The Powley Decision, Supreme Court of Canada 2003

 

The Powley decision (2003) preceded the Daniels decision (2014). Whereas the Powley decision described who is a Métis person and accorded them the right to hunt and harvest as Aboriginal persons. It did not limit the use of the word Métis to a certain group of Aboriginal persons in Manitoba. It only goes so far as to say there probably is a Métis community in Sault Ste. Marie and Powley as a member of that community has a right to hunt unmolested by the Province of Ontario. Daniels later clarifies Powley in stating according to the Constitution Act of 1982 all non-status Indians are Aboriginal and have the same rights as status Indians to be determined by future courts. An important legal concept came out of the Powley decision, called the Powley Test. You will find the parameters in the decision. It is important for the Sang-Mêlés Acadien of Western Nova Scotia to understand they meet all the requirements of the Powley Test and are right to assert their title as a distinct Aboriginal People.

 

The Decision

On appeal from the court of appeal for Ontario

The respondents, who are members of a Métis community near Sault Ste. Marie, were acquitted of unlawfully hunting a moose without a hunting licence and with knowingly possessing game hunted in contravention of ss. 46 and 47(1) of Ontario’s Game and Fish Act.  The trial judge found that the members of the Métis community in and around Sault Ste. Marie have, under s. 35(1)  of the Constitution Act, 1982 , an aboriginal right to hunt for food that is infringed without justification by the Ontario hunting legislation.  The Superior Court of Justice and the Court of Appeal upheld the acquittals.

The term “Métis” in s. 35  of the Constitution Act, 1982  does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears.  A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.  The purpose of s. 35  is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture.  In applying the Van der Peet test to determine the Métis’ s. 35  entitlements, the pre‑contact aspect of the test must be adjusted to take into account the post‑contact ethnogenesis and evolution of the Métis.  A pre‑control test establishing when Europeans achieved political and legal control in an area and focusing on the period after a particular Métis community arose and before it came under the control of European laws and customs is necessary to accommodate this history.

 Aboriginal rights are communal, grounded in the existence of a historic and present community, and exercisable by virtue of an individual’s ancestrally based membership in the present community.  The aboriginal right claimed in this case is the right to hunt for food in the environs of Sault Ste. Marie.  To support a site‑specific aboriginal rights claim, an identifiable Métis community with some degree of continuity and stability must be established through evidence of shared customs, traditions, and collective identity, as well as demographic evidence.  The trial judge’s findings of a historic Métis community and of a contemporary Métis community in and around Sault Ste. Marie are supported by the record and must be upheld.

 The verification of a claimant’s membership in the relevant contemporary community is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community.  Self‑identification, ancestral connection, and community acceptance are factors which define Métis identity for the purpose of claiming Métis rights under s. 35 .  Absent formal identification, courts will have to ascertain Métis identity on a case‑by‑case basis taking into account the value of community self‑definition, the need for the process of identification to be objectively verifiable and the purpose of the constitutional guarantee.  Here, the trial judge correctly found that the respondents are members of the Métis community that arose and still exists in and around Sault Ste. Marie. Residency on a reserve for a period of time by the respondents’ ancestors did not, in the circumstances of this case, negate their Métis identity.  An individual decision by a Métis person’s ancestors to take treaty benefits does not necessarily extinguish that person’s claim to Métis rights, absent collective adhesion by the Métis community to the treaty.

 The view that Métis rights must find their origin in the pre‑contact practices of their aboriginal ancestors must be rejected.  This view in effect would deny to Métis their full status as distinctive rights‑bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1) .  The historical record fully supports the trial judge’s finding that the period just prior to 1850 is the appropriate date for finding effective European control in the Sault Ste. Marie area.  The evidence also supports his finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850.  This practice has been continuous to the present.

Ontario’s lack of recognition of any Métis right to hunt for food and the application of the challenged provisions infringes the Métis aboriginal right and conservation concerns did not justify the infringement.  Even if the moose population in that part of Ontario were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs.  Further, the difficulty of identifying members of the Métis community should not be exaggerated so as to defeat constitutional rights.  In the immediate future, the hunting rights of the Métis should track those of the Ojibway in terms of restrictions for conservation purposes and priority allocations.  In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt.