Tansi Nîtôtemtik,
This week we have been exploring Métis identity. Today, we will look at the legal rights and challenges faced by Métis people.
R v Powley- A Landmark Case for Métis Rights
In 2003, the Supreme Court of Canada outlined a test that the courts use to define Métis rights and who is entitled to those rights. [1] In this case, Steve and Roddy Powley, two men from the Sault Ste. Marie Métis community, were charged after killing a moose and tagging it with a note that read “harvesting my meat for winter”. [2] They were charged with hunting without a license and unlawful possession of moose contrary to Ontario’s Game and Fish Act. The Powleys plead not guilty, and asserted that they had an Aboriginal right to hunt for food under section 35 of the Constitution Act 1982:
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 people of Canada.
The question before the court was whether Métis people “enjoy a constitutionally protected right to hunt for food under s. 35 of the Constitution Act, 1982.” [3] The Court ruled unanimously that the Powleys’ right to hunt was protected by section 35. [4] The Court laid out a ten-part test for determining Métis rights, and distinguished Métis rights from Aboriginal rights.
Indigenous Foundations at UBC summarized the test, which looks at the following factors:
1. The characterization of the right claimed (eg: was it hunting for food?), 2. Whether the claimant is a member of a contemporary Métis community, 3. Identification of the historic Métis community, 4. Identification of the contemporary Métis community, 5. The historical time-frame of the practice, 6. Whether the practice is integral to the culture of the claimant, 7. Whether the proposed practice is continued by the Métis community, 8. Whether the right was extinguished, 9. Whether the right was infringed upon, and, finally, 10. If the right was infringed, can that infringement can be justified. [5]
This was a landmark case for determining the basis on which Métis rights are recognized, and who legally qualifies for Métis rights.
Modern Application
Earlier this year, the Saskatchewan Court of Appeal heard a Métis rights case. In R v Boyer, three Métis men were charged with unlawfully hunting or fishing for food. [6] The men belonged to the Métis community of Northwest Saskatchewan, and claimed an s. 35 Aboriginal right to hunt.
The issue before the court was whether Aboriginal rights could be claimed on a large geographical or province-wide basis, due to the migratory lifestyle of the Métis community of Northwest Saskatchewan. [7]
In the lower court, the trial judge found that the Powley test could not be applied, because the right was being asserted over a large geographical or province-wide basis. [8] The lower court convicted two of the three men for hunting in an area not recognized as part of the Métis community of Northwest Saskatchewan as per a 2005 case, R v Laviolette. [9]
The Court of Appeal found that the Powley test did not exclude the possibility that nomadic Métis and Indigenous groups could assert s. 35 rights over broad geographic areas. [10] However, the Court of Appeal did not decide whether the men should be acquitted of charges, and sent the case back for retrial. At this time, the case has not been heard for a retrial.
R v Boyer is an important case in the evolution of Métis legal challenges for rights. It demonstrates a judicial commitment to reconciliation, understanding that the legal interpretation of Indigenous and Métis rights are not frozen in time, and that the distinct characteristics of different Indigenous communities must be considered when determining rights under s. 35.
Until next time,
Team ReconciliACTION YEG
[1] Indigenous Foundations, "Powley Case", The University of British Columbia (last visited 30 November 2022), online: <https://indigenousfoundations.arts.ubc.ca/powley_case/>.
[2] Alberta Metis, "The Powley Case", Alberta Metis (last visited 30 November 2022), online: < https://albertametis.com/metis-rights/the-powley-story/>.
[3] R v Powley, 2003 SCC 43 at para 1.
[4] Supra note 1.
[5] Ibid.
[6] R v Boyer, 2022 SKCA 62 at para 2.
[7] Bernise Carolino, "Saskatchewan Court of Appeal orders new trial for Métis charged with illegal hunting", Canadian Lawyer (7 June 2022), online: <https://www.canadianlawyermag.com/practice-areas/esg/saskatchewan-court-of-appeal-orders-new-trial-for-metis-charged-with-illegal-hunting/367260>.
[8] Supra note 6 at para 5.
[9] Supra note 6 at para 8.
[10] Supra note 6 at para 12.