the ways of our ancestors.

By the time our first child Josh was two we had move up north to our trapline. This trapline is in a very remote part of BC. You had to fly from Smithers 180 air miles north to the headwaters of the Skeena River, were we had built our cabin with our own hands and material from the woods.
This began our life as trappers, living a very traditional lifestyle. I guess I don't have to explain to you that there are no supermarkets up there to go to and shop for food. If we had been lazy and did not go and get our meat, fish and berries from the woods, we would have starved. That year we had spent ten months in the bush trapping and guiding.

By the time our next child Cody was born, we have moved to a different trapline and were living there all year round. This trapline was south of Vanderhoof about an hour and a half drive. Again, we built everything ourselves with materials coming from the bush. On a trappers income, a big garden, moose, deer, and fish was the only way we could feed our family. It was at this time that we managed to purchase a guiding territory, and built a small business guiding non-resident hunters and fishermen. In this respect I am continuing on with a traditional lifestyle for my ancestors were trappers, guides and middlemen for the Hudson Bay Company.

The only reason we decided to move off the trapline was so that our boys could receive a proper education in school for up until now my wife had been teaching them home school.
What brought us to the Cranbrook area was work. I was hired to manage a guiding territory for Three Bars Ranch and did so until that fall when the guiding was over and I was laid off.

This year I was asked to work as a guide for an outfitter up in the Hudson Hope area, by the name of Ray Jackson. Respectfully, I turned the job down as I was running my own business on Vancouver Island and could not take the time to leave and spend some time in the mountains.
This brings up another point. I have a full time farrier business on southern Vancouver Island. My oldest son works in the business with me as we both are certified journeyman farriers. The Métis people are known for their ability and expertise in working with horses. In a lot of cases in the old days a families wealth was marked by how many horses they had and having horses, working with horses, or being involved with horses in some way is a part of Métis culture, past and present. I have been around horses all my life, and have been a professional farrier and trainer for twenty-six years and have handed this skill down to both my boys. So I not only feed my family in a traditional manner, but we make our living in one of the most traditional ways a Métis person can, with horses.

There will not be a year ever that goes by that I will not obtain some of my sustenance in a traditional manner from our homelands, honoring the land, animals and fish that our creator the Keeche Manito (Great Spirit) has provided for us Métis people.

Lastly, I leave you with this analogy. The Métis people are like the grass that grows throughout our homelands. People have plowed it under, they have put chemicals on it, and they burn it on a regular basis, they even build cities on it - why - to try and get rid of it. But every spring there is new growth and the grass continues to grow strong as it has done since the dawn of time. This is because the grasses of our homelands have deep roots. The Métis people are like the grasses of our home lands, with roots that are every bit as deep and secure. We survive because we have a strong culture and traditions, that has been handed down from generation to generation and will continue so for time immemorial.

A very big part of my culture and traditions is hunting, fishing, trapping and gathering that I inherited from my ancestors.

[16] Dan LaFrance told the court about his ancestry. Gail Morin of the St. Boniface Historical Society has traced him back the year 1580. He is related to Louis Riel and Gabriel Dumont. He is connected through the Sansregret Métis family of the Red River Settlement. He produced a map showing that only a short distance, as the crow flies, from where the Kootenay Hunt took place a creek named LaFrance Creek runs into Kootenay Lake. The documentary evidence and testimony of Dan LaFrance is evidence of his ancestral links to the Métis nation. He told of his position as Captain of the Hunt.

[17] Dan LaFrance said of the captain of the hunt: I was mandated on November 11th and 12th 1996, in Kelowna at an AGM of the Métis people of the province. Prior to that, I was mandated in 1994 of the Métis Nation in B.C., which was the governing body at that time. Prior to that, I held it in a more traditional manner, that I was appointed by Gerald Morin, who was the president of the Métis Nation Council, at a meeting in Kelowna. They asked me if I was interested in the position because of my lifelong way of living, and that I guess they felt I could help the Métis people in that respect in the hunting and fishing area." Earlier he had testified that the most famous captain of the hunt was Gabriel Dumont. He said that the captain of the hunt is a traditionally held position within the Métis Nation mandated by the people to represent their interest in matters concerning their inherent right to hunt, fish, trap and gather.

