Friday, 25 January 2013

Proving Ethnicity: Aboriginal Rights and Administrative Process

Members of Canada's First Nations have, if they can satisfy the significant evidentiary thresholds, potentially broad rights to engage in traditional practices such as hunting and fishing. At issue in L=Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12 was the administrative structure erected by the province of Alberta to regulate the issuing of fishing licences to members of First Nations. In particular, the provincial government's policy provides that recognition as a member of a First Nation does not automatically entitle an individual to exercise the aboriginal rights protected by s. 35 of the Constitution Act, 1982.

The applicant is a member of a Métis community. He duly presented himself, and the identity card issued by his community, to a Fish and Wildlife Officer and asked for a domestic fishing licence. However, the internal policy under which the Officer was operating made clear that merely presenting an identity card was not enough. Developed pursuant to the Supreme Court of Canada's decision in R. v. Powley, 2003 SCC 43, the policy provides as follows:
A person is a Métis harvester only if he or she meets the test set out in the Powley case.

To demonstrate that you are a Métis harvester, you must provide evidence that you meet the Powley test. You should be prepared to produce evidence that you satisfy the following criteria:

        That you self‑identify as Métis, and for how long you have self‑identified as Métis
                           membership in the Métis Nation of Alberta or a Métis Settlement or a statutory declaration confirming self identification would assist in demonstrating self identification,   
        membership in either of these organizations, or a Statutory Declaration, is not sufficient to meet the Powley test; (underlining added
        That you have an ancestral connection to an historic Métis community in Alberta;
        genealogical history, including where ancestors lived and when they lived there, 
        please go back in time as far back as possible, and in any event, back to the late 1880's;
        That you belong to a contemporary Métis community in Alberta;

        name that community and demonstrate acceptance by and involvement in that community; 
        That you are a resident of Alberta.

Thorough information will help make the decision‑making process efficient.
Ultimately, the applicant was unsuccessful. Lists of those recognized by their communities as Metis are prepared for a specific purpose. Once they are drawn up, they do not necessarily bind the provincial government:
[33]           The purpose of preparing lists of Métis Settlement members is quite specific; it establishes certain statutory rights, such as the right to vote in Settlement elections, and to reside on the Settlement. As Cunningham notes, the Métis Settlement lists establish “membership requirements for Métis settlements for the purpose of establishing a Métis land base”. The Métis Settlements Act does not purport to establish eligibility or membership criteria for all or any other purposes. The resulting membership lists cannot be universal, because not all Métis in Alberta are land-based, and there are many persons with s. 35 Métis aboriginal rights that are not on those lists. There is nothing in Powley or Cunningham to suggest that different Métis membership lists cannot be set for different purposes. The appellant’s argument effectively undermines all the criteria in Powley except the requirement for membership in a contemporary Métis community...
[39]           In summary, Powley does not create a rule that the government is only entitled to have one list of Métis status holders, which the government is required to use for all purposes. Notwithstanding what is written on his Métis Settlement identification card, the appellant is not entitled to s. 35 status just because he is a member of a Métis Settlement. Officer English was entitled to delay the issuance of a Métis Domestic fishing licence to the appellant pending further proof of his status.
Moreover, although the Supreme Court of Canada has warned against "unstructured discretionary administrative regime[s]", the policy in question was not problematic:
[24]           Whether the definition of “Métis” appears in a policy or a regulation does not determine the outcome of this case. The appellant’s basic argument is that the government must accept as Métis all those acknowledged by the Métis community. The appellant does not argue, as in Adams, that the parameters surrounding the discretion are too vague, rather he argues that there is no discretion at all. That conclusion is said to be mandated by the Constitution. If the argument is correct, the government’s Métis fishing policy would be equally unconstitutional whether it was entrenched in a regulation, or stated in a policy, or merely reflected in the decisions denying particular licences.
So the applicant will have to go back to the Officer with more evidence next time, unless he can persuade the Supreme Court of Canada to grant leave to appeal.

Considering whether this case might go to Ottawa opens some avenues of inquiry. It may be said to undermine First Nations' right to self-governance for questions of identity to be resolved by administrative agencies rather than by the groups themselves (although some body has to decide, and administrative agencies might not be a less obvious choice than, say, courts). In addition, if provinces erect administrative barriers which in practice prevent members of First Nations from exercising rights to which they are otherwise entitled, this is surely problematic. Perhaps an overly structured discretionary administrative regime is just as troublesome as an unstructured one.

However, the facts of the present case, which seem quite favourable to the province, may not present an appropriate vehicle to travel down these avenues.

UPDATED: Edited to correct my erroneous placing of s. 35 in the Charter rather than its proper place. Mea culpa, and thanks to commenter Pascal.


  1. Let me point what I believe to be a little technical mistake here. Section 35 is not technically part of the Charter, but is included in Part II of the Constitutionnal Act, 1982.

    That would be important, for example, in deciding if Section 1 "Oakes" test would apply to a Section 35 breach (I believe it doesn't).

    However, this post is really interesting, as always.

  2. Quite right, thank you.

    Yes, s. 1 does not apply to aboriginal rights infringements, but the SCC magicked up a very similar test...