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MNO Statement on Harvesting Rights and the Structure at Pond Lake

by ahnationtalk on February 22, 202438 Views

February 22, 2024

The emergence and ongoing existence of distinct Métis communities in Ontario is an unquestionable fact. Notably, Ontario is the home of R. v. Powley (“Powley”). Powley is the first—and only—Supreme Court of Canada case to recognize a Métis community that holds an Aboriginal right to harvest for food that is protected by section 35 of the Constitution Act, 1982 (“Section 35”). In 2003, Canada’s highest court unanimously concluded:

Members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under [Section 35].

In Powley, the Supreme Court confirmed that not all Métis come from the Red River in Manitoba. The Court held that “given the vast territory of what is now Canada, we should not be surprised to find that different groups of Métis exhibit their own distinctive traits and traditions.” The Sault Ste. Marie Métis community is located over 1400 kms away from the Red River, in what is now northcentral Ontario.

In addition, the Supreme Court recognized in Powley that Métis harvesting rights are equal to those of other Indigenous peoples, are a “part of the special aboriginal relationship to the land,” and that “[i]n the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt.”

The Métis Nation of Ontario (MNO) supported and advanced the Powley case from trial all the way to the Supreme Court of Canada. The MNO is the democratic, province-wide self-government for rights-bearing Métis citizens and communities within Ontario. The MNO stands by all of the Métis communities we represent and the recognition of their harvesting rights, as confirmed in the MNO-Ontario Harvesting Framework Agreement.

Following a collaborative process with the MNO that spanned almost seven years and included the review of extensive historical research similar to what was relied upon in Powley, Ontario recognized six historic Métis communities in Ontario in 2017 (in addition to the Métis community recognized in Powley). These are not new Métis communities. They petitioned or took collective action when historic treaties were being negotiated with First Nations in the 1800s but were ignored. While Métis were excluded then, our communities and culture never disappeared. This is what grounds the existence of the seven rights-bearing Métis communities the MNO represents today, all of which are located in northern Ontario, including around the Upper Great Lakes.

Métis harvesting rights have been accommodated by Ontario based on the MNO’s well-documented rights assertions for over two decades. Following an independent review in 2017, the reliability of MNO’s system of identifying Métis rights-holders was confirmed. The review found that 100% of MNO Harvesters Card files reviewed met the criteria set out in Powley. In 2018, Ontario and the MNO entered into the MNO-Ontario Harvesting Agreement, recognizing Métis-created laws and systems, including the legitimacy of the MNO Harvesting Policy and Harvesters Cards.

The 2018 MNO-Ontario Harvesting Agreement requires the Ontario Ministry of Natural Resources and Forestry (MNRF) to treat MNO Harvesters Card holders the same as First Nation harvesters for the purposes of enforcement. The Agreement also sets out future negotiations on key issues, including incidental cabins.

The Structure at Pond Lake

Whether an incidental cabin is a part of an Indigenous community’s custom and traditions, and whether it is authorized by the Indigenous community in question, is a distinct issue from the existence of an Indigenous community and their harvesting rights.

The MNRF has a process to allow the establishment of incidental cabins for rights-bearing Indigenous communities. It is the MNO’s understanding the structure at Pond Lake was built pursuant to a conditional approval arising from the MNRF’s authorization and approval process.

After becoming aware of the structure at Pond Lake, the MNO initiated an internal investigation into this matter. The MNO, which includes within its self-government structure the Regional Consultation Committee for the Mattawa/Lake Nipissing Traditional Territory, has determined that it did not authorize and does not recognize this structure at Pond Lake as a Métis incidental cabin.

Incidental Cabins must be for Community Use because Aboriginal Rights are Communal

One of the requirements of an incidental cabin is that such a structure must clearly be for community use. An incidental cabin is not a means for any Indigenous individual, family, or their friends to obtain a recreational property or a hunting location solely for themselves on Crown lands. The MNO’s internal review of the structure at Pond Lake determined that the rights-bearing Métis community that relies on the Mattawa/Lake Nipissing Traditional Territory did not collectively authorize or support the construction or use of the structure as an incidental community cabin, and indeed were unaware of it until concerns were recently brought to the attention of the MNO.

