Powley Case

Context

In 1993, Métis hunters Steve Powley and his son Roddy shot and killed a bull moose near Sault Ste. Marie, Ontario. They attached a handwritten note to their catch, saying that they were harvesting meat for the winter. However, because they did not have a licence under the provincial Game and Fish Act, they were charged with unlawful hunting and possession of game.

The Powleys pleaded “not guilty,” asserting that they had a right, as Métis people, to hunt for food under section 35 of the Constitution Act, 1982, which recognizes and affirms “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.” However, this section does not define Métis rights, nor does it clarify whether these rights fall under federal or provincial jurisdiction. Therefore, courts were left to make their own conclusions. Since the courts had not yet established the Métis right to hunt, the Métis Nation of Ontario recognized this as a test case and provided financial support for the trial.

Initial Ruling

The Powleys were acquitted in December 1998 in the Ontario Court of Justice after Judge Charles Vaillancourt agreed that section 35 did protect their Métis right to hunt. The court ruled that hunting was a historically important practice to the Métis and continued to remain integral to their modern Métis community.

The R. v. Powley decision laid out criteria for who could be considered Metis rights-holders. The judge defined someone who can claim Métis rights under section 35 of the Constitution Act, 1982, as a “person of Aboriginal ancestry; who self-identifies as a Métis; and who is accepted by the Métis community as a Métis.” The court ruled that section 35 refers to distinctive Métis peoples who, besides their mixed Indigenous-European ancestry, developed their own customs, ways of life and group identity separately from their ancestors. The court did not, however, offer a definition of Métis identity for cultural purposes; it only defined criteria for Métis rights-holders. (See also Métis Are a People, Not a Historical Process and The “Other” Métis.)

Appeals

The Crown appealed this ruling but was overruled in the Ontario Superior Court of Justice in January 2000. Justice Stephen O’Neill dismissed the appeal and reaffirmed the original ruling. However, his court adopted different criteria for who could claim Métis rights than the trial court. O’Neill held that a Métis person is one “who (a) has some ancestral family connection (not necessarily genetic); (b) identifies himself or herself as Métis; and (c) is accepted by the Métis community or a locally-organized branch, chapter or council of a Métis association or organization with which that person wishes to be associated.” In order to satisfy the third point, the court ruled that Métis individuals or groups have to demonstrate that a mixed-ancestry group “formed a ‘distinctive’ collective social identity, lived together in the same geographic area, and shared a common way of life.”

The Crown appealed again, this time to the Ontario Court of Appeal. The Ontario government argued 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. Further, the province held that even if they 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. However, the Ontario Court of Appeal upheld the previous two rulings in a unanimous decision in February 2001. Although it dismissed the government’s arguments, the Appeals Court granted a one-year stay on the judgement, which would allow the Ontario government to either come up with a new regulatory hunting system for the Métis or stop regulating Métis hunting completely.

Supreme Court Decision

The Crown then 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 a 10-part test, known as the Powley Test, to be used to determine the distinct Indigenous rights of the Métis. The court stated that establishing membership in a Métis community was not simple and had to be determined on a case-by-case basis.

Powley Test

The Powley Test includes the following 10 factors, all of which must be identified to determine a claimant’s legal claim to a related Métis right:

1. Characterization of the right claimed: in the context of harvesting, it must be determined whether the hunting is for food, exchange or commercial purposes. It is not species-specific, but a general right to hunt for food in the traditional hunting grounds of the Métis community as a whole;
2. Identification of the historic, rights-bearing Métis community that existed in the same geographic area;
3. Identification of the contemporary Métis community;
4. Whether the claimant is a member of the contemporary Métis community;
5. Historical time frame of the practice, to determine if it was integral to the community;
6. Whether the practice is integral to the culture of the claimant;
7. Whether today’s Métis community continues the practice;
8. Whether the right was extinguished (e.g., by the Crown);
9. Whether the right was infringed upon (e.g., by the Crown);
10. If the right was infringed, whether that infringement can be justified (e.g., if the Crown claims its infringement is due to health, safety and conservation concerns, it must prove that a real threat exists).

The Powley Test applies a new historic time frame to Indigenous rights in Canada. Previous test-based criteria, such as those applied in the Sparrow case (1990) and Van der Peet case (1996), were based on pre-European-contact conditions. However, since Métis people exist as a result of European contact (they have mixed Indigenous and European heritage), it would be impossible to find a Métis right “pre-contact.” Therefore, the court decided that the historical time frame of a Métis right had to be after European contact, but before the Crown had “effective control” over the community in question.

Impact

The Powley case influenced other Métis rights-based legal challenges, including Manitoba Métis Federation (MMF) v. Canada (2013) and R. v. Daniels (2016). In the MMF v. Canada case, the Supreme Court found that the federal government failed to provide the Métis with the land grant they were promised in the Manitoba Act of 1870. (See also Métis Scrip in Canada.) In the Daniels case, the Supreme Court ruled that both Métis and Non-Status Indians are included in the definition of Indian in section 91 (24) of the Constitution, 1867, which covers the federal government’s power over matters relating to “Indians, and Lands reserved for the Indians.” However, this does not mean that Non-Status people are now Status Indians; the 2016 judgement rules that Non-Status people fall under the legislative jurisdiction of the federal government.