The Powley Test
The Powley Story
On October 22, 1993, Steve and Roddy Powley killed a bull moose just outside Sault Ste Marie, Ontario. They tagged their catch with a Métis card and a note that read “harvesting my meat for winter”. The Powleys were charged with hunting moose without a license and unlawful possession of moose. In 1998, the trial judge ruled that the Powleys have a Métis right to hunt that is protected by s. 35 of the Constitution Act, 1982. The charges were dismissed, but the Crown appealed the decision. In January 2000, the Ontario Superior Court of Justice confirmed the trial decision and dismissed the Crown’s appeal. The Crown appealed the decision to the Ontario Court of Appeal. On February 23, 2001 the Court of Appeal unanimously upheld the earlier decisions and confirmed that the Powleys have an Aboriginal right to hunt as Métis. The Crown then appealed to the Supreme Court of Canada. On September 19, 2003 the Supreme Court of Canada, in a unanimous judgment, said that the Powleys as members of the Sault Ste Marie Métis community, can exercise a Métis right to hunt that is protected by s. 35 of the constitution.
The Powley Test – the New Test to Define s. 35 Métis Rights
The Supreme Court said that the appropriate way to define Métis rights in s. 35 is to modify the test used to define the Aboriginal rights of Indians (the Van der Peet test). This Métis test will now be called the Powley test. The test is set out in ten parts:
A Table of Contents of the Court’s written description of the Powley Test parts:
- 1. CHARACTERIZATION OF THE RIGHT
- 2. IDENTIFICATION OF THE HISTORIC RIGHTS BEARING COMMUNITY
- 3. IDENTIFICATION OF THE CONTEMPORARY RIGHTS BEARING COMMUNITY
- 4. VERIFICATION OF MEMBERSHIP IN THE CONTEMPORARY METIS COMMUNITY
- 5. IDENTIFICATION OF THE RELEVANT TIME
- 6. DETERMINATION OF WHETHER THE PRACTICE IS INTEGRAL TO THE CLAIMANT’S DISTINCTIVE CULTURE
- 7. ESTABLISHMENT OF CONTINUITY BETWEEN THE HISTORIC PRACTICE AND THE CONTEMPORARY RIGHT ASSERTED
- 8. DETERMINATION OF WHETHER OR NOT THE RIGHT WAS EXTINGUISHED
- 9. IF THERE IS A RIGHT, DETERMINATION OF WHETHER THERE IS AN INFRINGEMENT
- 10. DETERMINATION OF WHETHER THE INFRINGEMENT IS JUSTIFIED
(1) Characterization of the Right
The first step is to characterize the right being claimed: Van der Peet, supra, at para. 76. Aboriginal hunting rights, including Metis rights, are contextual and site_specific. The respondents shot a bull moose near Old Goulais Bay Road, in the environs of Sault Ste. Marie, within the traditional hunting grounds of that Metis community. They made a point of documenting that the moose was intended to provide meat for the winter. The trial judge determined that they were hunting for food, and there is no reason to overturn this finding. The right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie.
We agree with the trial judge that the periodic scarcity of moose does not in itself undermine the respondents’ claim. The relevant right is not to hunt moose but to hunt for food in the designated territory.
(2) Identification of the Historic Rights_Bearing Community
The trial judge found that a distinctive Metis community emerged in the Upper Great Lakes region in the mid_17th century, and peaked around 1850. We find no reviewable error in the trial judge’s findings on this matter, which were confirmed by the Court of Appeal. The record indicates the following: In the mid_17th century, the Jesuits established a mission at Sainte_Marie_du_Sault, in an area characterized by heavy competition among fur traders. In 1750, the French established a fixed trading post on the south bank of the Saint Mary’s River. The Sault Ste. Marie post attracted settlement by Metis _ the children of unions between European traders and Indian women, and their descendants (A.J. Ray, “An Economic History of the Robinson Treaty Areas Before 1860 (1998) (“Ray Report”), at p. 17. According to Dr. Ray, by the early nineteenth century, “[t]he settlement at Sault Ste. Marie was one of the oldest and most important [Metis settlements] in the upper lakes area” (Ray Report, supra, at p. 47). The Hudson Bay Company operated the St. Mary’s post primarily as a depot from 1821 onwards (Ray Report, supra, at p. 51). Although Dr. Ray characterized the Company’s records for this post as “scanty” (Ray Report, supra, at p. 51), he was able to piece together a portrait of the community from existing records, including the 1824_25 and 1827_28 post journals of HBC Chief Factor Bethune, and the 1846 report of a government surveyor, Alexander Vidal (Ray Report, supra, at pp. 52_53).
