Powley Case
Fulfilling Canada's Promise
R. v. Powley
A Summary of the Supreme Court of Canada Reasons for Judgment
This Powley Summary was written and prepared by Jean Teillet. Ms. Teillet
is an Aboriginal rights lawyer with the law firm of Pape & Salter.
She is also the great grand niece of Louis Riel.
Jean Teillet was legal counsel for the Powleys at all levels of court.
Co-counsel at trial was Clayton Ruby. Co-counsel at the Ontario Court
of Appeal and at the Supreme Court of Canada was Arthur Pape.
In Brief- what the Court said
In a unanimous decision, the Supreme Court of Canada confirmed the constitutional
protection for the harvesting rights of the Métis.
The Court set out a general test for determining Métis rights within
s. 35 of the Constitution Act, 1982. In this decision the Court applied
that test to the Sault Ste Marie Métis community and to the Powleys.
However, this does not mean that the case is limited in its application
only to the Sault Ste Marie Métis community. The test applies to
Métis communities across Canada.
The Court said that the Métis were included as one of the "aboriginal
peoples of Canada" in s. 35 to recognize them, to value distinctive
Métis cultures, and to enhance their survival.
The Court also spoke about the urgent need to develop more systematic
methods to identify Métis rights-holders. In answer to government
claims about the identification problems, the Court said that it was not
an insurmountable problem and that the difficulties must not be exaggerated
in order to defeat Métis claims.
The Powley Story
On October 22, 1993, Steve and Roddy Powley killed a bull moose just outside
Sault Ste Marie, Ontario. They tagged their catch with a Métis
card and a note that read "harvesting my meat for winter". The
Powleys were charged with hunting moose without a license and unlawful
possession of moose.
In 1998, the trial judge ruled that the Powleys have a Métis right
to hunt that is protected by s. 35 of the Constitution Act, 1982. The
charges were dismissed, but the Crown appealed the decision. In January
2000, the Ontario Superior Court of Justice confirmed the trial decision
and dismissed the Crown's appeal. The Crown appealed the decision to the
Ontario Court of Appeal. On February 23, 2001 the Court of Appeal unanimously
upheld the earlier decisions and confirmed that the Powleys have an Aboriginal
right to hunt as Métis. The Crown then appealed to the Supreme
Court of Canada.
On September 19, 2003 the Supreme Court of Canada, in a unanimous judgment,
said that the Powleys as members of the Sault Ste Marie Métis community,
can exercise a Métis right to hunt that is protected by s. 35 of
the constitution.
The Text of s. 35 of the Constitution Act, 1982
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples
of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the
Indian, Inuit and Métis peoples of Canada.
The Purpose for Including Métis in s. 35
The Métis were included in s. 35 because Canada made a commitment
to recognize and value the Métis and to enhance their survival
as distinctive communities.
The purpose and the promise of s. 35 is to protect as "rights"
practices that were historically important to the Métis, and which
have continued to be important in modern Métis communities. The
Court describes these practices as "integral" to the Métis.
The Court said that the framers of the Constitution Act, 1982 recognized
that Métis communities must be protected along with other Aboriginal
communities.
Who are the Métis in s. 35?
This question was discussed at length before the Court. Many of the Crown
lawyers argued that there were no Métis "peoples" and
that there were only individuals with mixed Indian and European heritage.
The Court made a distinction between Métis identity (eg: for citizenship,
cultural purposes, etc.) and Métis rights-holders. The decision
only relates to Métis rights-holders.
The Court did not set out a comprehensive definition of Métis.
Instead, the Court set out who the Métis are for the purposes of
s. 35. The Court said that the term "Métis" in s. 35
refers to distinctive Métis peoples who, in addition to their mixed
ancestry, developed their own customs, way of life, and group identity
- separate from their Indian, Inuit or European forebears.
The Court said that the term "Métis" in s. 35 does not
include all individuals with mixed Indian and European heritage.
The Powley Test - the New Test to Define s. 35 Métis Rights
The Supreme Court said that the appropriate way to define Métis
rights in s. 35 is to modify the test used to define the Aboriginal rights
of Indians (the Van der Peet test). This Métis test will now be
called the Powley test.
The test is set out in ten parts:
1. Characterization of the right - for a harvesting right, the term "characterization"
refers to the ultimate use of the harvest. Is it for food, exchange or
commercial purposes? The Court said that the Métis right to hunt
is not limited to moose just because that is what the Powleys were hunting.
Métis don't have to separately prove a right to hunt every species
of wildlife or fish they depend on. The right to hunt is not species-specific.
It is a general right to hunt for food in the traditional hunting grounds
of the Métis community.