[18] Dan LaFrance is registered as a member of the Vancouver Island Métis Nation. Prior to that he belonged to the Pacific Métis Federation. Throughout all this time he has carried on as a hunter, trapper and guide. During the time of these offences in late October, 1997, Dan LaFrance was living near Cranbrook British Columbia for the Three Bars Ranch. He was managing their guiding territory for a salary of one thousand dollars per month. He said he had to supplement his salary in the Métis traditional way of hunting, fishing and food gathering to feed his family.

[19] Dan LaFrance explained to the court that two kinds of trapline licences are issued in British Columbia. One is issued without fee to aboriginal trappers. The other is issued with fee to non-aboriginal trappers. His trapline was registered to him on November 2nd, 1995. The trapline licence exempts him from having to obtain hunting and fishing licences pursuant to s. 11(9) of the Wildlife Act, R.S.B.C. 1996,c.488.

[20] Dan LaFrance described to the court his knowledge of aboriginal rights and his interest and connection with those rights. He pointed to government documents that have been issued respecting the rights of Métis people, but he says, the BC Government never consulted with the Métis Nation before printing and circulating the pamphlets. For example, one of his pamphlets is entitled 'Fishing Aboriginal Rights.' In it there is this statement: "...If you are a Métis you must exercise your Aboriginal fishing right to fish for food, Ceremonial or social needs in Métis traditional territories. For more information, contact the Métis National Council.' He had this to say about the pamphlet: '...You know, they say we can fish in our traditional territories and that's great....and they publish a booklet like this and distribute it all over British Columbia and then when we go to practice our culture and carry on our traditions, we are either put under investigation and/or charged.' [21] Dan LaFrance spoke of his role as the Provincial Captain of the Hunt on December 9, 1995 when the Métis people of British Columbia held a traditional hunt at Toquart Bay on Vancouver Island. The hunt was collective with 45 hunters participating. He told of Métis hunters coming from the Kootenay Métis people to take part in the Vancouver Island hunt. The Kootenay Métis Nation then asked him to call a hunt in the Kootenays. The October 25thh Kootenay Métis hunt was organized during the Annual General Meeting of the Kootenay Métis. Dan LaFrance drew up plans for the hunt and took those plans to the local Métis Elders for their impute and approval. Everyone was satisfied that those who were going to participate in the hunt needed winter meat to feed their families.

[21] During and after the hunt local conservation officers patrolled the hunt area. When one of the Métis hunters produced his Métis membership card to a conservation officer, the officer was heard to say that the card meant nothing to him. When one of the Métis hunters was stopped, for inspection, by a CO, the officer expressed his opinion that there would probably be lots of drinking going on that night because the Métis were hunting there. However, this discrimination was to be out done by another group according to Dan LaFrance. After the plans for the hunt were drawn, Dan LaFrance, along with Elder Bassett, went to meet with the Ktunaxa people, at the St. Mary's Indian Band Office, to advise them of the hunt and to obtain their blessing to the hunt. The hunt area was within traditional Ktunaxa territories, but the hunt area is also claimed as traditional Métis homelands. The Ktunaxa people refused to give the hunt their blessing. Dan LaFrance said, 'It is probably one of the first times I felt very, very discriminated against as a Métis person by another aboriginal person ... I invited them to come on the hunt."