Dr. Ray’s report indicates that the individuals named in the post journals “were overwhelmingly Metis”, and that Vidal’s report “provide[s] a crude indication of the rate of growth of the community and highlights the continuing dominance of Metis in it” (Ray Report, supra, at p. 53). Dr. Victor P. Lytwyn characterized the Vidal report and accompanying map as “clear evidence of a distinct and cohesive Metis community at Sault Ste. Marie,” (V.P. Lytwyn, “Historical Report on the Metis Community at Sault Ste. Marie” (1998) (“Lytwyn Report”), at p. 2 while Dr. Ray elaborated: “By the time of Vidal’s visit to the Sault Ste. Marie area, the people of mixed ancestry living there had developed a distinctive sense of identity and Indians and Whites recognized them as being a separate people” (Ray Report, supra, at p. 56).
In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Metis community that can support a claim to site_specific aboriginal rights. We recognize that different groups of Metis have often lacked political structures and have experienced shifts in their members’ self_identification. However, the existence of an identifiable Metis community must be demonstrated with some degree of continuity and stability in order to support a site_specific aboriginal rights claim. Here, we find no basis for overturning the trial judge’s finding of a historic Metis community at Sault Ste. Marie. This finding is supported by the record and must be upheld.
(3) Identification of the Contemporary Rights Bearing Community
Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community. The trial judge found that a Metis community has persisted in and around Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson_Huron Treaty in 1850. While we take note of the trial judge’s determination that the Sault Ste. Marie Metis community was to a large extent an “invisible entity” (para. 80) from the mid_19th century to the 1970s, we do not take this to mean that the community ceased to exist or disappeared entirely.
Dr. Lytwyn describes the continued existence of a Metis community in and around Sault Ste. Marie despite the displacement of many of the community’s members in the aftermath of the 1850 treaties:
[T]he Metis continued to live in the Sault Ste. Marie region. Some drifted into the Indian Reserves which had been set apart by the 1850 Treaty. Others lived in areas outside of the town, or in back concessions. The Metis continued to live in much the same manner as they had in the past __ fishing, hunting, trapping and harvesting other resources for their livelihood.
(Lytwyn Report, p. 31 (emphasis added); see also Morrison, “The Robinson Treaties”, at p. 201)
The advent of European control over this area thus interfered with, but did not eliminate, the Sault Ste. Marie Metis community and its traditional practices, as evidenced by census data from the 1860s through the 1890s. Dr. Lytwyn concluded from this census data that “[a]lthough the Metis lost much of their traditional land base at Sault Ste. Marie, they continued to live in the region and gain their livelihood from the resources of the land and waters” (Lytwyn Report, supra, at p. 32). He also noted a tendency for underreporting and lack of information about the Metis during this period because of their “removal to the peripheries of the town,” and “their own disinclination to be identified as Metis” in the wake of the Riel rebellions and the turning of Ontario public opinion against Metis rights through government actions and the media (Lytwyn Report, supra, at p. 33).
We conclude that the evidence supports the trial judge’s finding that the community’s lack of visibility was explained and does not negate the existence of the contemporary community. There was never a lapse; the Metis community went underground, so to speak, but it continued. Moreover, as indicated below, the “continuity” requirement puts the focus on the continuing practices of members of the community, rather than more generally on the community itself, as indicated below.
The trial judge’s finding of a contemporary Metis community in and around Sault Ste. Marie is supported by the evidence and must be upheld.
(4) Verification of the Claimant’s Membership in the Relevant Contemporary Community
While determining membership in the Metis community might not be as simple as verifying membership in, for example, an Indian band, this does not detract from the status of Metis people as full_fledged rights_bearers. As Metis 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 Metis claims will have to ascertain Metis 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 Metis identity under s. 35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Metis 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 Metis predecessors. This is not an insurmountable task.
We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition of who is Metis 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’Neill J. in the courts below. In particular, we would look to three broad factors as indicia of Metis identity for the purpose of claiming Metis rights under s. 35: self_identification, ancestral connection, and community acceptance.