2. Identification of the historic rights bearing community - An historic
Métis community was a group of Métis with a distinctive
collective identity, who lived together in the same geographic area and
shared a common way of life. The historic Métis community must
be shown to have existed as an identifiable Métis community prior
to the time when Europeans effectively established political and legal
control in a particular area.
3. Identification of the contemporary rights bearing community - Métis
community identification requires two things. First, the community must
self-identify as a Métis community. Second, there must be proof that the
contemporary Métis community is a continuation of the historic
Métis community.
4. Verification of membership in the contemporary Métis community - There
must be an "objectively verifiable process" to identify members
of the community. This means a process that is based on reasonable principles
and historical fact that can be documented. The Court did not set out
a comprehensive definition of Métis for all purposes. However,
it set out three components to guide the identification of Métis
rights-holders: self-identification, ancestral connection to the historic
Métis community, and community acceptance. Difficulty in determining
membership in the Métis community does not mean that Métis
people do not have rights.
5. Identification of the relevant time - In order to identify whether
a practice was "integral" to the historic Aboriginal community,
the Court looks for a relevant time. Ideally, this is a time when the
practice can be identified and before it is forever changed by European
influence. For Indians, the Court looks to a "pre-contact" time.
The Court modified this test for Métis in recognition of the fact
that Métis arose as an Aboriginal people after contact with Europeans.
The Court called the appropriate time test for Métis the "post
contact but pre-control" test and said that the focus should be on
the period after a particular Métis community arose and before
it came under the effective control and influence of European laws and
customs.
6. Was the practice integral to the claimant's distinctive culture - The
Court asks whether the practice - subsistence hunting - is an important
aspect of Métis life and a defining feature of their special relationship
to the land. The Court specifically noted that the availability of a particular
species over time is not relevant. So even though the case may be about
moose hunting, as it was with the Powleys, the issue is really about the
right to hunt generally. The Court found that, for the historic Sault
Ste Marie Métis community, hunting for food was an important and
defining feature of their special relationship with the land.
7. Continuity between the historic practice and the contemporary right
- There must be some evidence to support the claim that the contemporary
practice is in continuity with the historic practice. Aboriginal practices
can evolve and develop over time. The Court found that the Sault Ste Marie
Métis community had shown sufficient evidence to prove that hunting
for food continues to be an integral practice.
8. Extinguishment - The doctrine of extinguishment applies equally to
Métis and First Nation claims. Extinguishment means that the Crown
has eliminated the Aboriginal right. Before 1982 this could be done by
the constitution, legislation or by agreement with the Aboriginal people.
In the case of the Sault Ste Marie Métis community, there was no
evidence of extinguishment by any of these means. The Robinson Huron Treaty
did not extinguish the Aboriginal rights of the Métis because they
were, as a collective, explicitly excluded from the treaty. A Métis
individual, who is ancestrally connected to the historic Métis
community, can claim Métis identity or rights even if he or she
had ancestors who took treaty benefits in the past.
9. Infringement - No rights are absolute and this is as true for Métis
rights as for any other rights. This means that Métis rights can
be limited (infringed) for various reasons. If the infringement is found
to have happened, then the government may be able to justify (excuse)
its action. The Court said here that the total failure to recognize any
Métis right to hunt for food or any special access rights to natural
resources was an infringement of the Métis Aboriginal right.
10. Justification - Conservation, health and safety are all reasons that
government can use to justify infringing an Aboriginal right. But they
have to prove that there is a real threat. Here there was no evidence
that the moose population was under threat. Even if it was, the Court
said that the Métis would still be entitled to a priority allocation
to satisfy their subsistence needs in accordance with the criteria set
out in Sparrow. Ontario's blanket denial of any Métis right to
hunt for food could not be justified.
Métis Identification
The Court did not set out a comprehensive definition of Métis for
all purposes. It did, however, set out the basic means to identify Métis
rights-holders. The Court identified three broad factors: self-identification,
ancestral connection to the historic Métis community, and community
acceptance.
Self-identification - the individual must self-identify as a member of
a Métis community. It is not enough to self-identify as Métis,
that identification must have an ongoing connection to an historic Métis
community.
Ancestral Connection - There is no minimum "blood quantum" requirement,
but Métis rights-holders must have some proof of ancestral connection
to the historic Métis community whose collective rights they are
exercising. The Court said the "ancestral connection" is by
birth, adoption or other means. "Other means" of connection
to the historic Métis community did not arise with the Powleys
and will have to be determined in another case.
Community Acceptance - there must be proof of acceptance by the modern
community. Membership in a Métis political organization may be
relevant but the membership requirements of the organization and its role
in the Métis community must also be put into evidence. The evidence
must be "objectively verifiable." That means that there must
be documented proof and a fair process for community acceptance.
