A complex court battle is taking shape over Indigenous fishing and hunting rights in the Ottawa River watershed between Algonquins in eastern Ontario and a newly-recognized Métis community based in Mattawa.
In a recent decision, the Court of Appeal for Ontario ruled a lower-court judge had wrongly narrowed the scope of a lawsuit launched by the Algonquins of Ontario.
Former Algonquins of Pikwakanagan First Nation Chief Kirby Whiteduck is the representative plaintiff in the case.
The three-member appeal panel said courts had to confront the “open question” of what to do in cases with competing Indigenous interests at stake. Such cases, the province’s high court noted, are likely to multiply as Métis communities in Ontario — and across Canada — assert their Aboriginal rights.
Those rights were expanded and defined in a 2003 Supreme Court decision known as R. v. Powley.
“How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water,” Justice Peter Lauwers said in writing for the appeal panel. “In my view,” he added, “the imperative of reconciliation also applies to competing Indigenous rights.”
In their lawsuit, the Algonquins of Ontario contend the Ontario government had a duty to consult them before awarding the Mattawa/Ottawa River Métis harvesting rights for fish and game within the Algonquin settlement area.
By failing to consult them, the Algonquins say, the government breached their rights. They want the court to remedy the situation by restoring the previous state of affairs, when only Algonquins had Indigenous fishing and hunting rights on traditional Algonquin territory.
The appeal court said the Algonquins have the right to seek a legal declaration that Ontario wrongly concluded there’s a historic Métis community based in Mattawa. If the court finds such a community does exist, the Algonquins want a declaration that any Métis harvesting rights do not extend into Algonquin territory.
In 2017, Ontario recognized six additional Métis communities in the province, including the Mattawa/Ottawa River Métis and the Killarney Métis, and extended harvesting rights to them in a large area overlapping traditional Algonquin territory.
The appeal court noted that any move to restore the previous state of affairs would necessarily affect the new rights bestowed on the Métis by the Ontario government.
“This is the open water to which I alluded earlier, which Powley has left in its wake, and which must be faced squarely,” Lauwers wrote.
The Algonquins of Ontario argue the government’s decision to grant an unlimited number of harvester cards to the Métis communities in the Ottawa River watershed “will cause irreparable harm to the wildlife and fish resources in a substantial portion of their settlement area, impairing their way of life.”
Indigenous hunters do not require licences from the province, but receive harvester cards issued by their respective governance organizations.
The Algonquins of Pikwakanagan and others in Ontario have conducted a managed harvest of moose, elk and deer since 1991. They set harvest targets with input from the Ministry of Natural Resources and Forestry and issue a limited number of harvest tags through a draw.
Lawyers for the Algonquins of Ontario contend some Algonquins have self-identified as Métis in order to gain more ready access to harvester cards in the years since the government extended hunting and fishing rights to Métis.
The result, the Algonquins contend in a statement of claim, is that “ongoing harvesting by Métis has coincided with a serious decline in the moose population” in the Algonquin settlement area.
In Ontario, the Algonquin land claim encompasses 36,000 square kilometres of territory within the watersheds of the Ottawa and Mattawa rivers.
The Métis Nation of Ontario says its harvesting policy is rooted in Métis tradition, which values conservation and sustainability. An independent review, it says, affirms the organization reliably identifies Métis rights holders in issuing harvester cards.
The Métis Nation of Ontario, now including about 25,000 registered members, has also agreed to share data it collects about the game harvest with the province.
The clash over Indigenous fish and game harvesting rights in Ontario has been brewing for decades — ever since the Powley case expanded the traditional boundaries of the Métis nation and established a test for who could qualify for Métis rights.
Before Powley, the Métis nation was considered Western-Canadian based. But, in October 1993, Steve and Roddy Powley shot a bull moose near Sault Ste. Marie and were charged with hunting without a licence. They fought the charges by invoking their constitutionally protected Aboriginal rights as Métis.
Lawyers for the Métis Nation of Ontario successfully convinced the court that the Powleys were members of a forgotten community of Sault Ste. Marie Métis, with historical roots stretching back to the fur trade, who had gone underground to avoid persecution.
The case established Métis fish and game rights in Sault Ste. Marie and created a test for extending those rights elsewhere.
Among other things, the Powley test requires that Métis claimants establish they have a historical presence in an area with links to a present-day community.
In 2014, the Métis Nation of Ontario released a report on the Métis in the Mattawa/ Nippissing Region. Researchers reviewed English and French records and concluded a distinct Métis community emerged along the Ottawa River and its tributaries in the early 1800s.
The Algonquins of Ontario have criticized that report, saying it relies on Algonquin family lines to establish the existence of a Métis community.
There are now seven historic Métis communities recognized in Ontario.
The Algonquins of Ontario and the Métis Nation of Ontario did not respond to requests for comment.