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Section 35 of the Constitution Act, 1982, 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. Métis organizations and governments prepare, maintain and manage registries of Métis individuals claiming Section 35 rights under the Constitution Act. The Government of Canada is not involved in this process.
If you believe you are Métis, please discuss your situation with your provincial Métis representative organization.
Métis Representative Organizations
The Daniels decision
On April 14, 2016, the Supreme Court declared that Métis and non-Status Indians are "Indians" for the purpose of federal Parliament's law-making jurisdiction under subsection 91(24) of the Constitution Act, 1867.
The Powley decision
In 1993, Steve and Roddy Powley, two Métis men, were charged with hunting contrary to Ontario law after killing a moose. The case was appealed up to the Supreme Court of Canada, where it was argued that Section 35 of the Constitution Act, 1982 protects the right of Métis to hunt for food. In September 2003, the Supreme Court of Canada's decision in R. v. Powley  2 S.C.R. ruled in favour of the Powleys, affirming the Métis right to hunt for food as recognized under Section 35 of the Constitution Act, 1982.
The Powley decision is significant because it was the first instance in which the Supreme Court of Canada affirmed the existence of Métis rights, and laid out a process to define the legal Métis identity. The case influenced and allowed for discourse around rights relating to Métis self-government and self-determination. It is important to note that the Powley decision does not affect current federal programs and services provided to status Indians.
The Powley Test
Although the Powley decision deals specifically with the Métis community in and around Sault Ste. Marie, Ontario, it established a legal test to determine the Aboriginal rights of other Métis groups. In Powley, the Supreme Court of Canada stated the term Métis in Section 35 does not include all individuals with mixed Indigenous and European heritage. Instead, it refers to a distinct group of peoples who, in addition to their mixed ancestry, developed their own customs and group identity separate from their Indian or Inuit and European ancestors. This led to the creation of the Powley Test, a process used to determine whether an individual can be considered "Métis" for the purpose of asserting Section 35 rights.
To pass the Powley test, an individual must:
- identify as a Métis person
- be an accepted member of a present-day Métis community
- have ties to a historic Métis community
For a detailed explanation of the test's criteria, visit this Overview of Canadian Law relating to Métis.
The Powley decision and Métis hunting rights
Although the Powley decision established Métis Section 35 rights, they are not absolute. The government can still limit these hunting rights due to concerns for environmental conservation or public health. In addition, the Powley decision discusses the right to eat harvested food, but not to sell harvested goods.
Métis Nation – Saskatchewan, Métis Nation Alberta, Manitoba Metis Federation, Métis Nation British Columbia and Métis Nation Ontario all have information regarding the standards for Métis harvesting rights and practices. in their respective provinces. Licensing and other questions about hunting should be discussed with the appropriate government agency.
Canada's response to the Powley decision
The Government of Canada remains committed to facilitating responsible hunting and ensuring public safety. We have held discussions with provincial, territorial and Métis representatives to establish ways to accommodate Métis harvesters in a safe, orderly and responsible manner.
Since 2004, Canada has provided funding to assist Métis governments in developing and maintaining self-managed, objectively verifiable Métis membership systems consistent with the Powleytest since 2004, as part of the Proactive Reconciliation and Management of Métis Aboriginal Rights Program. Métis Nation Ontario, Manitoba Metis Federation, Métis Nation – Saskatchewan, Métis Nation Alberta and Métis Nation British Columbia are responsible for their respective Powley-compliant provincial Métis registries.
The Powley decision affirmed the existence of Métis rights in Canada, and it has since motivated the work of the Government of Canada and the Métis Nation towards self-determination and self-governance. Since 2003, funding has been made available to Métis organizations to support the advancement of governance structures and financial accountability with the goal of advancing reconciliation.
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