Powley Case

­­­­­R. v. Powley [2003]

R. v. Powley was the first major Aboriginal rights case concerning Métis peoples. The Powley decision resulted in “the Powley Test,” which laid out a set of criteria to not only define what might constitute a Métis right, but also who is entitled to those rights.  Although the Powley decision defined Métis rights as they relate to hunting, many legal experts and Métis leaders view the Powley case as potentially instrumental in the future of recognizing Métis rights.

History of the Powley Case

In 1993, Steve and Roddy Powley shot and killed a moose near Sault Ste. Marie, Ontario. They did not hold a license, and tagged the moose with a handwritten tag claiming they were harvesting their meat for winter.1  The pair were subsequently charged with unlawfully hunting moose and possessing game hunted in breach of the Game and Fish Act. The Powleys pled not guilty, asserting that, as Métis, they had a right to hunt for food under Section 35 of the 1982 Constitution. Section 35 states that Aboriginal rights, including Métis rights, are constitutionally protected, yet does not specifically define these rights, leaving that up to the courts. Because the Métis right to hunt had not been established by the courts, the Métis Nation of Ontario recognized this as a test case for Métis rights, and provided financial support for the trial.

In 1998, the Powleys were acquitted after the trial judge ruled that their right to hunt was protected under Section 35. The Crown, however, appealed this ruling. Its appeal was overruled in the Ontario Superior Court of Justice, which reaffirmed the original ruling. The Crown then appealed this loss, but the Ontario Court of Appeal upheld the previous two rulings. Finally, the Crown appealed to the Supreme Court of Canada and again, the court ruled unanimously that as Métis people and members of a Métis community, the Powleys' right to hunt was protected by Section 35. The Métis right to hunt was only upheld in the Powleys’ community of Sault Ste Marie and neighbouring areas, and does not apply to other Métis communities.   However, most legal analysts believe that many other Métis communities meet the Powley test and will also have hunting rights.  They also believe that the Powley case would apply to fishing and other harvesting rights.

A Note on the Historical Time Frame of Métis Rights

The courts set out that the historical time-frame of the practice in question must be considered when applying the Powley test.

The historic time frame qualifier needed a new definition that differed from the “pre-contact” conditions set for Indian rights in Van der Peet or Sparrow. As Métis peoples are a result of that European contact, it would be impossible to locate a Métis right prior to contact as is required in the Van der Peet test. Therefore, the courts decided that the historical time frame of a right must be after European contact, but before the Crown had effective control over the community in question. For example, while the Crown may have laid claim to Rupert’s Land and beyond, many Métis populations in the west did not experience any on-the-ground evidence of this authority for generations and continued to function as independent, self-governing societies.

The Powley Test

The Powley case outlined a set of criteria known today as the “Powley test.” This test is used to define Métis rights in the same way that the Van der Peet test is employed in defining Aboriginal (Indian) rights. 

Once a right is identified, The Powley test is a process that can be used to assess whether is the claimants are entitled to exercise Métis rights. The Powley test includes ten components which determine:

1. The characterization of the right claimed (eg: was it hunting for food?),

2. Whether the claimant is a member of a contemporary Métis community,

3. Identification of the historic Métis community ,

4. Identification of the contemporary Métis community ,

5. The historical time-frame of the practice,

6. Whether the practice is integral to the culture of the claimant,

7. Whether the proposed practice is continued by the Métis community,

8. Whether the right was extinguished,

9. Whether the right was infringed upon, and, finally,

10. If the right was infringed, can that infringement can be justified.

The Future Implications of Powley

Although Powley was a hunting case, like Sparrow, legal experts and Métis historians believe it has the potential to expand into an even bigger rights discourse— for example, the Métis right to self-government and self-determination. It is also significant in that it finally establishes who can legally qualify for Métis rights. Although the Powley test can be problematic, like any sort of identity criteria, it has shaped recent discourse on Métis issues and has expanded popular thought about Métis from being limited to Red River Métis to understanding that Métis communities exist elsewhere—the Powleys being from Sault Ste Marie, Ontario.