[22] John Grant Howse testified about his history and his genealogy. He is a descendant of Joseph Howse, who was born in 1743, in Cirencester England. Joseph Howse came to what is now Canada. He was with the Hudson's Bay Company as a cartographer. Howse Pass is named after him. He used the Pass in 1809 to gain access to the Columbia River system west of the Rocky Mountains. Later he left the Hudson's Bay Company and became an ambitious fur-trader. He returned to England. There he wrote a book called 'A Grammar of the Cree Language'. The Columbia River system starts at Canal Flats just a forty minute drive north of Cranbrook, B.C. In addition to Howse Pass, there is Howse River and Howse Peak. John Grant Howse is the son of Joseph Harold Howse who died the year that John Grant Howse was born. He had this to say of his upbringing at TaTa Creek, which is 30 minutes north of Cranbrook, B.C. "...I have always known that I was a little bit differently raised, although parts of my family did not admit it. My mother did not like the word Indian mentioned in our house. Some of my brothers and sisters don't like that word either. I cannot change who I am. And I've stated in my statement to the CO's on the weekend of our gathering out near Cherry Lake that I had not purchased a hunting licence since around 1985. But I was not welcome to be with my white friends when we hunted because I wouldn't buy a licence. I was asked by a cousin of mine who lives in the Invermere area also, as I do reside today, if I would attend a Métis gathering and I agreed. It was the first meeting or gathering was held at the Columbia Lake Indian Band hall in the spring of ninety-'94. It was a good gathering and we got to write our family on a large piece of paper in the hall and this is where - excuse me- this is where I found that I felt comfortable. I felt comfortable because I was with people that believe in our culture ... And I was asked to -if I would like to join the Kootenay Region Métis Association and I did. I paid my dues. I submitted my name, my families names as stated on my application form and I was given a card of recognition ... There were lots of people that liked to talk about going hunting and fishing and it was nice to be with them. You had the same values. Nobody judged you differently. No one stated to you that you couldn't hunt or you couldn't fish because you didn't have a licence. So I preferred to hunt with them. When they talked about a hunt at Cherry Lake, Kerry Boyer was to organize it for a certain weekend. I understood that Kerry Boyer and Elder Boyer worked on the location and it was pretty well arranged that we would meet somewhere in the vicinity of Cherry Lake where we would camp and get together. So I took my family and we went there to see if we could find our harvest for the fall.'

[23] Latrica Nicholas testified that she has been a sitting director since September 23, 1995 on the Métis Nation of British Columbia, which is affiliated with the Métis National Council. She described the difficulties being experienced by people trying to organize Métis people, but she identified the Vancouver Island and Kootenay Region Métis Associations as the best organized Métis groups in British Columbia.

[24] Doreen Yvonne McGee is a Métis Elder in the Kootenay Region. She had this to say: myself, was not really aware of my Métis heritage until about seven years ago. I knew there was always something at home when I was young but actually, in our family, we were more ashamed of it because of the sad things, and I say this with absolutely no prejudice intended in any way, but we were never accepted by Indian people or by normal society. We weren't. My mother and her sisters and brothers were often said that they were ridiculed in school and called Nitchy which meant half-breed and so on. And I think this problem exists today, still today, that this is a sad and sore point. That we actually are a nation from Canada. We should be accepted as such. A Métis could come from nowhere else in the world, only from Canada. I'm proud of that. I'm very proud of that. I wish the Canadian government was as proud of that as we are. But anyway, to get back to this, my mother's family, it's through my mother's lineage that I am Métis. We could trace our line back to the paper what my great-grandfather signed for land in Manitoba....l have never cured a hide or anything, I would like to know how but I never - after I grew a little older, that part of our life was kind of hid until 1995 when we became aware that there was a Métis organization in B.C. We joined it, became a part of it and worked hard to be part of it....I felt the singing, the dancing, the music playing. My people did it when they were young. It's always been a part of our life to this very day. We do it with our own family and that was something I felt an instant rapport with when we joined with other Métis people somewhere that - that the feeling was just there. It was almost like a homesickness in me when it started, when at the first A.G.M I went to and they had the gathering and it started. It was just like I had been there before .... I don't know for sure how to - how to end this except to say, I don't believe Métis people are asking for anything that shouldn't be theirs....I am very proud to be a Métis. And I'm always sorry, it's a sad fact that my mother and her people, especially in that particular generation, couldn't feel the pride of being a Métis.

[25] Leonel Courchaine told of his early life in Manitoba in the following terms: "...As we were growing up, we hunted and fished with my dad and uncles in groups for our meat for the winters. We took part in the Métis Days. There was a Métis community just north of Winnipeg where my grandparents lived that we were there just about every weekend and we took part in their snowshoe races and wood sawing competitions that they had every winter....I trapped rabbits and shot rabbits and we ate everything that we shot and we.. we had to, we weren't that wealthy. As I was growing up, I got a Manitoba guide licence so I took people out for bear hunting and we would eat the bears that we shot....The year that I got my moose....I had only worked twelve weeks that year.... We hunted the Friday, Saturday, Sunday with nothing and Monday I ran across a bull moose which I shot and he was halfway up the mountain. I cleaned him all out and cut him up and it took us each two trips to walk him down off the mountain to the vehicle. I brought him home, hung him for ten days, took the meat to the butchers to get some sausage and pepperoni and jerky made up." Leonel Courchaine was asked to report to the conservation officers in Creston. He was told by them that Métis people don't have no rights. He was threatened with obstruction charges if he did not turn over the meat he had at his residence. The Cos told him they would be giving the meat to a needy family. He paid one hundred twenty dollars to the butcher for his services, but he never did get his moose meat.

