Métis Rights Management
The Powley Decision
The Supreme Court of Canada decision in R. v. Powley  2 S.C.R., affirmed Métis have an Aboriginal right to hunt for food as recognized under section 35 of the Constitution Act, 1982. This case was important for Métis people in Canada as it was the first instance in which the highest court in the land affirmed the existence of Métis Rights.
The Powley decision deals only with the Métis community in and around Sault Ste. Marie, Ontario although it does establish a legal test to determine the Aboriginal rights of other Métis groups. To establish their rights, Métis individuals or groups must demonstrate they meet the legal tests set out in R. v. Powley.
The Office of the Federal Interlocutor for Métis and Non-Status Indians (OFI), led aPost-Powley Response Working Group with representation from several interested federal departments. A major early task of this working group was to reach an understanding of the implications of the Powley decision for the federal government. In order to assess the ramifications of the Supreme Court of Canada decision, it was necessary to start a process of inquiry to clarify as to whom the Powley decision would apply.
The Supreme Court, in the Powley case, outlined a basic legal test that an individual would need to pass in order to be considered “Métis” for the purposes of asserting Aboriginal rights under s. 35 Constitution Act. The major criteria – or “Powley test” – were three-fold; the individual must:
- identify as a Métis person;
- be a member of a present-day Métis community; and,
- have ties to a historic Métis community.
Further to the third criterion, to be considered a ‘historic rights bearing community' it must be proven that a mixed-ancestry group of Indian-European or Inuit-European people:
- formed a 'distinctive' collective social identity;
- lived together in the same geographic area; and,
- shared a common way of life.
In Powley, the Supreme Court of Canada stated the term Métis in s. 35 does not encompass all individuals with mixed Indian and European heritage. Rather it refers to a distinctive peoples who, in addition to their mixed ancestry, developed their own customers and recognizable group identity separate from their Indian or Inuit and European forbearers. The Métis communities claiming Aboriginal rights must have emerged in an area prior to the Crown effecting control over a non-colonized region.
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