The Powley Decision
As of today, the R. v. Powley Case (Powley) remains the most important court decision affecting Métis peoples in Canada. Powley was the first major aboriginal rights case concerning Métis hunting rights decided by the Supreme Court of Canada. The Court decision of 2003 resulted in a set of criteria to determine who can legally qualify for Métis rights. In Powley, the Court outlined 10 specific criteria, which has come to be known as "the Powley Test”, and that shall be applied to Métis communities across Canada. Powley also clarified that the Métis are a distinct people, separate from First Nations and Inuit peoples in Canada.
To sum up the case, in October 1993, father and son Steve and Roddy Powley shot a bull moose just outside of Sault Ste. Marie, Ontario. They tagged the moose with a handwritten document indicating that they were Métis and a statement that read “harvesting my meat for winter.” Because they did not have a valid hunting licence under the provincial Game and Fish Act, they were charged with hunting a moose without a licence and unlawful possession of game.
Upon appearing in court, the Powleys pled not guilty to the charge. They did so due to their belief that, as Métis people, they had a right to hunt for food under Section 35 of the Constitution Act, 1982. Section 35 states that aboriginal rights, including Métis rights, are constitutionally protected; however, Section 35 does not specifically define what these rights are, and neither does it clarify whether these rights fall under federal or provincial jurisdiction. Because the Métis right to hunt had not been previously established or proven in the Courts, Powley was considered a ‘test case’ for Métis rights.
Lower Court Decisions Leading up to the Supreme Court Decision
In December 1998, the Ontario Court of Justice agreed that Section 35 did protect the Métis right to hunt, and therefore acquitted the Powleys. The court ruled that hunting was a historically important practice to the Métis and that it continued to remain integral to the Powley’s modern day Métis community. This decision was appealed by the Crown.
In January 2000, the Crown’s appeal of the 1998 decision was dismissed by the Ontario Superior Court of Justice.
Later in 2000, the Crown appealed again, this time to the Ontario Court of Appeal, arguing that the Métis community in Sault Ste. Marie did not have a significant historical connection to hunting, and therefore did not qualify for exemption from provincial hunting regulations as protected under Section 35 of the Constitution Act, 1982. Furthermore, the province argued that even if the Métis community did hold hunting rights, any infringements on those rights were justified by the scarcity of moose in the region, and the need for their conservation.
In February 2001, the Ontario Court of Appeal dismissed the Crown’s appeal in unanimous decision; however, it granted a one-year stay on the judgement to allow the Ontario government to come up with a new regulatory regime for moose hunting that is consistent with the Constitution Act, 1982, Section 35 for the Métis. The Crown appealed to the Supreme Court of Canada.
In September 2003, the Supreme Court ruled unanimously that the Powleys, as members of the Métis community “in and around” Sault Ste. Marie, could exercise their Métis right to hunt as protected by Section 35 of the Constitution Act, 1982. The Court also established the Powley Test to be used in determining the distinctive aboriginal rights of the Métis. The court also stated that establishing membership in a Métis community was not easily understood and would need to be determined on a case-by-case basis.
The Powley Test
The Powley Test includes the following 10 criteria, all of which must be met to determine a claimant’s legal claim to a Métis right:
- Characterization of the right claimed;
- Identification of the historic, rights-bearing Métis community;
- Identification of the contemporary rights-bearing Métis community;
- Verification of the claimant’s membership in the relevant contemporary Métis community;
- Identification of the relevant time frame;
- Determination of whether the practice is integral to the Métis community’s distinctive culture;
- Establishment of continuity between the historic practice and the contemporary right asserted;
- Determination of whether the right was extinguished;
- If there is a right, determination of whether the right was infringed upon; and
- If the right was infringed upon, whether that infringement can be justified.
Since the Supreme Court of Canada decision in 2003, the Powley case has influenced other Métis rights-based legal challenges, including the Supreme Court’s decision that the federal government failed to provide the Métis with the land grants they were promised in the Manitoba Act of 1870 (otherwise known as the Manitoba Métis Federation decision).
The Powley case also impacted Daniels v. Canada, a historic Supreme Court ruling in 2016. In Daniels, the Supreme Court of Canada ruled that the Federal Government has Constitutional responsibility for Métis and non-Status Indians, marking a historic turning point for Métis and non-Status Indians in Canada and putting an end to a 17-year legal battle.
The Daniels Decision
On April 14, 2016, the Supreme Court of Canada released its decision in Daniels v. Canada (Daniels). What does the Daniels decision mean for communities such as Lac Ste. Anne Métis?
In Daniels, the Court held that Métis and non-status Indians fall within the scope of federal jurisdiction over “Indians” under Section 91(24) of the Constitution. In other words, Canada has legislative authority over Métis and non-status Indians.
The Daniels decision has significant implications for Métis and non-status Indians as this concerns federal and provincial government responsibility and accountability. Specifically, as it pertains to Métis peoples, the Supreme Court identified many instances in which the federal government had assumed jurisdiction over Métis only when it found it convenient to do so.
The Daniels case is important in that Canada can no longer deny that it has responsibility for Métis and non-status Indians, and that the federal government is the appropriate level from which to seek relevant programs, services and benefits more generally.
Lac Ste. Anne Métis Community Association
P.O. Box 2091
Stony Plain, AB T7Z 1X6
Phone: (780) 591-5050