On the morning of October 22, 1993, Steve Powley and his son Roddy went hunting. At about 9 a.m., they shot and killed a bull moose near the Old Goulais Bay Road in Ontario. After shooting the moose Steve and Roddy Powley transported it to their residence in Sault Ste. Marie. Neither of them had a valid Card, a valid hunting license to hunt moose, nor a validation tag issued by the Minister of Natural Resources. Instead, Steve Powley affixed a handwritten tag to the ear of the moose. The tag indicated the date, time, and location of the kill, according to hunting regulations in Ontario. It stated that the animal was to provide meat for the winter. Steve Powley made the tag, and wrote down his Ontario Métis and Aboriginal Association membership number on the tag. Later the same day, two conservation officers arrived at the Powleys' residence and Steve and Roddy Powley told the officers they had shot the moose. One week later, the Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in breach of the Game and Fish Act, R.S.O. 1990, c. G-1. They pleaded not guilty.

This brief synopsis about the recent Supreme Court of Canada Powley Decision is intended to provide the general public with a general understanding about the meaning of the Powley Decision in the context of emerging legal interpretation of the Constitution Act, 1982, Section 35(1) Rights.

GENERAL OVERVIEW OF THE POWLEY CASE
R. v. Powley 2003 SCC 43

Steve Powley and his son Roddy Powley were members of the Métis Community near Sault Ste. Marie, Ontario. On October 22, 1993 they went hunting in that area, shot and killed a bull moose and took it to their residence. The Powleys did not have a hunting license and were charged under Ontario’s Game and Fish Act. The Powleys claimed that they had an Aboriginal right to hunt for food in the Sault Ste. Marie area under section 35(1) of the Constitution. The Supreme Court of Canada agreed with the Powleys. The Court did not define the word “Métis” for all purposes within section 35(1) of the Constitution.

The Court did say that not all individuals of mixed Indian and European heritage are eligible for section 35(1) rights.

They also declared that a Métis person has to be part of a Métis Community that has developed its own customs, way of life and identity. These Métis communities must have evolved after European contact, but prior to European control. The Court stated that there can be a number of different groups of Métis in Canada.

The Court then said that for Métis to prove that they have an Aboriginal right, they must show that they are part of a particular “Métis Aboriginal Community”, and that the right in question was a practice, custom or tradition integral to the distinctive culture of that Métis Community after European contact but before the Community was under European control. This practice, custom or tradition must have continued in that Community in some way to the present day.

For now, the Court will likely look at the following questions when deciding if an individual is a member of a particular Métis group or Community. First, what is the particular Métis Community, and does the individual identify as a member with that Community? Second, does the individual have an ancestral connection to that Métis Community? Third, does that Métis Community accept that person as a member of that Métis Community?

Ultimately, the Court decided that the Powleys had an Aboriginal right to hunt for food in the area of Sault Ste. Marie, and that right had not been extinguished. The Court also found that the infringement on the Powley’s Aboriginal right through the Ontario Game and Fish Act was not justified. The Court found that there was an historic Métis Community at Sault Ste. Marie which came into existence prior to the date of European control of the area, and that this Métis Community continued to the present day, and that the Powleys were members of this Métis Community. The Court also recognized that hunting for food was integral to the Métis way of life in the area prior to European control, and that the Métis harvesting practices had continued to the present day