This case was heard in the Nova Scotia Supreme Court. 

In 2001, the Nova Scotia Provincial Court sentenced Mr. Babin to pay a fine for having fished using gillnets in an unauthorized manner in violation of the federal Fisheries Act. At that trial, Mr. Babin had claimed that he had an Aboriginal right to fish for food under section 35 of the Constitution Act, 1982 because he was Métis. The trial judge had decided that Mr. Babin could not prove that he had a right to fish as a Métis person. Mr. Babin appealed, and in the current case the Nova Scotia Supreme Court had to decide whether the trial judge’s conclusion was correct.  

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It defines Aboriginal people as being Indian, Métis, or Inuit. Mr. Babin argued that he had rights as an Aboriginal person under section 35 because he was Métis. The Court decided whether Mr. Babin could prove that he had this right by applying the test developed by the Supreme Court of Canada in R v Powley 2003 SCC 43 (CanLII).

Mr. Babin needed to prove a number of things. He needed to prove that there had been an historic Métis community in the area where he had been fishing. He needed to prove there was a contemporary community that was a continuation of the historic community and that he was a member of the contemporary community. He had to prove that the practice of fishing for food had arisen after contact with Europeans but before effective European control of the area where he was fishing. He needed to prove that fishing for food was an integral practice that was distinctive to Métis culture. He needed to establish that his fishing was a continuation of the historic Métis practice of fishing. He needed to determine whether the right to fish still existed or if had been extinguished. Finally, the judge needed to decide whether there was in fact a right to fish, whether this right was being infringed, and, if so, whether this infringement was justified. 

The main issue in this case was whether Mr. Babin could prove that fishing for food was a practice that arose within the timeframe required by the test. Before R v Powley, if individuals wanted to argue that they had an Aboriginal right to engage in an activity, they had to prove that the activity had been historically practiced before contact with Europeans. However, the Métis only came into existence after contact with Europeans, so the ordinary test was not suitable for them. Because of this, people asserting a Métis right to engage in a practice must prove that the practice arose after contact with Europeans but before effective European control of the relevant area. 

The trial judge decided that effective European control of the area of Eel Lake, Nova Scotia began in 1670. The trial judge concluded that Mr. Babin could not prove that there had been a Métis community in this area before 1670. This meant that Mr. Babin could not prove that he had an Aboriginal right as a Métis person to fish in this area. 

The Nova Scotia Supreme Court decided that the trial court’s decision was correct. The appeal was dismissed.  

View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2013/2013nssc434/2013nssc434.html

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