The Supreme Court of Canada's Powley Decision
Frequently Asked Questions

What is the Powley case?

Two Métis men, Steve and Roddy Powley killed a moose in 1993 and were charged with contravening Ontario hunting law. The men argued that section 35 of the Constitution Act, 1982 protects the right of Métis to hunt for food. The case was appealed up to the Supreme Court of Canada, which ruled in favour of the Powleys in September 2003. In its decision, the Supreme Court found that the Métis community in and around Sault Ste. Marie, Ontario has an Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt for food. The Supreme Court's ruling (called Her Majesty The Queen v. Powley) is accessible online at www.lexum.umontreal.ca/csc-scc/en/rec/index.html

Why is the Powley decision important?

The decision marks the first time the Supreme Court has addressed and affirmed whether section 35 protects the Aboriginal rights of Métis people to hunt for food; previous cases had centred on Indian and Inuit peoples.

What is section 35 of the Constitution Act, 1982?

Section 35 recognizes and affirms the existing Aboriginal and treaty rights of the Indian, Inuit and Métis peoples of Canada. Supreme Court decisions in a series of cases have served to clarify these rights, and have established legal tests to determine the scope and content of Aboriginal rights, and which groups hold them.

How are governments affected by the Powley decision?

Most Crown lands and resources, along with the majority of relevant harvesting activities, fall under provincial and territorial jurisdiction. The Government of Canada continues to collaborate closely with provincial and territorial officials on all Aboriginal issues.

Does the Powley decision recognize harvesting rights for Métis throughout Canada?

No. The Powley decision deals only with the Métis community in and around Sault Ste. Marie, although it does establish a legal test to determine the Aboriginal rights of other Métis groups. To establish their Aboriginal rights, Métis individuals or groups must demonstrate that they meet the legal tests set out in the Powley decision.

Does the Powley decision include a legal definition of Métis?

No, although the Powley decision does provide guidance on who can claim Aboriginal rights under section 35. According to the decision, the term "Métis" refers to distinctive peoples of mixed ancestry who developed their own customs, practices, traditions and recognizable group identities separate from their Indian, Inuit and European ancestors. The term "Métis" does not refer to all individuals of mixed Aboriginal and European ancestry.

Métis Ancestry

What is the legal test established by the Supreme Court for proving a Métis community's Aboriginal right?

To qualify for Aboriginal rights under section 35, a Métis group must demonstrate:

• that a Métis community has existed continuously since Europeans established effective control of the area in which the community is located; and
  
• that the activity the community seeks to protect as an Aboriginal right has been and continues to be of central significance to the community.

What criteria must be met for an individual to prove they are a member of a Métis community and are able to exercise that community's Aboriginal right?

An individual must first demonstrate membership in a present-day Métis community that can trace its existence back to an historic Métis community with a distinctive culture.

To prove membership, an individual must:

• self-identify as Métis,
  
• have an ancestral connection to an historic Métis community, and
  
• be accepted as a member by this community.

The Supreme Court decision also stated that self-identification should not be of "recent vintage"-that is, made only to claim an Aboriginal right under s.35.

Did the Supreme Court define a Métis community?

No, although the Supreme Court did establish criteria to help identify which Métis communities can hold site-specific Aboriginal rights. To qualify, a community must have a distinctive collective identity, and its members must live in the same geographic area and share a common way of life. Research to assist with the identification of potential Métis rights-bearing communities is underway.

How do I get my name added to the list of Métis rights holders (how do I get my Métis status card)?

The Government of Canada neither maintains nor prepares lists of Métis individuals or claimants. If you believe that you are Métis, you should discuss this with your local or provincial Métis organization.

Effects of the Powley Decision

How does the Powley decision affect the Government of Canada's Aboriginal policies?

The Powley decision deals solely with Métis Aboriginal harvesting rights and does not affect current federal programs and services provided to status Indians. The Government of Canada is committed to implementing the Powley decision in good faith, while facilitating responsible hunting and helping to ensure public safety.

To clarify the long-term implications of the Supreme Court's decision, federal, provincial and territorial governments, along with Métis organizations and other stakeholders, are working toward a common understanding of the issues involved. Various consultations and initiatives are underway, including the Canada-Aboriginal Peoples Roundtable process.

How will issues of competing rights involving First Nations, Inuit and Métis be worked out?

Overlapping or competing rights among Aboriginal groups can be resolved only through negotiation. Government officials will continue to collaborate with First Nations, Inuit and Métis representatives as well as provinces on these and other issues.

How has the Government of Canada's responded to the Powley decision?

Since the Powley decision, Government of Canada officials have held discussions with provincial, territorial and Métis representatives to establish an effective way to accommodate Métis harvesters in a safe, orderly and responsible manner. Before any new policy or initiative can be introduced, however, a series of complex issues must be resolved. At present, for instance, there is no single, reliable and consistent method in place to identify Métis harvesters across the country.

What activities has the federal government undertaken in response to the Powley decision?

The Federal Interlocutor for Métis and Non-Status Indians leads the Government of Canada's response to the Powley decision. To ensure a comprehensive response, preliminary work includes:

• analysis of relevant policies and legislation;
  
• solicitation of input from stakeholders;
  
• identification of possible methods to identify Métis harvesters and implement interim harvesting arrangements; and
  
• provision of support to Métis organizations to facilitate their participation in ongoing discussions with federal, provincial and territorial officials.

The last two Federal Budgets in 2004 and 2005 included money for Powley-related activities. Where will this money go?

In April 2004, the Government of Canada allocated $20.5 million to ensure a comprehensive response to the Powley decision. Approximately half of this money will be used to conduct historical and sociological research, and to facilitate discussions among federal, provincial, territorial and Métis officials. The other half will go to Métis organizations to enable them to prepare for, and participate in, discussions about harvesting and the identification Métis harvesters.

In February 2005, a further $30 million was committed for an additional two years to allow work that is already underway to continue.

Does the Powley decision mean that Métis are free to hunt and fish without licences?

Not necessarily. These section 35 rights are not absolute. Governments can limit these rights (e.g., to respond to concerns regarding conservation, public safety and health). Specific questions about licensing should be directed to the appropriate government agency or ministry.

Does the Powley decision grant Métis the right to kill an animal and sell it commercially?

No. The Powley decision addressed only Métis harvesting for the purpose of food.