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SOMBA K'E/YELLOWKNIFE
The controversy is deepening over the government-imposed restrictions on the aboriginal harvest of the Bathurst caribou herd, now that the North Slave Metis Alliance (NSMA) is taking the territorial court to court claiming its rights have been violated.

President Bill Enge has filed an application for a judicial review of the GNWT's decision to exclude the Metis from the limited aboriginal harvest.

"We're fighting back against this gross display of discrimination," said Enge.

"We spent two years fruitlessly asking for a small annual harvesting quota of 50-75 caribou from the Bathurst caribou herd only to be told by the minister of Environment and Natural Resources, Michael Miltenberger, that the territorial government does not recognize our members as Metis with distinct aboriginal rights in the North Slave region of the Northwest Territories."

In January 2010, Miltenberger instituted a complete ban on hunting the Bathurst herd after a 2009 population survey showed the herd had declined to just 32,000 animals from around 126,000 in 2006.

In December 2010, once the Wek'eezhii Renewable Resources Board came up with a management plan, a limited aboriginal harvest of 300 animals was sanctioned and split between Yellowknives Dene and Tlicho communities.

The legal notice filed by the Metis Alliance declares that the GNWT informed Enge and the organization that its members "do not constitute a distinct aboriginal people with aboriginal or treaty rights"; members "are expected to make arrangements with the Tlicho or Yellowknives Dene First Nation to access potential harvest allocation cards"; and "any meetings with the NSMA at which GNWT representatives have discussed caribou management ... did not constitute consultation respecting the asserted Metis harvesting rights of NSMA members."

The Metis Alliance's court filing asserts that Miltenberger and Fred Mandeville, the Environment and Natural Resources superintendent for the North Slave region, breached their constitutional duty to consult and accommodate the Metis people before establishing a limited aboriginal harvest of the Bathurst herd.

In a 2004 Supreme Court of Canada case, Chief Justice Beverly McLachlin wrote that the Crown's duty to consult "arises when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it."

The Metis Alliance's lawyer, Christopher Devlin, said the Supreme Court of Canada has said that indigenous people don't have to prove their rights in order to be consulted.

"In legal terms they have to show a prima facie case - that they could meet 'Powley' if they went to trial," said Devlin.

The "Powley test" is a 10-part legal test for determining Metis rights under section 35 of the Constitution Act, 1982, as well as whether the individual or group in question is entitled to exercise those rights.

The Metis Alliance's legal notice puts forward points to indicate that the group's members do possess an aboriginal right to hunt by virtue of the test's criteria.

Enge said the North Slave Metis have been harvesting caribou in the area for more than 200 years and the government's decision to exclude them from the limited harvest "is trampling on our aboriginal rights as established in the constitution of our country."

Enge said Miltenberger is wrongly deferring the responsibility for determining the Metis Alliance's rights to the federal government and adds that he finds this "disturbing."

"Now this flies in the face of the GNWT's position that they're mature enough to make those kind of decisions," said Enge.

"What I mean by that is they are asking for greater powers to be devolved into the hands of this government but yet at the first sign they have to do something they run behind the skirts of the federal government to hide from their legal responsibility to make that determination."

Enge said the jurisdiction over wildlife has already been devolved to the GNWT, which has the power to determine which groups could partake in the caribou hunt.

Enge said he expects the court to pronounce that the North Slave Metis are section 35 aboriginal rights-bearing Metis people.

He also anticipates the ruling may have implications beyond the issue at hand.

"Not only are we being excluded from the caribou harvest but we're being excluded from the devolution agreement ,too. We have an expectation that once our aboriginal rights are recognized by this court that will also apply to the context of what this government is doing (with devolution)."

As of press time, the GNWT had yet to respond to Enge's filing. Calls to Miltenberger for comment were redirected to the Justice department.

"Because it's in front of the courts we won't be speaking to the issue," said Sue Glowach, senior communications adviser for the Department of Justice.

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