The Court said that the core of community acceptance is about past and
ongoing participation in a shared culture, in the customs and traditions
that reveal a Métis community's identity. Other evidence might
include participation in community activities and testimony from other
community members about a person's connection to the community and its
culture. There must be proof of a "solid bond of past and present
mutual identification" between the person and the other members of
the Métis community.
What can be understood from this community acceptance requirement is that
in order to claim s. 35 rights it is not enough to prove a genealogical
connection to a historic Métis community and then join a Métis
organization. One must have a "past and ongoing" relationship
to the Métis community.
FAQs - frequently asked questions
I have a provincial Métis Nation card - can I hunt?
Yes, if you can also provide proof of an ancestral and ongoing connection
to an historic Métis community in the territory where you are hunting.
What does "ancestral connection" to the historic Métis
community mean?
This means that one of your ancestors was a member of the historic Métis
community.
Are Métis harvesting rights the same as Indian harvesting rights?
In general, yes. Métis and Indians are to get the same priority
allocations of the harvest. However, in some places Indian harvesting
rights have been extinguished or are now set out in a treaty. In such
cases, Métis may have harvesting rights that are different. On
the Prairie Provinces, Indians have two layers of constitutional protection
- s. 35 and the Natural Resources Transfer Agreement (NRTA). Métis,
as a result of the recent Supreme Court of Canada decision in Blais, cannot
claim the additional protection of the NRTA. This does not mean that Métis
do not have constitutional protection for their harvesting rights in the
Prairies, it simply means that Métis harvesting on the Prairies
has only one layer of constitutional protection - s. 35.
The Court said these rights are "site-specific" - what does
that mean?
This does not mean an individual lake or camp. It refers to the general
region that should equate to the traditional hunting territory of the
Métis community. Métis "site-specific" harvesting
rights may be exercised in that geographic area.
How do we define a Métis community?
A community could be defined in many ways. It could be a town, city or
village. It could include outlying areas. It could be a regional community
or a community of interests. The Court did not decide whether the Sault
Ste Marie Métis community was itself an "Aboriginal people"
or part of a larger regional people or an even larger body.
Does this case apply only to Sault Ste Marie?
No. The Court set out a test that applies to all Métis across the
country.
What happened to the stay application by the Ontario Crown?
The Court of Appeal granted a one-year stay (suspension) of its judgment.
The Crown, before the Supreme Court of Canada, asked for another stay.
The Supreme Court affirmed the Appeal Court's jurisdiction to grant the
stay, but declined to grant another. The Court noted that more than a
year had elapsed since the expiry of the stay and "chaos does not
appear to have ensued". The court saw no compelling reason to issue
an additional stay.
Directions from the Court
The Court gave several specific directions with respect to Métis.
The first is that the identification of Métis rights holders is
an "urgent priority". Both the provincial and federal governments
have been saying that they could not recognize Métis rights because
they were uncertain as to who the Métis were. The Court said that
it is not an "insurmountable task" to identify Métis
rights-holders and that the difficulties are not to be exaggerated in
order to deny Métis constitutional rights.
The Court also said that regulatory regimes that do not recognize and
affirm Métis rights and afford them a priority allocation equal
to First Nations are unjustifiable infringements of Métis rights.
The Court said that membership requirements in Métis organizations
must become more standardized.
While the Court did not order negotiations, it gave clear directions that
it expects a combination of negotiation and judicial settlement to more
clearly define the contours of the Métis right to hunt.
About this Powley Summary
This Powley Summary has been prepared by the law firm of Pape & Salter.
It is intended to be an easy to read guide to the Supreme Court of Canada's
decision in R. v. Powley. It should not be used as a legal opinion.
About Pape & Salter
Pape & Salter is a small law firm based in Toronto and Vancouver.
We specialize in Aboriginal rights law. For over twenty years our firm
has been involved in Aboriginal rights litigation at all levels of court
for First Nations and for Métis. We have also acted as legal counsel
in land claims negotiations in the Yukon, NWT and British Columbia.
We were honored to represent the Powleys at all levels of court and to
be part of the legal team for the Métis National Council in its
interventions in Blais.
Contact
Jean Teillet
In Vancouver at:
Pape & Salter
460-220 Cambie Street
Vancouver, BC
V6B 2M9
Phone: 604 681-3002
Fax: 604 681-3050
In Toronto at
Pape & Salter
529 Palmerston Blvd.
Toronto, Ont.
M6G 2P4
Phone: 416 916-2989
Fax: 416 916-3726
A general overview of Métis law can be found in the Métis
Law Summary - 2003, written and updated annually by Jean Teillet.
An electronic version of the Métis Law Summary-2003 can be found
on the website of the Métis Nation of Ontario at www.metisnation.org
or on the website of the Métis National Council at www.metisnation.ca
|