The MNO cannot support a structure that was built without the collective authorization from the Métis community or the MNO’s processes and decision-making bodies being respected, particularly in circumstances where the MNO was unable to verify that the structure met the eligibility requirements for an incidental cabin as a part of a collectively held Métis right.

The MNO has written to the MNRF to make clear that neither our Métis government nor the rights-bearing Métis community that relies on the Mattawa/Lake Nipissing Traditional Territory collectively authorized or supported the construction or use of the structure at Pond Lake.

The MNO is also seeking to be added as a party in the recent litigation brought by Temagami First Nation with respect to the cabin. The MNO’s participation in this litigation will be to protect and defend the MNO-Ontario Harvesting Framework Agreement and all of the rights-bearing Métis communities that the MNO represents from the outlandish claims being made by some that there are no rights-bearing Métis communities in Ontario.

The MNO categorically stands by—and fully supports—the recognition of the Mattawa/Ottawa River Métis community and the recognition of this Métis community’s collectively-held rights. The unauthorized construction of this cabin cannot be allowed to harm the collectively held rights of this Métis community and MNO citizens who are rights-holders. The MNO’s role in this litigation will be to ensure the Métis community’s collective rights and interests are protected.

Background:

The Regional Consultation Committee (RCC) determined that it does not recognize the cabin constructed near Pond Lake as an incidental Métis community cabin for two reasons:

The Métis harvester did not follow the appropriate procedure for obtaining Métis community authorization or support; and
The cabin does not meet the requirements for an incidental cabin.

The Métis harvester initially sought to obtain authorization to construct a cabin on Pond Lake in the autumn of 2017. The general issue of incidental cabins was brought to a Provisional Council of the Métis Nation of Ontario (PCMNO) meeting held on November 17, 2017, and resolution PC17118-09 was passed. It reads:

Requests from MNO Harvesters for support for incidental cabins will be responded to by the Deputy Chief Captain of the Hunt, copying the Regional Councillor, Captain of the Hunt and Chief Captain of the Hunt, indicating that the MNO is developing a process to review incidental cabins, and, until the time that the process is complete, MNO will not be able to review or process incidental cabin requests. MNO Harvesters will be provided with information on the case law and will be informed that MNO recommends that they do not construct incidental cabins without MNO support.

The MNO’s Deputy Chief Captain of the Hunt communicated the above information to the Harvester on February 7, 2018, stating that “at this point in time, the MNO recommends that harvesters do not construct Incidental Cabins without MNO support.”

The Métis harvester then sought to obtain support from the Acting Captain of the Hunt (COTH) for the Mattawa/Lake Nipissing Traditional Territory, without disclosing that the Harvester had already unsuccessfully approached the MNO Chief COTH, Deputy Chief COTH, and MNO Regional Councillor for the Mattawa/Lake Nipissing Traditional Territory. The Acting COTH provided a letter expressing his individual support for the cabin, but neither he nor the Harvester sought to involve the RCC for the Mattawa/Lake Nipissing Traditional Territory. The RCC’s involvement and authorization is an essential part of any attempt to obtain approval to build an incidental cabin since such an authorization engages the collective rights of the Métis community.

Based on the investigation that was undertaken and the information the RCC has, no authorization was obtained by the Métis harvester for the cabin. In fact, the RCC was unaware of the cabin’s construction until very recently. The RCC did not authorize the cabin’s construction or use. At no point in time did the Harvester contact the RCC to seek support for the cabin or communicate an intention that the cabin be for the use of the Métis community as a whole.

While the MNO and Ontario continue to discuss incidental cabins under our Harvesting Agreement, the MNO continues to maintain a moratorium on Métis incidental cabin approvals.

NT6

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