The Powley decision
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About the Powley decision
In 1993, Steve and Roddy Powley, two Métis men, were charged with hunting contrary to Ontario law after killing a moose. In September 2003, the Supreme Court of Canada's decision in R. v. Powley 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 Supreme Court's Powley decision marked the first major Métis rights case, and was the product of decades of mobilization by Métis. It confirmed both the existence of Métis section 35 rights and Métis' full status as distinctive Aboriginal rights-bearing peoples. The decision also clarified that the term "Métis" used 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 First Nation or Inuit and European ancestors.
Ultimately, the Powley decision opened the conversation 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 First Nations and Inuit peoples.
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 across Canada, and set parameters for who might exercise these rights.
Prior to the Powley decision, the only way for an Indigenous group to determine section 35 rights was through a legal test specifically designed for First Nations, which focused on identifying practices, customs, or traditions that existed before European contact. Métis communities would fail this First-Nations specific test, as they formed after European contact.
The Supreme Court in R. v. Powley created the Powley test to account for the unique nature of Métis rights. The Powley test focuses on identifying practices, customs and traditions that are integral to a Métis community and its relationship to the land and existed before the community "came under the effective control of European laws and customs".
In order for a Métis group to determine a right pursuant to section 35 using the Powley test, they must:
- define the right being claimed (the distinctive practice, custom or tradition that gives rise to the right)
- identify a historic rights-bearing Métis collective which practiced the right before effective control
- demonstrate that the contemporary Métis community continues to perpetuate the historic rights-bearing community's distinctive practices
- demonstrate the Métis individual coming before the court is in fact part of the contemporary Métis community
To support the verification of membership in the contemporary rights-bearing community, an individual must:
- self-identify as a member of the contemporary Métis community
- have evidence of an ancestral connection to the historic Métis community, by birth, adoption, or otherwise
- be accepted by the contemporary Métis community
For a detailed explanation of the test's criteria, consult this Overview of Canadian Law relating to Métis.
Progress since the Powley decision
The Powley decision marked a new day for the Métis Nation in Canada. Since then, progress has been made to promote Métis rights. In February 2023, the Minister of Crown-Indigenous Relations and the Métis Nation of Alberta (now known as the Otipemisiwak Métis Government), the Métis Nation of Ontario and the Métis Nation-Saskatchewan signed individual Métis Self-Government Recognition and Implementation Agreements. On November 30, 2024, the Red River Métis Self-Government Recognition And Implementation Treaty was signed by the Manotiba Métis Federation and Canada. These agreements recognize the Métis right to self-government and the jurisdiction of these Métis Nation partners over their own core governance. The Powley decision set the stage for a series of achievements for Métis people, not just in Ontario but across the Métis Nation Homeland, including Bill C-53.
September 19, 2023 marked the 20th anniversary of the Powley decision. The Powleys were vindicated, and the case was a landmark decision for Métis rights, and has been the benchmark for the recognition and protection of Métis rights in Canada.
The Government of Canada continues to work in partnership with Métis partners to advance shared priorities, including:
- Métis rights and self-determination
- promoting reconciliation
- closing socio-economic gaps
- renewing the relationship as aligned with United Nations Declaration on the Rights of Indigenous Peoples