You lose some, you lose some

During the 2003 provincial election, Danny Williams wrote to the Labrador Metis Nation, courting LMN members’ votes in the hotly-fought district of Lake Melville.

In his October 8, 2003, letter, Danny wrote:

A Progressive Conservative government will acknowledge that the decision in the Powley case applies to Metis in Newfoundland and Labrador, and will par ticipate with specific rights affirmed in the Powley decision and other rights protected under s. 35 of the Constitution.

In a clever bit of lawyering, Chairman Dan, shortly post-election, nuanced his pre-election comments:

Premier Danny Williams today announced that the province has concluded its legal review of the Supreme Court of Canada decision in R. v. Powley, handed down on September 19, 2003, and has applied the criteria set out in the decision to the Labrador Métis Nation (LMN). "I made a commitment that this court decision would apply to Métis in the province, and I stand by that commitment. Based on the province's legal review of Powley, it is our assessment that members of the LMN do not meet the criteria put forward by the Supreme Court to determine who may be Section 35 Métis and enjoy aboriginal rights," Premier Williams said.

Catch that?In Danny’s measured, lawyerly view, Powley applies to Métis in Labrador. It’s just that the Métis population of Labrador is 0.

Powley × 0 = 0.

Except…

Except that, as any good lawyer knows, under our system of government that’s not Chairman Dan’s determination to make.

It’s the courts’.

And in the yet-unreported Labrador Métis Nation v. Her Majesty in Right of Newfoundland and Labrador, 2006 N.L.T.D. 119, handed down on July 19, 2006, the Hon. Justice Robert A. Fowler respectfully, and spectacularly, disagrees with that illustrious legalist, the Hon. The Premier.

[3] What this court is being asked to consider is whether or not the government of Newfoundland and Labrador in constructing the 250 kilometre, Phase III Section of the Trans Labrador Highway between Happy Valley-Goose Bay and Cartwright Junction in Labrador had and has a duty to consult those people who claim Aboriginal status as Inuit-Metis of south and central Labrador? [sic]

[4] To analyze this question I intend to follow the ten step approach employed by the Supreme Court of Canada in R. v. Powley...

[…]

[131] While counsel for the Provincial Crown argues that it has a problem in determining with whom it should be consulting; “the difficulty of identifying members of the Metis community must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.” (R. v. Powley (supra) paragraph 49).

Powley is referenced nearly a dozen times in Judge Fowler’s 135-para reasons for judgment.

Once upon a time, Danny Williams used to criticize the provincial government for being taken to court, and losing, so often.

That was then.