[26] Leonel Courchaine produced documents showing that his grandmother's Godfather was Louis Riel. He moved to the Creston, B.C. area (the Kootenays) in 1983. He has hunted for winter meat every year of his adulthood. He joined the Kootenay Regional Métis Association in 1996.

[27] Frederick Laboucane said that he was born a Métis. He said, " My family dates back to - - past the Louis Riel days. The name has been changed over the years. I don't know why but it did. I only joined the Métis Kootenay Region Métis Association in 1997. I moved to the Kootenays twenty-three years ago....so I've been in B.C. now for almost sixty-one years. I've never lived in any other province....My hunting history started when I was about four years old or five, and fishing with a family of fifteen that I come from. We needed moose meat and deer meat and fish and berries. But like the elder said today, during grade school years, the Métis were frowned upon, both by the Indians that were actually living separate from everybody else and the whites who we went to for education. You had to learn to protect yourself pretty well and we did learn that....Now, hunting and fishing was always a part of my family. I have not missed one year of hunting and fishing until last year after my rifle was taken away. I didn't get it back, by the way.

[28] Frederick Laboucane told the court about shooting the white tail deer. As he was transporting the deer he was stopped by the COs. He produced his Métis card. They told him that didn't give him any rights. They seized the deer and his rifle.

[29] Frederick Laboucane told the Court that his Métis homeland is all of British Columbia because of the records he has of his ancestors who were voyageurs with both the Hudson's Bay Company and the Northwest Company.

[30] John Pratt filed as an exhibit his genealogy. He was born in Pre-St. Marie, Saskatchewan. He said that by the time he was twelve he was hunting, shooting partridge, prairie chickens, white-tail deer. He trapped muskrats and weasels in the winter time and sold the hides. Of his early life he recalls advice from his father: "...When I was growing up, my dad told us that we were part Indian but he said, "Don't talk about it because they will call you half-breed. So it was a in our house, it wasn't talked about that much." John Pratt shot a white tail deer. He met the COs at a game check station. It was there that he showed them his Métis card. He recalls the conservation officer looking at the card and saying, "Well, that don't mean nothing, a Métis card.' The conservation officer took the deer and John Pratt's rifle. At the time of trial John Pratt had resided in Castlegar, B.C. for the past seven years. Mr. Pratt finished off his testimony by saying, "I''ve hunted from all four provinces. I've been in all four provinces. I'm a typical Métis. That's about all."

[31] The right claimed by ail of the defendants is the right to hunt for food. When you think of it, it really is as basic as rights go. All of the defendants share a common ancestry, common family upbring, common association with shame, ostracization, and discrimination, common hunting, fishing and food gathering experiences. Unfortunately they all experienced the unnecessary inappropriate comments of the conservation officers. I find that from the earliest of times when the fur trade penetrated west of the Rocky Mountains people of Métis origin lived off the land by hunting wildlife, fishing and food gathering in the Rocky Mountain Trench where the organized October 1997 Métis hunt took place. The evidence establishes that Métis people have suffered discrimination and prejudice from all sides including the inequality of treatment by provincial governments across Canada. Specifically, the inequality of treatment by the Wildlife Conservation officers and their political masters. It would be difficult if not impossible for the British Columbia Provincial Government and the Wildlife Branch to argue that they have not had enough time since the coming into force of the Constitution Act, 1982 to set up a process to determine the practice, customs or traditions of aboriginal Métis claims that would most definitely arise. Hunting, fishing and food gathering is a pretty basic right to aboriginal peoples.

