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Ancestral Rights

The Powley Act

On September 19, 2003, the Supreme Court of Canada pronounced its decision in Her Majesty the Queen v. Steve Powley and Roddy Charles Powley, upon the existence and the range of Metis rights under the terms of Article 35 of the Constitutional Act of 1982.

The Powley decision undoubtedly marks an important moment for Metis rights in Canada, and clearly and directly states that Article 35 contains a substantial promise to the Metis people of Canada, and protects their existing aboriginal rights. One can expect that this cause has the same importance for the Metis, as the previous decisions of Guerin, Sparrow and Delgamuukw for aboriginal rights.

On October 22, 1993, Steve and Roddy Powley shot and killed a bull moose, that they transported to their residence in Sault Ste-Marie. Steve Powley affixed a handwritten tag to the animal's ear detailing, as required by hunting regulations, the date, time and location of the kill. He signed the tag and included his membership number of the Ontario Metis and Aboriginal Association. One week later, they were accused of illegally hunting the moose and to knowingly having game in their possession that was hunted under infringement of the Game and Fish Act, R.S.O. 1990, c. G.1.

The two accused pleaded not guilty while admitting that they hunted the moose without a hunting permit. They maintained that their subjection to the disposals of the hunting and fishing laws applicable to hunting moose undermined their rights to hunt for food as guaranteed in paragraph 35 (1) of the Consitutional Act of 1982.

The Court, unanimously, sided with the Powley, judging that the members of the metis community in the Sault Ste-Marie area had ancestral aboriginal rights to hunt for food, rights protected by article 35.

In its decision, the Court tackled the question of the identity of the Metis in comparison with article 35, stating three important criteria: to self identify as a member of the metis community, the exisitence of ancestral bonds with a metis community and the current acceptance of the individual by the metis community.

In Powley, the modifications to the criteria of aboriginal rights made by the Supreme Court is also very important. The Court rejected all arguments made by the Attourney General to the effect that the aboriginal rights of the Metis could not exist because the Metis people, by definition, could not have existed before contact with Europeans. The criteria established in the Van der Peet test was adapted to account for, on one hand, the ethnogenesis of the Metis, which is before contact, and the distinct history of the Metis. For the Metis, the establishment date of rights will thus be the moment when the Europeans actually established their political and legal domination in a given area.

The Powley act answers several, but not all questions relating to the ancestral rights of the Metis. For example, the Court refused to settle the debate of the collective identity of the Metis of Sault Ste-Marie, to say if they form a community or a people. The use of the words and expressions, Metis, metis people or metis community will certainly lead to debates and litigations.

Taking into account recent jurisprudence regarding the duty of consultation, the Powley act should encourage the governments and industries to evaluate their pratices relating to the consultation of metis communities. By combining Powley and the decision in Paul, the commissions and courts must prepare to be seized by cases relating to the aboriginal rights of the Metis.

Reference : Janet L. Hutchison
Chamberlain Hutchison, Barristers & Solicitors

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