What is the Powley case?

On September 19, 2003, with the release of the Powley case, the Supreme Court of Canada affirmed what the Métis people having been saying for over twenty years. Namely, Métis people have rights that are recognized in and protected by Canada's Constitution.

Moreover, the Supreme Court asserted that s. 35 of the Constitution Act, 1982 is a "promise" to the Métis people and its central purpose is to recognize them, to value distinctive Métis culture, and to enhance their survival.

The Supreme Court did not define who are the Métis people in Canada. Instead, the Court set out who the "Métis" are for the purposes of s. 35. The Court said that the term "Métis" in s. 35 refers to distinctive Métis collectives who, in addition to their mixed ancestry, developed their own customs, way of life, and group identity-separate from their Indian, Inuit or European forebears.

Specifically, in the Powley case, the Court set out a "test" for establishing Métis harvesting rights protected by s. 35 of the Constitution Act, 1982. The Court applied this test to the Sault Ste Marie Métis community and to the Powleys and found that the Powleys were exercising the Sault Ste. Marie Métis community's constitutionally protected right to hunt. However, this does not mean that the case is limited in its application to only the Sault Ste Marie Métis community. The test applies across the Métis Nation Homeland.

The Powley case also set out criteria for who can exercise a Métis right to harvest. These include: (1) you self identify as Métis; (2) you are ancestrally connected to a historic Métis community; and (3) you have been accepted as a member of a modern Métis community which has evolved from a historic Métis community.

The Supreme Court also emphasized the urgent need to develop more systematic methods to identify Métis rights-holders. In answer to government claims about Métis identification problems, the Court said that this issue was not an insurmountable problem and that the difficulties must not be exaggerated in order to defeat Métis claims.

Finally, it is important to remember that the Powley case confirmed that Métis harvesting rights, like all Aboriginal rights, are collective rights. While Métis harvesters can exercise the collective's right as an individual, it is the collective that protects and holds the right for future generations. Therefore, Métis harvesters should be aware of and follow Métis-made laws and regulations that are in place across the Métis Nation Homeland.