In 1982, after generations of fighting for justice, the existing Aboriginal and Treaty rights of Canada’s Aboriginal peoples received constitutional protection.
Section 35 of the Constitution Act, 1982 provides:
- (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.
This constitutional protection was a victory for all Aboriginal peoples in Canada. For the Métis Nation, the explicit inclusion of the Métis in s. 35 was viewed as a new beginning after over 100 years of denial, avoidance and neglect by governments in Canada. Even within the Parliament of Canada, section 35 was described as a “political watershed” and a “turning point for the status of native peoples” in Canada.
The promise of this 1982 recognition of the Métis Nation remained largely unfilled until very recently, with governments in Canada taking the position that the Métis had no existing Aboriginal rights protected by s. 35 and refusing to negotiate or deal with the Métis people and their rights.
In response to these steadfast federal and provincial government positions and beginning in the early 1990s, the Métis Nation began its ‘hunt for justice’ by defending its citizens and their rights in the courts, as a way of breathing life into the constitutional commitment made to the Métis in 1982.
As a part of this on-going ‘hunt for justice’, R. v. Powley [“Powley”] was heard by the Supreme Court of Canada in March, 2003. Powley was the first case to bring the issues of the purpose of s. 35 to the Métis and the question of whether the Métis have existing Aboriginal rights, before the highest court in Canada.
On September 19, 2003, in a unanimous decision, the Supreme Court affirmed what the Métis people have been saying for over twenty years - s. 35 is a substantive promise to the Métis which recognizes their distinct existence and protects their existing Aboriginal rights. The Powley decision marked a new day for the Métis Nation in Canada. The Supreme Court’s decision was respectful affirmation of what the Métis people have always believed and stood up for, and is as well as, an opportunity for Canada to begin fulfilling its substantive promise to the Métis.
R V Powley