First, the claimant must self_identify as a member of a Metis 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.
Second, the claimant must present evidence of an ancestral connection to a historic Metis community. This objective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic 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 Metis community by birth, adoption, or other means. Like the trial judge, we would abstain from further defining this requirement in the absence of more extensive argument by the parties in a case where this issue is determinative. In this case, the Powleys’ Metis ancestry is not disputed.
Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. Membership in a Metis 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 Metis community. The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Metis community’s identity and distinguish it from other groups. This is what the community membership criterion is all about. Other indicia of community acceptance might include evidence of participation in community activities and testimony from other members about the claimant’s connection to the community and its culture. The 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.
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 community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Metis aboriginal rights by virtue of their ancestral connection to and current membership in a Metis community.
In this case, there is no reason to overturn the trial judge’s finding that the Powleys are members of the Metis community that arose and still exists in and around Sault Ste. Marie. We agree with the Court of Appeal that, in the circumstances of this case, the fact that the Powleys’ ancestors lived on an Indian reserve for a period of time does not negate the Powleys’ Metis identity. As the Court of Appeal indicated, “E. B. Borron, commissioned in 1891 by the province to report on annuity payments to the Metis, was of the view that Metis who had taken treaty benefits remained Metis and he recommended that they be removed from the treaty annuity lists” (Sharpe J.A., at para. 139). We emphasize that the individual decision by a Metis person’s ancestors to take treaty benefits does not necessarily extinguish that person’s claim to Metis rights. It will depend, in part, on whether there was a collective adhesion by the Metis community to the treaty. Based on the record, it was open to the trial judge to conclude that the rights of Powleys’ ancestors did not merge into those of the Indian band.
(5) Identification of the Relevant Time Frame
As indicated above, the pre_contact aspect of the Van der Peet test requires adjustment in order to take account of the post_contact ethnogenesis of the Metis and the purpose of s. 35 in protecting the historically important customs and traditions of these distinctive peoples. While the fact of prior occupation grounds aboriginal rights claims for the Inuit and the Indians, the recognition of Metis rights in s. 35 is not reducible to the Metis’ Indian ancestry. The unique status of the Metis as an Aboriginal people with post_contact origins requires an adaptation of the pre_contact approach to meet the distinctive historical circumstances surrounding the evolution of Metis communities.
The pre_contact test in Van der Peet is based on the constitutional affirmation that aboriginal communities are entitled to continue those practices, customs and traditions that are integral to their distinctive existence or relationship to the land. By analogy, the test for Metis practices should focus on identifying those practices, customs and traditions that are integral to the Metis community’s distinctive existence and relationship to the land. This unique history can most appropriately be accommodated by a post contact but pre_control test that identifies the time when Europeans effectively established political and legal control in a particular area. The focus should be on the period after a particular Metis community arose and before it came under the effective control of European laws and customs. This pre_control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on the Metis.
We reject the appellant’s argument that Metis rights must find their origin in the pre_contact practices of the Metis’ aboriginal ancestors. This theory in effect would deny to Metis their full status as distinctive rights_bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1). The right claimed here was a practice of both the Ojibway and the Metis. However, as long as the practice grounding the right is distinctive and integral to the pre_control Metis community, it will satisfy this prong of the test. This result flows from the constitutional imperative that we recognize and affirm the aboriginal rights of the Metis, who appeared after the time of first contact.
The pre_control test requires us to review the trial judge’s findings on the imposition of European control in the Sault Ste. Marie area. Although Europeans were clearly present in the Upper Great Lakes area from the early days of exploration, they actually discouraged settlement of this region. J. Peterson explains:
With the exception of Detroit, Kaskaskia and Cahokia, the French colonial administration established no farming communities in the Great Lakes region. After 1763, only partly in response to the regionwide resistance movement known as Pontiac’s Rebellion, the British likewise discouraged settlement west of Lake Ontario. Desire to keep the peace and to monopolize the profits of the Great Lakes Indian trade were the overriding considerations favouring this policy. To have simultaneously encouraged an influx of white farmers would have upset both the diplomatic alliance with the native inhabitants inherited from the French and the ratio between humans and animals on the ground, straining the fur_bearing capacities of the region.
