R. v. Powley

Supreme Court of Canada – [2003] 2 S.C.R. 207

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Ontario Aboriginal rightsMétis

Issue

Does Ontario’s Game and Fish Act contravene the Métis’ Aboriginal right protected under section 35 (1) of the Constitution Act, 1982?

Decision

Yes, because members of the Sault Sainte Marie community are Métis under the Constitution, and they have an aboriginal right to hunt for food (unanimous decision).

Parties

Between: the Crown of Ontario

And: Steve Powley and Roddy Charles Powley

Interveners: Canada, Quebec, New Brunswick, Manitoba, British Columbia, Saskatchewan, Alberta, Newfoundland and Labrador, Labrador Métis Nation, Congress of Aboriginal Peoples, Métis National Council (“MNC”), Métis Nation of Ontario (“MNO”), B.C. Fisheries Survival Coalition, Aboriginal Legal Services of Toronto Inc. (“ALST”), Ontario Métis and Aboriginal Association (“OMAA”), Ontario Federation of Anglers and Hunters (“OFAH”), Métis Chief Roy E. J. DeLaRonde, on behalf of the Red Sky Métis Independent Nation, and North Slave Métis Alliance

Facts

In 1993, brothers Steve and Roddy Powley, members of the Métis Nation, went hunting and killed a moose near Sault Sainte Marie (where their community is established) in order to feed themselves during the winter. They hunted without a valid permit from the Ministry of Natural Resources.

A week later, they were visited by agents of the Ministry of Natural Resources and admitted to the killing of the moose. They were charged with illegal hunting in contravention of Ontario’s Game and Fish Act.

Arguments

The Powleys: Ontario’s legislation infringe on their Aboriginal right to hunt for food, which they hold as Métis descendents of the Métis established in Sault Sainte Marie.

The Crown: The Métis of Sault Sainte Marie are not encompassed in section 35 of the Constitution Act, 1982 because as Métis, they do not form a group with “a distinctive collective identity, living together in the same geographical area and sharing a common way of life.” In addition, in accordance with the Van der Peet test, the Powleys have to prove that the practice of hunting for food had its origins in pre-contact activities.

Decision of the lower courts

Ontario Court, Provincial Division (1999): As members of the Métis community, the Powleys have an Aboriginal right to hunt for food under section 35 (1) of the Constitution Act, 1982.

Ontario Superior Court of Justice (2000): The acquittals are upheld.

Ontario Court of Appeal (2001): The acquittals are upheld.

Reasons for Judgement

Jury

The Court. McLachlin, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps

Reason

The “Métis” as intended in section 35 of the Constitution Act, 1982 do not include every person of mixed Indian and European blood. The Métis are a distinct people, independent of the Europeans and other Aboriginal peoples, born out of the contact between the above two peoples. Every Métis culture is different and so are their traditions. To be considered as Métis, the community must (1) have a distinctive identity; (2) its members must live in the same region as their Métis ancestors and (3) have a similar way of life. This describes the Métis community in and around Sault Sainte Marie.

The Van der Peet test must be applied to determine which rights are protected by section 35 of the Constitution, but it has to be adjusted to consider the origins and evolution of the Métis. Instead of being defined as customs, practices and traditions existing prior to European contact, Métis’ rights are assessed at the time of the effective European control over their traditional territory. If the Powleys had to prove that the practice of hunting for food had its origins in pre-contact activities, it would lead to the deprivation of their rights as Métis people as provided by section 35 (1) since, by definition, the Métis’ existence began after the first contact with Europeans.

Membership in the community is a key factor in assessing the Powleys’ rights. This evaluation requires a case-by-case analysis since membership often arises out of facts. Three factors were weighed by the Court to establish membership: self-identification with the historic community, being a descendent of this historic community, and acceptance by the current community. In this case, the Supreme Court agreed with the trial judge that the Powleys were part of the Métis community of Sault Sainte Marie.

The evidence presented at trial showed that hunting for food was integral to the culture of the Métis of Sault Sainte Marie in the period just prior to 1850 and still is to this day. The moose was killed in their traditional territory. Therefore, the Powleys had exercised their Aboriginal right to hunt for food. The acquittal was upheld.

Impact

In response to the Powley decision, the Canadian government has had debates and discussions with delegates from the provincial and territorial levels as well as with Métis representatives so as to set up a successful way to assist the Métis in order to ensure a safe and organized harvest. The Federal Interlocutor for Métis and Non-Status Indians, a branch of Indian and Northern Affairs Canada (INAC) addressing the economic, social and political needs of Métis, non-status Indians and urban Aboriginal people, maintained that a few salient concerns must be addressed prior to the introduction of any policy or initiative. Among the issues to be dealt with is the absence of a specific and consistent means of identifying Métis harvesters in Canada and the establishment of viable and safe hunting practices (INAC, 2009).

In 2004, $20.5 million was assigned by the federal government to implement the Powley Decision (INAC, 2008). Around half of the amount was to be employed for historical and sociological research to support discussions between federal, provincial, territorial and Métis officials. The rest of the money was allocated to Métis organizations to facilitate their preparation and participation in discussions concerning harvesting and the identification of Métis harvesters (Audit and Evaluation Sector, 2008: 13).