[32] The second stage of the process in assessing a claim to an aboriginal right is for the court to determine whether the practice, custom or tradition claimed to be an aboriginal right was, prior to a specific point in the past, an integral part of the distinctive culture of the local aboriginal community in question, in the sense of being one of the community's defining features, and whether it has remained an integral part of the culture of the community in that sense. This stage of assessing the claim of the right to hunt is answered by reflection of the testimony of all the defence witnesses. The evidence presented at trial would support the conclusion that hunting was an integral part of the Métis culture prior to the assertion of effective control by the European authorities. The evidence at trial indicates that the Métis lived off the land for subsistence purposes. Hunting was of central significance to the Métis, and integral to their distinctive society.

[33] I find that the defendants are Métis who were exercising their aboriginal right to hunt. Dan LaFrance, the Provincial Métis Captain of the Hunt was accepted into the Kootenay contemporary Métis society at the time the offences were alleged to have taken place. The other defendants are card carrying members of the local Métis association. They have a presence into the local contemporary Métis society.

[34] During the trial, Dan LaFrance filed the British Columbia Proclamation declaring November 16, 1996 as "Métis Day'. The Proclamation reads as follows:
Whereas the Métis people are recognized as one of Canada's aboriginal peoples pursuant to section 35 of the Constitution Act, 1982, and
Whereas the Métis culture, rich in spiritual beliefs and colourful traditions, is an integral part of British Columbia's multicultural diversity, and
Whereas throughout history, Métis citizens have made significant contributions to the development and success of our Province.
I agree entirely with Dan LaFrance and John Grant Howse that government proclamation is a significant acknowledgement. Dan LaFrance pointed out that Louis Riel was hung on November 16.

[35] There is no evidence to suggest that, the hunting rights of the Métis have been extinguished. Section 35(l) of the Constitution Act, 1982 protects existing aboriginal rights. R. v. Sparrow, (supra), at p.174 makes it clear that extensive regulatory control by government does not imply extinguishment.

[36] Essentially, I have come to the last set of questions in this process: Does the regulatory scheme infringe the preferred method of exercising the practice, custom or tradition? If so, is the infringement minimal and has it been justified ? If the Métis aboriginal right to hunt for food has not been extinguished, has the right been infringed by the Provincial Government through legislation. Any infringement must be justified. The evidence presented at trial indicates unequivocally that the government of British Columbia has not recognized or affirmed the aboriginal hunting rights of it's Métis citizens. In R. v. Sparrow, (supra), the Supreme Court of Canada held that the first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(l). In this case, I find that the aboriginal right of Métis people in British Columbia to hunt moose and deer is interfered with by the regulatory scheme currently in place. There has been no consultation with the local or provincial Métis councils, associations or elders concerning aboriginal hunting rights.

[37] Crown counsel in closing argument said that the Crown does not have to get into proving justification until there has been a finding that there has been an infringement or breach of the aboriginal right to hunt for food. The justification test is outlined in R. v. Sparrow, (supra):
If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addressed the question of what constitutes legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows: First, is there a valid legislative objective? ... If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretative principle derived from Taylor and Williams and Guerin, supra., That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-a-vis aboriginals must be the first consideration in determine whether the legislation or action in question can be justified... we would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification. Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts, and indeed all Canadians.

In the case at bar, there is evidence that the First Nations aboriginals have not been excluded from the aboriginal allocation of moose and deer. From the evidence at trial there is evidence that any non-aboriginal who qualifies for a hunting licence is not excluded from the annual sport hunting quota or allocation of moose and deer. Indeed several of the defendants were able to purchase wildlife tags.

Further, it is clear from the evidence of Dan LaFrance that British Columbia officials have not consulted with the Métis organizations in British Columbia while sport hunting, and other aboriginal allocations are in effect. The Supreme Court of Canada addressed these issues in R. v. Adams [1996] 3 S.C.R. 101 at 134,135, and again recently in R. v. Marshall [1999] S.C.]. No. 66, where at para. 43, it stated:
Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights. The Court has emphasized the importance in the justification context of consultations with aboriginal peoples.

I find the following:

(1) On the agreed admission of facts, the Crown has met its onus regarding the offences charged.

(2) All of the defendants have met their onus in showing that they have an aboriginal right to hunt pursuant to s. 35 of the Constitution Act, 1982 and accordingly the charges against the accused are dismissed.