Québec c Corneau

Background

Several individuals were occupying public land in the judicial district of Chicoutimi without any right of ownership, leasehold or permit of occupation, contrary to a Quebec statute entitled An Act respecting the lands in the domain of the State (the “Act”). A number of these individuals were ordered to leave and while some complied, others objected and asserted an Aboriginal right to occupy the land. The respondent, Ghislain Corneau, was among those asserting an Aboriginal right to remain on the land and in 1999, the Crown initiated a procedure under the Act to force him to abandon the site and restore it to its former condition.

The respondent asserted an Aboriginal right to occupy the camp as an incident to his exercise of hunting and fishing rights and at first he did so based on his Montagnais (Innu) ancestry. However, after the Supreme Court of Canada released its seminal decision on Métis rights in 2003, R. v. Powley, the respondent amended his defence to instead assert Aboriginal rights premised on him being Métis. The Court subsequently granted a limited right of intervention to an organization named the Métis community of Domaine-du-Roy and Seigneurie de Mingan, which the respondent Corneau joined in 2005. Later, in compliance with a decision of the Quebec Court of Appeal, the Court granted the same right of intervention to the Mashteuiatsh, Essipit and Nutashkuan Innu First Nations. Meanwhile the Attorney General commenced several other petitions to dispossess individuals from public land in the judicial district of Chicoutimi and in May 2009 the Court ordered that 17 of these cases be heard together. 14 of these cases, including that of the respondent Corneau, involved the assertion of constitutionally entrenched Aboriginal rights by individuals identifying as Métis. The Attorney General and the Innu intervenors contested these assertions.

The Court’s Judgment: Existence of a historic Métis community

The Court found that the respondents failed to demonstrate the existence of a historic Métis community in the territory where they asserted Aboriginal rights. It was noted that in Powley several factors were identified in support of the existence of a historic Métis community: a group of people of mixed heritage, 'Indian and non-Indian'; living together as a society in the same territory; having developed culture, practices and traditions that were distinct from their ‘Indian and non-Indian’ ancestors and recognized by other ethnic groups; and being aware of their ‘collective specificity’ and capable of occasionally expressing it.

The Court noted that the respondents relied on more than 30 years of research accumulated by a regional historian, a vast corpus of over 2000 regional history sources, mostly primary, assembled by an “army” of State-mandated experts, and numerous additional sources. Nevertheless, they were still unable to furnish any objective proof that would allow the Court to identify a historic collective in the territory at issue that had a social organization distinguishing it from the original Indigenous inhabitants of the territory or the Euro-Canadians that followed. Nothing distinguished the supposed Métis individuals from their biological forebears in terms of clothing, language, or culturally specific practices – no “[TRANSLATION] behaviour, idea [or] interest the slightest bit different and unique to a group that [was] neither Indian nor white”. The Court found that the scant evidence of any distinct features being acquired by these individuals of mixed ancestry during three waves of “métissage” (genetic intermixing of Indigenous and non-Indigenous people) could be explained by the fact that they had maintained their European cultural heritage rather than developing their own.

The Court also found there were few if any examples in the evidence of meetings or gatherings of the allegedly Métis individuals for their own exclusive purposes; instead, they appeared to have socialized and intermingled with various other inhabitants of the same territory without discrimination in one multi-ethnic population. The Court opined that if there had been a historic Métis collective that was distinct from the Indigenous and non-Indigenous populations of the territory it would have been noted in the extensive primary historic evidence canvassed before it.

The Court’s Judgment: Existence of a contemporary Métis community

In terms of whether a contemporary Métis community existed, the Court found that each of the respondents had established a genealogical link with an ancestor with Indigenous origins. Likewise, each respondent was a member of an organization dedicated to the defence of Métis rights – namely, the Métis community of Domaine-du-Roy and Seigneurie de Mingan intervening in this litigation. However, the Court found that these two facts alone were insufficient evidence of a contemporary Métis community.

The Court noted that the Métis organization of which the respondents were members was only created in 2005 in order to defend their asserted hunting rights against the threat of the Crown’s negotiations with Innu First Nations. It also noted that the organization's loose membership rules, which offered membership to anyone with evidence of a genealogical link to a Métis ancestor who filled out the application and paid an annual fee of $30. Likewise, the Court noted that there was some controversy over the organization's legitimacy evidenced by the fact that the Métis Nation of Quebec disputes the authority of such organizations, which it sees as representing both Métis and non-Métis individuals in spurious land claims. The Court held that such a recently minted organization clearly could not be the inheritor of the practices of an ancestral community nor could it claim to hold the rights asserted by the respondents without rigorously establishing a link between its members and a historic Métis community.

In terms of recognition of their contemporary community, the respondents pointed to, among other things, a reference in the Royal Commission Report on Aboriginal Peoples of 1996 in which it was said that in Quebec, the Métis are “[TRANSLATION] a presence that cannot be ignored”. However, the Court found that this observation was made before the Supreme Court of Canada’s ruling in Powley and solely on the basis of testimony from individuals claiming Métis identity without evidence of a connection to a historic Métis community. Consequently, it could not bind the Court. Other documents suggesting recognition of their contemporary community were similarly dismissed on the basis that they did not provide evidence of a historic community on the territory at issue.

The Court’s Judgment: Membership in a contemporary Métis community

In assessing whether the respondent Corneau belonged to a contemporary Métis community, the Court had no doubt that Corneau and several his co-respondents had formed a special relationship with the forest in which they fished, hunted and harvested berries and it found it could not deny the sincerity of the quasi-spiritual attachment Corneau described having to animals and his Indigenous ancestry. However, the Court held that Powley required more rigorous evidence of membership in a contemporary community.

The Court found his self-identification to be primarily a recent phenomenon driven by opportunism. While Corneau had been aware of his Indigenous ancestry from the time he was 8 or 9 years old, it was not until he was an adult and the authorities disturbed his 'activities in the forest' that he decided to identify as Aboriginal to claim hunting rights. The Court also had serious reservations regarding the respondent Corneau’s claim to ancestral links to a Métis community as the supposedly Métis ancestor he claimed to descend from had been adopted at age three by a Euro-Canadian father whom she lived with up until her marriage.

Other respondents

On the same date, the Court released 13 additional decisions with respect to the other respondents whose Métis rights claims were heard concurrently.