Supreme Court of Canada –  2 S.C.R. 236
Delivered the same day as Powley. The Supreme Court refuses to conclude that the Manitoba Natural Resources Transfer Agreement applies to Métis, but notes that they could use section 35 of the Constitution Act, 1982 to have their aboriginal rights recognized.
Can Métis be considered as “Indians” under the Manitoba Natural Resources Transfer Agreement?
No, the Convention specifically concerns Indians, and not the Métis communities (unanimous decision).
Between: Ernest Lionel Joseph Blais
And: the Crown of Manitoba
Interveners: Canada, Saskatchewan, Alberta, the Métis National Council and Congress of Aboriginal Peoples
In 1994, the decision R. v. McPherson by the Manitoba Court of Queen’s Bench recognized Métis rights under section 35, much to the dismay of the Department of Natural Resources, which vowed to charge any Métis caught hunting, fishing or trapping in violation of the Wildlife Act. The Act itself was amended in order to include new fines for any violations (Chartrand, 2004: 236).
In order to build a test case to have their rights recognized, Ernest Blais and two other Manitoban Métis went hunting in the District of Piney, Manitoba, where deer hunting is prohibited under the province’s Wildlife Act. Blais killed a deer while hunting for food. He was charged and convicted for hunting out of season on Crown lands pursuant to the Wildlife Act of Manitoba.
Blais: He is not subject to the Wildlife Act since it infringes on his Aboriginal right to hunt for food as a member of a Métis community, which is protected under sect. 35 of the Constitution Act, 1982. Hence, he is entitled to the protection of section 13 of the Natural Resources Transfer Agreement of Manitoba, which permits “Indians” to hunt on Crown lands at all times.
The Manitoba Crown: Section 13 does not apply to the Métis, as they are a group distinct from the “Indian” group of Aboriginal people.
Provincial Court (1997): Blais is convicted. His Aboriginal rights’ defence is rejected.
Manitoba Court of Queen’s Bench (1998): The conviction is confirmed.
Manitoba Court of Appeal (2001): The conviction is again upheld.
The Court. McLachlin, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps
An evaluation of the historical context in which sect. 13 of the Natural Resources Transfer Agreement of Manitoba was adopted clearly shows the legislator’s intention of excluding the Métis from the term “Indian.” Furthermore, the relevant section is under the title “Indian Reserves,” thus corroborating this analysis.
Finally, the provision was enacted in order to palliate the special needs of Indians as pupils of the Crown. Accordingly, the protection could not be extended to the Métis, who were more independent communities at that time.
The Métis could use the protection of section 35 of the Constitution Act, 1982 to claim site-specific hunting, fishing or trapping rights.
In order to have their harvesting rights recognized, the Métis based their claim on the Powley decision, which was heard and determined at the same time as Blais. The criteria used in the former were more likely to act in their favour, rather than basing their claim on the Natural Resources Transfer Agreement (Horton and Mohr, 2005: 774).
R. v. Powley,  2 S.C.R. 207
Chartrand Lionel. 2004. Are Métis Persons “Indians”? Challenging Manitoba’s Natural Resources Transfer Agreement, in Saskatchewan Law Review 67: 235-256.
Horton Andre and Christine Mohr. 2005. R. v. Powley: Dodging Van der Peet to Recognize Métis Rights, in Queen’s Law Journal 30 (Spring): 772-824.