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.
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.