Powley Case
Original Case Summary - Pre-Supreme Court
This summary, prepared by the law firm Pape and Salter, provides
a thorough yet easy to understand overview of the Powley case. As
well it answers many questions as to what the case means for Mitis
harvesting in Ontario.
The Powley Appeal: A Case Summary prepared by Pape
and Salter
The Story
On October 22, 1993, Steve and Roddy Powley went hunting and killed
a bull moose. They tagged their catch with a Mitis card and a note
that read "harvesting my meat for winter". A week later, Conservation
Officers charged the Powleys with hunting moose without a license
and unlawful possession of moose.
At their trial, the judge ruled that the Powleys had an Aboriginal
right to hunt as Mitis, a right protected by s.35 of the Constitution
of Canada. The charges were dismissed, but Ontario appealed the
decision. In January 2000, the Ontario Superior Court of Justice
confirmed the trial decision and dismissed Ontario's appeal. Ontario
again appealed the decision to the Ontario Court of Appeal. For
the first time, Mitis rights under s. 35 of the Constitution would
be decided in a court at this level.
On February 23, the Court if Appeal unanimously upheld the earlier
decisions and confirmed that the Powleys have an Aboriginal right
to hunt as Mitis. But the Court did more than just confirm the earlier
decisions. It made the strongest and clearest statements yet about
the existence of the Mitis people, the status of their constitutional
rights and the government's obligations towards Mitis.
Earlier Decisions Confirmed
In this appeal, Ontario argued that the Mitis community in Sault
Ste. Marie was not a distinct Aboriginal people - it had no identity
or rights separate from Indians. Further, hunting was not important
to the Mitis. Therefore, Ontario argued, the Mitis have no right
to hunt. And even if they did, it must give way to the hunting rights
of Indians and sport hunters.
The Court dismissed all of Ontario's arguments and confirmed the
decisions made in the earlier hearings. In particular, the Court
confirmed that:
Historically, there was a Mitis community at Sault Ste. Marie
and hunting was an integral part of its distinct culture.
A Mitis community still exists in Sault Ste. Marie that is rooted
in the historic Mitis community, and hunting is still a crucial
part of its culture.
The Powleys belong to the Mitis community at Sault Ste. Marie.
As a result, the Powleys have an Aboriginal right to hunt for
food as Mitis.
The Court rejected Ontario's argument that the Powleys had lost
their connection to the historic Mitis community because their ancestors
"took treaty" and moved to a reserve. The Court said Mitis could
legally accept treaty benefits without giving up their Aboriginal
rights or Mitis status.
The Court also confirmed that Ontario's hunting regulatory system
is an unfair limitation on this right. It fails to treat Mitis equally
with other Aboriginal rights holders and it gives Mitis no priority
over other users who have no constitutional right to hunt.
The Mitis as an Aboriginal People of Canada
For the first time, the courts have recognized that the Mitis
exist as a separate and unique Aboriginal people. This decision
will ensure that the Mitis people, who have always been described
as "the forgotten people", can now take their rightful place in
Ontario.
The Court noted that throughout history, the government has refused
to accept the existence of the Mitis as a people. It has used the
uncertainty about who is "Mitis" and who represents the interest
of Mitis to deny the Mitis people their rights.
The Court recognized the complex and difficult history of the
Mitis people but said this history could not be used to deny the
Mitis their existence as a people or their constitutional rights.
In fact, because of this history, courts should be flexible in deciding
factual matters when determining Mitis rights.
The Court stated in the clearest terms that the Mitis are a unique
and equal Aboriginal people of Canada: The constitution formally
recognizes the existence of distinct "Mitis peoples", who, like
the Indian and Inuit, are a discrete and equal subset of the larger
class of "aboriginal peoples of Canada".
Mitis Define who is Mitis
The Court confirmed that Aboriginal harvesting rights can be exercised
by Mitis who:
Demonstrate a genealogical connection to the historic Mitis community;
Identify themselves as Mitis; and,
Are accepted by the Mitis community. The Court recognized that
there may be others who legitimately claim Mitis status but do not
have a genealogical connection to the historic Mitis community.
Whether or not these people may also exercise Mitis harvesting
rights was not decided in this case. The Court said this issue could
not be decided on the facts of this case, and must be left for another
case.
The courts have left it open for the Mitis Nation to define its
own citizens.
Mitis Constitutional Rights
The Court noted that the government has always relied on the uncertainty
about who is "Mitis" and who represents the interest of Mitis to
deny the Mitis people their constitutional rights:
The basic position of the government seems to have been simply
to deny that these rights exist, absent a decision of the courts
to the contrary. While I do not doubt that there has been considerable
uncertainty about the nature and scope of Mitis rights, this is
hardly a reason to deny their existence.
When defining the constitutional rights of the Mitis, the Court
said that the separate identity of the Mitis people must be fully
respected and their constitutional rights must be generously interpreted.
The Court also stated, for the first time ever, that the government
owes the Mitis a fiduciary duty. This means that the government
is in a trust-like relationship with the Mitis people and must act
accordingly The Court said while it was not possible to fully
define Mitis rights in one case, the full scope of their constitutional
rights would be realized over time.
The Mitis Right to Hunt for Food
In this case, the Court ruled that the Powleys had an aboriginal
right to hunt for food as Mitis.
