The Powley Story

Part 1: The Court Case 

On October 22, 1993, father and son, 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”. One week later, the Powleys were charged by Conservation Officers for hunting moose without a license and unlawful possession of moose contrary to Ontario’s Game and Fish Act. The Métis Nation of Ontario decided to use the charges against the Powleys as a test case, providing full political and financial support throughout. At both the Ontario Court of Appeal and the Supreme Court of Canada, the Métis National Council, on behalf of the entire Métis Nation, intervened in support of the case and provided financial support.

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.

What the Supreme Court said

The Court said 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. Specifically, the Court set out the test for establishing Métis harvesting rights protected by s. 35 of the Constitution Act, 1982. The Court applied this test to the Sault Ste. Marie Métis community and to the Powleys and found that the Powleys were exercising the Sault Ste. Marie Métis community’s constitutionally protected right to hunt.

This does not mean however, that the case is limited in its application only to the Sault Ste. Marie Métis community. The test will apply to Métis communities across the Métis Nation Homeland. The Court also spoke about the urgent need to develop a more systematic method of  identifying Métis rights-holders. In answer to government claims about Métis identification problems, the Court said that this issue was not insurmountable and that the difficulties must not be exaggerated in order to defeat Métis claims.

Part 2: Who are the Métis in Section 35?

This question of who the Métis are was discussed at length before the Court. Many of the lawyers for the various governments argued that there were no Métis “peoples”; that there were only individuals with mixed Indian and European heritage. The Supreme Court did not agree with these arguments, nor did it set out a comprehensive definition of who the Métis people are. 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 collectives 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.