Powley Case FAQs
Frequently Asked Questions
1. Does this case apply only to Sault Ste. Marie?
No. The Supreme Court set out a test for how a Métis community establishes a s. 35 right to hunt, as well as who can exercise that right to hunt. This test will be applied to communities throughout the Métis Nation Homeland.
2. 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.
3. How do we define a Métis community?
This is a difficult question that does not have a straight forward answer. The word “community” can be used in many different ways. It can be used to refer to a collective of individuals in one town or a larger regional collective identity or even the Métis Nation as a whole. In Powley, the Court said that a ”Métis community can be defined as a group of Métis with a distinctive collective identity living together in the same geographic area and sharing a common way of life.” The Court found that there is a Métis community in and around Sault Ste. Marie, but it did not deny the possibility that this community may be a part of larger regional community or a distinct aboriginal people. As well, in Blais, the Court said that Mr. Blais is “a member of the Manitoba Métis community.” Issues with respect to identifying the extent of the local and regional communities that make up the Métis Nation will need to be determined through research, consultations with Métis citizens, and discussions with governments.
4. Are there limitations on my harvesting rights?
Yes. Conservation, health and public safety are all possible limitations.
5. Did the Supreme Court define who the Métis people are?
No, in fact the Court states that it is only speaking of the Métis in s. 35 in general terms.The Court only set out three broad factors (self-identification, ancestral connection and community acceptance) to be used in identifying who can exercise a Métis community’s s. 35 right to hunt. It remains the position of the Métis Nation that the right to determine who are members of the Métis Nation can only be exercised by the Métis themselves; however, in order to exercise a Métis community’s right to hunt, the Métis identification elements of the current legal test set out by the Supreme Court in Powley must be met.
6. Is the Métis community at Sault Ste. Marie a “Métis people” by themselves?
No. The Court only decided that the Métis community at Sault Ste. Marie has an existing right to hunt protected by s. 35. In fact, the Court explicitly said that it did not decide “whether this community [Sault Ste. Marie] is also a Métis 'people', or whether it forms part of a larger people that extends over a wider area....” The Métis Nation maintains its position that it is a distinct Aboriginal people in Canada recognized in s. 35. Sault Ste. Marie and other Métis communities throughout the historic Métis Nation Homeland are a part of the larger Métis Nation. These communities share a common history, language, way of life, culture and kinship connections to form a distinct “people” based on international law standards.
7. Are Métis harvesting rights the same as Indian harvesting rights?
In general, yes. Métis and Indians are to get the same priority allocations to 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. In the Prairie Provinces, Indians may have two layers of constitutional protection - s. 35 rights and the Natural Resources Transfer Agreement (NRTA). Métis in Manitoba and likely Métis in Saskatchewan and Alberta, 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.