The Court said that the government should now consult and negotiate
with the Mitis community to create a new regulatory system that
fully recognizes and respects the Mitis right to hunt for food:
[N]ow that Mitis rights have been recognized, the government must
proceed with immediate dispatch to establish a scheme that accords
due respect and recognition to those rights.
The Court confirmed that Ontario's current hunting regulations
are unconstitutional because they treat Mitis differently from Indians
and give Mitis harvesting rights no priority over other users who
have no constitutional right to hunt.
The Court said that while issues of conservation of resources
and the interests of other users are important, the new regulatory
systems must give priority to Mitis rights, the same priority that
is given to other Aboriginal rights holders.
Now the Government Must Negotiate
The Court recognized how the government has consistently failed
to act on issues of Mitis rights. They were not convinced that the
government had made any serious effort to come to grips with the
question of Mitis hunting rights. This failure to act could not
be justified:
The government cannot simply sit on its hands and then defend
its inaction because the nature of the right or the identity of
the bearers of the rights is uncertain.
Mitis harvesting rights are a legal reality. The government now
has a choice. It can stop regulating Mitis hunting, in the same
way that it does not regulate Indian hunting. Or, it can create
a new regulatory system that would cover Mitis food harvesting.
If the government decides to create a new regulatory system, it
must recognize and respect the constitutional rights of the Mitis.
This means that Mitis hunting rights must be equal to Indian hunting
rights and both must be given priority over all other users.
The Court confirmed the statements in the earlier decisions urging
good faith negotiations between the government and representatives
of the Mitis community. It quoted a renowned scholar: [C]ourts should
design their remedies to facilitate negotiations between First Nations,
governments and other affected interests. The aim of this negotiation
process should be consensual decision-making or treaty making.
To allow for these negotiations to occur, the Court delayed the
effect of this case for one year. What
Does the "Suspension" of the Decision Mean?
The Court delayed the effect of this decision for one year. This
means that for one year things remain the same. Mitis may still
be charged if they hunt or fish without a license or out of season.
The delay was granted only to give the Ontario government time
to start consensual based negotiation with the Mitis to design new
hunting regulations.
The government must act immediately if it wants to create a new
hunting regulatory system. If the new system is not in place by
February 23, 2002, the law will no longer apply to Mitis.
What Does this all Mean?
What about Mitis who do not live in the Sault Ste. Marie area?
The Powley decision is now law for Ontario. Strictly speaking,
the case applies to the Mitis community in Sault Ste. Marie, but
the case will have a big impact on all Mitis in Ontario.
The Ontario government must now take action to recognize and respect
Mitis rights. The Court strongly criticized the government for its
failure to take action and will not be sympathetic if it continues
to deny Ontario Mitis their rights.
We say the Mitis have hunting rights in Ontario which they will
be able to exercise after the one year suspension has ended.
What about Mitis in the rest of the Mitis Nation homeland?
Ontario?s Court of Appeal does not bind other provinces. So, this
decision does not mean that the harvesting rights of Mitis are now
recognized in other parts of the Mitis homeland.
Still, a Court of Appeal decision is very important. This decision
will certainly be reviewed very carefully by the governments of
the other provinces.
Governments across Canada will pay particular attention to the
Court?s statements that government cannot sit on its hands and do
nothing with respect to Mitis rights. The same goes for statements
that Mitis do not lose their identity or rights simply because one
of their ancestors ?took treaty?.
Can Ontario Mitis fish for food?
Yes, after the one year suspension has ended. The Powley decision
was specifically about hunting for food, but it will apply to fishing
for food as well. It will be the same as the Sparrow decision, which
was about fishing but the whole country accepted that it also applied
to hunting.
How does the suspension affect Mitis harvesting?
The effect of this decision was suspended for one year, whether
the province appeals or not. This means that during this year (any
time before February 23, 2002), Ontario Mitis may be charged if
they hunt or fish without a license, out of season or in violation
of any law.
The Mitis Nation of Ontario will maintain its previous policy.
The MNO will support Mitis Nation of Ontario harvesters who are
charged, so long as they are following MNO's Harvesting Policy and
have a harvester's certificate.
What happens if the province decides to appeal?
The province has until April 24, 2001 to decide if they will seek
leave (get permission from the Supreme Court of Canada) to appeal
to the Supreme Court of Canada.
If they are granted leave, we will likely be at the Supreme Court
in the winter or spring of 2001/2002. If they are denied leave,
it means the Supreme Court agrees with the Ontario Court of Appeal
and the decision will stand as the law - the Mitis have a right
to hunt.
If the province decides not to appeal, again the decision will
stand as law - the Mitis have a right to hunt.
What about the court mandated consensual based negotiations?
These negotiations must be between the government and the Mitis
Nation of Ontario, not with individuals or communities. This will
require the MNO to be fully funded so that they can participate
in a meaningful way.
Negotiation must be based on:
Recognizing and respecting Mitis harvesting rights.
Making sure these rights are equal to Indian harvesting rights
and given priority over other users.
The Mitis Nation of Ontario defines who are the Mitis.
The Mitis Nation of Ontario has sent a letter to the Ontario Government
saying it is ready to start consensual negotiations on this basis.
To date, there has been no response.
What about other hunting and fishing prosecutions?
There are several cases involving hunting and fishing charges
that are set to go to trial right now.
The province has not said whether it will carry through with these
prosecutions or stay the charges.
The Mitis Nation of Ontario is now prepared to go to trial in
these cases using the Powley decision as a precedent.
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