Re. v. Powley:
Supreme Court’s first s. 35 Métis decision

By Greg J. Edwards

Two questions kept popping up in the back of my mind while I read the Supreme Court of Canada’s Powley decision:

One: How did Métis make it into section 35.2 of the constitution?

Two: Steve and Roddy Powley of the Sault Ste. Marie had won their moose-hunting case at every level of Ontario’s courts, affirming that, as Métis, they have the Aboriginal right to hunt, fish and gather any species for food within their territory, so why did Ontario appeal their case yet again to the Supreme Court of Canada?

U of Saskatchewan law professor Signa Daum Shanks didn’t hesitate when she answered the question 1: “Harry Daniels had a lot to do with it.”

Harry Daniels (1940–2004) actor, writer, politician and commissioner got the Métis included in the constitution. Daniels was born in Regina Beach, Saskatchewan.

“It’s not surprising” Daum Shanks continued, “that it came from a leader who was from Saskatchewan.” Saskatchewan Métis had had a lot of experience in politics. “He was very much on the backs of western Canadian politicians about the matter.”

She cited one of Daniel’s famous bits of oratory: “We know who we are. We know the generations of discrimination we have endured. We don’t need anybody to tell us who we are. If you identify as Ukrainian or Italian, we don’t question who your are or tell you who you are. We self-identify just like everybody else in this country.”

And there’s the video of Daniels confronting Prime Minister Trudeau during the constitutional talks of the ’70s and ’80s: “What we’re talking about here is the equality of a people. And to use your phrase, we are talking about a ‘just society.’ It can’t be ‘just’ for some Aboriginal people and not for others.”

And so, Sec. 35 (2) of our constitution states: “In this Act, ‘Aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.”

But of course Daniels had stood on the shoulders of the Métis who’d stood up before him, such as the Sault Ste Marie “half-breeds” who, the Supreme Court noted, were “explicitly excluded” “as a group” from the “Robinson-Huron Treaty of 1850.”

Nor did professor Daum Shanks hesitate when she answered question 2: Premier Mike Harris of Ontario forced the issue to the Supreme Court in Ottawa.

The Court of Appeal for Ontario released it decision Feb. 23 2001. The next day, Premier Harris was telling the press: “I’m sure the lawyers will be reviewing… whether there are other avenues of appeal.”

“We’ll continue to push and challenge any groups that threaten proper planning and management of our wildlife here in the province of Ontario.”

The Powleys had traced their roots back to the Lesages, an old Métis family, so the Crown conceded that they were of the historic Sault Ste. Marie Métis community; consequently, the Ontario courts did not address the issue of who is a Métis and who isn’t.

In fact, the Ontario courts made this issue bigger than it had ever been; the Court of Appeal noted that the Superior Court “varied the trial judge’s definition of Métis, removing the requirement that a person be of “genetic” Aboriginal ancestry on the basis that such a requirement imposes an onerous genealogical research burden, and because a community is defined by more than a person’s blood-ties.”

The Superior Court had “provided a more relaxed test for Métis identity: A Métis is a person who, (a) has some ancestral family connection (not necessarily genetic); (b) identifies himself or herself as Métis; and (c) is accepted by the Métis community or a locally-organized community branch, chapter or council of a Métis association…

And the Court of Appeal saw no reason to “interfere with the conclusion of the trial judge and the Superior Court judge” on this issue. Resolving the question of who is Metis and who isn’t can wait for a more “germane” case to address it.

However, the Sault Star addressed it four days later in its Feb. 27 editorial: “Canadians have a tradition of resisting race-based delineation of rights an responsibilities . . . so simply having some Aboriginal ancestry can’t be the deciding factor for Métis status. Indeed, Steve Powley was shown to have 1-64th Native forebears and his son only 1-128th but were identified as members of the Métis community.

“The courts -- or better yet, legislators -- have to set down just who can be classified Métis. If the judgment is left to the Métis community itself, how is that community defined? Who speaks for it and makes the final determination if there is disagreement?

“Say Métis leaders reject someone’s assertion that he is Métis. To where can he appeal?”

But the Supreme Court of Canada declined to do Sault Star’s bidding on this matter, preferring instead that it be resolved in discussion among the parties involved and through resolution of future court cases. What’s more, it stated that it requires no “blood quantum (quantity)” of those claiming Métis status.

The Supreme Court said it requires no “blood quantum” of Métis claimants, but in a way it does through its insistence that “only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Métis Aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community . . . no matter how a contemporary community defines membership.”

What’s more, in Powley, it reiterated that “the term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to . . . peoples who . . . developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears” between first contact with Europeans and the point at which Europeans established formal control through treaties, courts, land registries and other institutions.