The Powley Initiative

The Powley Initiative helps the Métis manage their rights, and the federal government in the long term management of issues concerning this aboriginal group. This is done according to a pangovernmental approach, meaning that every ministry involved in relations with the Métis is involved, that the Congress of Aboriginal Peoples and the Métis National Council are supported in the elaboration of membership criteria, and that provincial governments’ help is asked for in order to establish a comprehensive approach to the exercise of aboriginal rights (Audit and Evaluation Sector, 2008: 13).

In 2008, the budget for the Powley Initiative was $12.1 million dollars, and $7.2 million was also given to 11 Métis organizations between 2004 and 2008 (Id.: 2). When evaluating the Powley Initiative, INAC found that it had been successful in creating a whole-of-government approach regarding Métis rights management. There was also progress in research done by the Métis themselves, especially in the development of a registry system for Métis’ members and harvesters in their communities (Id.: 13). But the positions of the provinces still vary. Newfoundland and Labrador, Quebec, British Columbia and New Brunswick do not recognize Métis communities, as defined in Powley, within their borders. As for Ontario and the Prairie Provinces, there are still uncertainties as to the definition and scope of Métis rights (Id.: 19).

In Ontario, an Interim Harvesting Agreement between the Métis Nation of Ontario (MNO) and the Ministry of Natural Resources (MNR) was signed in 2004, which recognized the harvesting regime put in place by the MNO. In short, the MNO issues Harvester’s Certificates which permit their holders to harvest food within the Métis communities’ traditional territories. A maximum of 1,250 permits will be issued and there will be charges for the holder only if he or she violates environmental conservation or safety standards (MNO, 2009). At first, the MNR wanted the Agreement to be applied only to Métis living north and west of Sudbury (R. v. Laurin, et al., para. 13). In a case pitting three Métis charged with fishing violations against the Crown because they had harvested south of Sudbury, the Ontario Superior Court sided with the MNO and the Interim Harvesting Agreement was extended to all of Ontario’s territory (Audit and Evaluation Sector, 2008: 19).

In British Columbia, there is no official provincial recognition of a Métis presence within its boundaries. This position was confirmed by the Superior Court of British Columbia which maintained the criminal charges for illegal hunting in two cases involving self-identified Métis offenders (Id.: 20). In 2002, it concluded that there was no evidence of a Métis historic community in Kootenay, situated in the Canadian Rockies (R. v. Howse, para. 34). It came to the same conclusion in 2006 in a case concerning Aboriginal people living in Kamloops since the historic Métis who settled there did so to work in the fur trade with the Hudson Bay Company and left after this economic activity was banished (R. v. Willison, para. 43-44) and there was no contemporary counterpart (Id.: para. 48).

In Alberta, an Interim Métis Harvesting Agreement (IMHA) was signed between the Province and the Métis Nation of Alberta (MNA) in 2004, under which Métis with a licence could hunt, fish or trap for food on their traditional lands while respecting conservation and safety rules and regulations. In 2007, Alberta’s Court of Queen’s Bench stated in the Kelley case that the requirement of a licence contained in the IMHA contravened section 35 of the Constitution Act, 1982 (R. v. Kelley). Negotiations turned sour after the Court of Appeal’s decision. Public opinion had been against the IMHA ever since it was announced: a number of articles in local newspapers (Edmonton Journal, Calgary Herald and Medicine Hat News) suggested that the Agreement was too lenient in its definition of “Métis.” The IMHA was replaced on July 1, 2007 with a unilateral policy restricting Métis harvesting rights to seventeen communities and excluding southern Alberta as a hunting ground (MNA, 2007). To protest the new policy, the MNA held illegal hunting parties outside the recognized zone in order to build a test case against the Alberta government (Kermoal, 2009).

In Manitoba, the Manitoba Métis Federation (MMF) was responsible for the Harvesting Initiative in that province, which was intended to apply and look after the harvesting rights of the Métis community. Before Powley, the MMF had conducted broad consultations in 2001 and 2002 and had been able to identify objectives to lead the implementation of Métis harvesting rights in the province, such as resource management for future generations, the use of traditional practices and the establishment of a partnership with the provincial government regarding natural resource management and development (MMF, 2003: 7-8). The Manitoba government’s position was that the Métis’ harvesting rights were limited to a small part of what the MMF claimed is their traditional territory and that most of these rights have already been extinguished (Audit and Evaluation Sector, 2008: 19). The dispute was settled in part by the Goodon case in 2008, where the provincial court found that there was in southwestern Manitoba a historic Métis community and a contemporary one which continues its traditional practices and customs, including hunting and harvesting for food (R. v. Goodon, para. 48, 58 and 70).

In Saskatchewan, the provincial government set forth the policy that Métis harvesting rights can only be exercised in the Northern Administration District, thus opposing the Métis Nation of Saskatchewan (MNS)’s view (Audit and Evaluation Sector, 2008: 20). The policy itself was rejected by the Laviolette decision which concerned a self-identified Métis who was caught ice fishing out of season and outside the allowed perimeter. It found that, as a direct descendent of a historic Métis community living in a contemporary Métis community, the accused had the right to fish for food, which was a significant activity for its members both now and in the past. The provincial district cannot substitute for a community, according to Powley (R. v. Laviolette). The Bellhumeur decision in 2007 reaffirmed the principles highlighted in Powley and Laviolette and asked the province to change its perception of a community in order to understand the concept in a broader sense (R. v. Belhumeur).