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.

WHAT IS THE PURPOSE OF SECTION 35 (1) OF THE CONSTITUTION ACT OF CANADA?

The Supreme Court of Canada in the VAN DER PEET Decision has stated: What s. 35(1) does is provide the constitutional framework through which the fact that Aboriginal(s) lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the preexistence of Aboriginal societies with the sovereignty of the Crown.

WHAT DIFFERENT ASPECTS ARE RECOGNIZED FOR ABORIGINAL PEOPLE’S ABORIGINAL RIGHTS FROM OTHER CONSTITUTIONAL RIGHTS IN THE CONSTITUTION ACT OF CANADA?

Firstly, that the “Aboriginal Peoples occupy the land”, and Secondly, that the “Aboriginal Peoples have prior social organization and distinctive cultures as Aboriginal peoples on that land.

The Supreme Court of Canada in the DELGAMUUKW Decision has stated:

Since the purpose of s. 35(1) is to reconcile the prior presence of Aboriginal peoples in North America with the assertion of Crown sovereignty, it is clear from this statement that s. 35(1) must recognize and affirm both aspects of that prior presence, first the occupation of land, and second, the prior social organization and distinctive cultures of Aboriginal Peoples on that land.

WHAT IS ONE “IDENTIFICATION TEST” FOR A SECTION 35(1) ABORIGINAL RIGHT?

The Supreme Court of Canada in the VAN DER PEET Decision has stated:

In order to fulfill the purpose underlying s. 35(1) -- i.e.: the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America, Aboriginal Peoples lived on the land in distinctive societies, with their own practices, customs and traditions – the test for identifying the Aboriginal rights recognized and affirmed by s. 35(1) must be directed at “identifying the crucial elements of those pre-existing distinctive societies”. It must, in other words, aim at identifying the practices, traditions and customs central to the Aboriginal societies that existed in North America prior to contact with the Europeans.

WHAT TESTS AN “ACTIVITY” TO BE A SECTION 35(1) ABORIGINAL RIGHT?

The Supreme Court of Canada in the VAN DER PEET Decision has stated:

In light of the suggestion of the (Supreme Court of Canada) Sparrow decision, supra, and the purposes underlying s. 35(1), the following test would be used to identify whether an applicant has established an Aboriginal right protected by s. 35(1): in order to be an Aboriginal right protected under s. 35(1), an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the [s. 35(1)] right.

WHAT MAKES A SECTION 35(1) ABORIGINAL RIGHT “DIFFERENT” FROM OTHER CONSTITUTIONAL RIGHTS?

The Supreme Court of Canada has consistently; and again in the POWLEY Decision, stated that:

Aboriginal rights are Communal rights: They must be grounded in the existence of a historic and present Aboriginal Community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present Aboriginal Community.

WHAT IS “EXPECTED” IN DETERMINING AN ABORIGINAL COMMUNITY CONNECTION?

The Supreme Court of Canada in the POWLEY Decision stated the following minimum expectations:

While determining membership in the Métis Community might not be as simple as verifying membership in, for example, an Indian band, this does not detract from the status of Métis people as full-fledged rights-bearers. As Métis communities continue to organize themselves more formally and to assert their Constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified. In the meantime, courts faced with Métis claims will have to ascertain Métis identity on a case-by-case basis. The inquiry must take into account both the value of Community self-definition, and the need for the process of identification to be objectively verifiable. In addition, the criteria for Métis identity under s.35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Métis held by virtue of their direct relationship to this Country’s original inhabitants and by virtue of the continuity between their customs and traditions and those of their Métis predecessors.

WHAT ARE SOME IMPORTANT “COMPONENTS” IN DEFINING A MÉTIS PERSON?

The Supreme Court of Canada in the POWLEY Decision has set out some important guiding components to consider:

“We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition of who is Métis for the purpose of asserting a claim under s.35. We therefore limit ourselves to indicating the important components of a future definition, while affirming that the creation of appropriate membership tests before disputes arise is an urgent priority. As a general matter, we would endorse the guidelines proposed by Vaillancourt J. and O’Neil J. in the Courts below. In particular, we would look to three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s.35:

1. SELF-IDENTIFICATION
2. ANCESTRAL CONNECTION
3. COMMUNITY ACCEPTANCE

WHAT “WILL” AND WHAT “WOULD NOT” SATISFY VERIFIABLE SELFIDENTIFICATION OF A PERSON CLAIMING TO BE A MÉTIS?

The Supreme Court of Canada in the POWLEY Decision has stated:

First, the claimant must self-identify as a member of a Métis Community. This self-identification should not be of recent vintage. While an individual’s self identification need not be static or monolithic, claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self-identification requirement.

WHAT "EVIDENCE" MUST A MÉTIS PERSON PROVE FOR “ANCESTRAL CONNECTION” TO A METIS COMMUNITY?

The Supreme Court of Canada in the POWLEY Decision has stated:

Second, the claimant must present evidence of an ancestral connection to a historic Métis Community. This objective requirement ensures that beneficiaries of s.35 rights have a real link to the historic [Métis] Community whose practices ground the right being claimed. We would not require a minimum “Blood quantum”, but we would require some proof that the claimant’s ancestors belonged to the historic Métis Community by birth, adoption, or other means.

WHAT IS AT THE “CORE” OF MÉTIS COMMUNITY ACCEPTANCE?

The Supreme Court of Canada in the POWLEY Decision has stated:

Third, the claimant must demonstrate that he or she is accepted by the modern Métis Community, whose continuity with the historic Métis Community provides the legal foundation for the right being claimed. Membership in a Métis political organization may be relevant to the question of Community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis Community. The core of Métis Community acceptance is past and on-going participation in a shared culture, in the customs and traditions that constitute a Métis Community’s identity and distinguish it from other groups. This is what the Community membership criterion is all about. Other indicia of Métis Community acceptance might include evidence of participation in Métis Community activities and testimony from other members about the claimant’s connection to the Métis Community and its culture range of acceptable forms of evidence does not attenuate the need for an objective demonstration of a solid bond of past and present mutual identification and recognition of common belonging between the claimant and other members of the rights-bearing Community.

WHO IN A “DEFINED CONTEMPORARY MÉTIS COMMUNITY” CAN CLAIM A S. 35 RIGHT?

The Supreme Court of Canada in the POWLEY Decision has stated:

It is important to remember that, no matter how a contemporary Community defines membership, only those members with a demonstrable ancestral connection to the historic Métis 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.