July 18, 2018
200-09-008957-158; 200-09-008958-156; 200-09-008959-154;
200-09-008960-152; 200-09-008961-150; 200-09-008962-158;
200-09-008963-156; 200-09-008964-154; 200-09-008965-151;
Giroux, Bouchard, St-Pierre
Appeals from ten judgments of the Superior Court granting applications for dispossession under ss. 54, 60 and 61 of the Act respecting the lands in the domain of the State (CQLR, c. T-8.1). Dismissed.
In the judicial district of Chicoutimi and the surrounding area, many people occupy sites on public land of the state without any property right, lease or occupancy permit, in breach of s. 54 of the Act respecting the lands in the domain of the State. The respondent therefore filed several applications for dispossession. Fourteen of the cases joined were contested by a consolidated defence in which the appellants invoked Aboriginal rights, including those granted to the Métis by s. 35 of The Constitution Act, 1982 (R.SC. 1985, App. II, No. 44, Schedule B). Although none of them have any recognized Aboriginal rights whatsoever, they nevertheless claimed the status of Métis based on the criteria set out in R. v. Powley (S.C. Can., 2003-09-19), 2003 SCC 43, SOQUIJ AZ-50192924, J.E. 2003-1751,  2 S.C.R. 207.
The trial judge did not commit a palpable and overriding error in finding on a balance of probabilities that the evidence did not establish the existence of a historic community on the disputed land. He erred, however, in assuming that the culture, practices or traditions must be distinct to be recognized as an Aboriginal right, whereas it must be distinctive. However, this error is not determinative here because, other than the fur trade, the evidence does not reveal sufficiently defined practices or traditions establishing the existence of a historic Métis community whose rights would be protected by s. 35 of The Constitution Act, 1982.
Moreover, it is absolutely possible to imagine that the members of a historic community could settle in several distinct locations while forming a single regional unit. Therefore, it should not be necessary to prove that the members of a community lived near each other and formed a group of a certain density. Although a historic community may be regional and nomadic, this does not mean that the appellants were exempt from having to establish the existence of a community having its own customs, traditions and way of life. Thus, even if the judge erred by comparing the historical situation of the appellants to that of the Métis in Powley, this error was not determinative.
Finally, control refers to the time period before which the existence of a Métis community grouping together Métis people with a distinctive collective identity, living together in the same geographical area and sharing a common way of life, must be established. In this case the judge did not err in finding that the period of effective control in the territory known as the “Traite de Tadoussac” or the “Domaine du Roi” falls within the period from 1842 until the end of 1850.
*Summary by SOQUIJ
Text of the decision:
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