Louis Riel descendent and lawyer Jean Teillet pointed out that those claiming formal Métis status have to identify themselves as Métis, not Indian. They have the choice. They “have to choose to do it.” Second, they “have to have Métis ancestry, and that’s not just an ever so great grand-mama from the 1600s”; “it means somebody, an ancestor, from the Métis Nation; and, third, there’s community acceptance, because it’s not enough for them to declare themselves Métis, the community has to agree . . . so it’s, basically, a three-part test.”

Ms. Teillet said the discussions regarding Métis identity are still going on. It hasn’t been decided yet whether adoptees will be eligible for Métis status.

And professor Daum Shanks doesn’t know whether DNA tests will be used. However Daum Shanks said that the Manitoba Métis Federation’s land claim case coming up before the Supreme Court of Canada in December “has some qualities which might trigger the SCC to have some reflections on the matter. So far they’ve been able to defer it.”

The Métis Nation organizations speak of the Métis as a single nation, but the Supreme Court noted that it’s possible to speak of many Métis communities. As far as the constitution is concerned, Métis emerged as distinct Aboriginal people(s) during the contact-control period(s). The dates of first contact with Europeans and the dates when Europeans established formal control vary across Canada.

Stipulating that Métis emerged as Aboriginal people(s) between the time of first contact with Europeans and the moment of formal control by Europeans is a modification of the Van der Peet decision on Aboriginal rights.

“A circumstance being presented as an Aboriginal right,” Daum Shanks told Native Journal in 2009, “has to have existed prior to contact with Europeans; it has to have been integral to the culture; and it has to have been practised continuously since contact.” (However, there’s leeway to allow for pauses in these practices caused by the Crown.)

The SCC anticipated the Métis issue in Van der Peet. It realized that the pre-contact condition for Aboriginal rights “might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition” developed after contact with Europeans.

“The inclusion” the Court wrote in Powley, “of the Métis in s. 35 represents Canada’s commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other Aboriginal communities.”

Jean Teillet puts it a little more clearly in Métis Law in Canada 2011 wherein she points out that Métis are considered Aboriginals because their distinct culture(s) emerged before Canada became a nation, and because “they were not the culture-bearers of European civilization. . . . Their culture was a unique response to the land.”

“The historical record” the Court wrote, “fully supports the trial judge’s finding that the period just prior to 1850 is the appropriate date for finding effective European control in the Sault Ste. Marie area. The evidence also supports his finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850. This practice has been continuous to the present.”

Premier Harris and others voiced real or imagined concerns about wildlife management; the Court found no justification for this argument; what’s more, it replied that that even if a species were at risk, “the Métis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria set out in R. v. Sparrow.”

The Métis hunting rights must track those of the Ojibway “in the immediate future”; “in the longer term, . . . negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt, a right that we recognize as part of the special Aboriginal relationship to the land.”

The right to hunt, fish and gather food includes all species.

Here are some of the major points the Court made in Powley:

It may be difficult to identify Métis, but this difficulty “must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.”

Ontario’s refusal to recognize the Métis’ “right to hunt for food, or any ‘special access rights to natural resources’ infringed “their Aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Métis community.”

Ontario was wrong to argue that the Robinson-Huron Treaty of 1850 extinguished Métis rights: why? Because the Métis were “explicitly excluded” from it.

The Powleys’ claimed right to hunt for food is a “practice that has been continuous to the present.”

“Hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850.”

Métis relied upon subsistence hunting and fishing “rather than on European imports.”

Professor Daum Shanks said that other provinces, especially on the Prairies, have resisted the application of the Powley decision: “the Crown can’t quite say, We disagree with Powley; we’re not going to follow Powley, because it’s a SCC case; but what Crown can do and it does try to do—with some success—is say, That Powley decision was very important for where it happened; here, however, we’re talking about Treaty 8 or Treaty 10; and, so, when Powley first came out, it seemed like a very, very terrific decision—and it is a terrific decision—but what has evolved over the past near decade now is that the Crown has become more and more resolute to find ways to see ways it can stop its application in other parts of the country. . . . They will try to stop its application by distinguishing the facts of their cases as different enough from Powley so that Courts cannot read the Powley decision in the same way.”

Dropping charges is another tactic Daum Shanks has observed Crown using out of fear that pushing on with charges against those engaged in traditional Métis practices might result in a defeat that re-writes Powley in stone, and in their jurisdiction.

Daum Shanks says she “is of two minds” about charges being dropped or not laid. The people involved are let off the hook, but they might be a family whose history and facts “are even more beautiful than they were in the Powleys’ case.”

Crown worries about “reasonable doubt”, the “balance of probabilities”, and “how the appearance of their case will be taken.”