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:
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.
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.
Unfortunately, true recognition of the Métis under this constitutional protection remained largely unfilled. For some time governments in Canada took the position that Métis had no existing Aboriginal rights protected by s. 35 and refused to negotiate with the Métis people regarding their rights.
In the early 1990’s, in response to these steadfast government positions, the Métis Nation began its ‘hunt for justice’ by defending its citizens and their rights in the courts, forcing life into the constitutional commitment made in 1982.
As a part of this ‘hunt for justice’, R. v. Powley [“Powley”] was heard by the Supreme Court of Canada in 2003. It was the first time questions relating to the purpose of s. 35 with regards to the Métis and the existing Aboriginal rights of Métis were considered by the highest court in Canada.
On September 19, 2003, in a unanimous decision, the Supreme Court affirmed what the Métis people had 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 decision was a respectful affirmation of what the Métis people have always believed and stood up for,as well as an opportunity for Canada to begin fulfilling its substantive promise to the Métis.