(J. Peterson, “Many roads to Red River”, in The New Peoples: Being and Becoming Metis in North America (1985), at p. 400)
This policy changed in the mid_19th century, as British economic needs and plans evolved. The British sent William B. Robinson to negotiate treaties with the Indian tribes in the regions of Lake Huron and Lake Superior. One of his objectives as Treaty Commissioner was to obtain land in order to allow mining, timber and other development, including the development of a town at Sault Ste. Marie (Lytwyn Report, supra, at p. 29).
The historical record indicates that the Sault Ste. Marie Metis community thrived largely unaffected by European laws and customs until colonial policy shifted from one of discouraging settlement to one of negotiating treaties and encouraging settlement in the mid_19th century. The trial judge found, and the parties agreed in their pleadings before the lower courts, that “effective control [of the Upper Great Lakes area] passed from the Aboriginal peoples of the area (Ojibway and Metis) to European control” in the period between 1815 and 1850 (para. 90). The record fully supports the finding that the period just prior to 1850 is the appropriate date for finding effective control in this geographic area, which the Crown agreed was the critical date in its pleadings below.
(6) Determination of Whether the Practice is Integral to the Claimants’ Distinctive Culture
The practice of subsistence hunting and fishing was a constant in the Metis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Metis life and a defining feature of their special relationship to the land (Peterson, supra, at p. 41; Lytwyn Report, supra, at p. 6). A major part of subsistence was the practice at issue here, hunting for food.
Peterson describes the Great Lakes Metis communities as follows at p. 41:
These people were neither adjunct relative_members of tribal villages nor the standard bearers of European civilization in the wilderness. Increasingly, they stood apart or, more precisely, in between. By the end of the last struggle for empire in 1815, their towns, which were visually, ethnically and culturally distinct from neighbouring Indian villages and “white towns” along the eastern seaboard, stretched from Detroit and Michilimackinac at the east to the Red River at the northwest.
[R]esidents [of these trading communities]. Drew upon a local subsistence base rather than on European imports. [S]uch towns grew as a result of and were increasingly dominated by the offspring of Canadian trade employees and Indian women who, having reached their majority, were intermarrying among themselves and rearing successive generations of metis. In both instances, these communities did not represent an extension of French, and later British colonial culture, but were rather “adaptation[s] to the Upper Great Lakes environment.” [Emphasis added.]
Dr. Ray emphasized in his report that a key feature of Metis communities was that “their members earned a substantial part of their livelihood off of the land” (Ray Report, supra, at p. 56). Dr. Lytwyn concurred: “The Metis of Sault Ste. Marie lived off the resources of the land. They obtained their livelihood from hunting, fishing, gathering and cultivating” (Lytwyn Report, at p. 2). He reported that “[w]hile Metis fishing was prominent in the written accounts, hunting was also an important part of their livelihood,” and that “[a] traditional winter hunting area for the Sault Metis was the Goulais Bay area” (Lytwyn Report, supra, at pp. 4_5). He elaborated at p. 6:
In the mid_19th century, the Metis way of life incorporated many resource harvesting activities. These activities, especially hunting and trapping, were done within traditional territories located within the hinterland of Sault Ste. Marie. The Metis engaged in these activities for generations and, on the eve of the 1850 treaties, hunting, fishing, trapping and gathering were integral activities to the Metis community at Sault Ste. Marie.
This evidence supports the trial judge’s finding that hunting for food was integral to the Metis way of life at Sault Ste. Marie in the period just prior to 1850.
(7) Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted
Although s. 35 protects “existing” rights, it is more than a mere codification of the common law. Section 35 reflects a new promise: a constitutional commitment to protecting practices that were historically important features of particular aboriginal communities. A certain margin of flexibility might be required to ensure that aboriginal practices can evolve and develop over time, but it is not necessary to define or to rely on that margin in this case. Hunting for food was an important feature of the Sault Ste. Marie Metis community, and the practice has been continuous to the present. Steve and Roddy Powley claim a Metis aboriginal right to hunt for food. The right claimed by the Powleys falls squarely within the bounds of the historical practice grounding the right.
(8) Determination of Whether or not the Right was Extinguished
The doctrine of extinguishment applies equally to Metis and to First Nations claims. There is no evidence of extinguishment here, as determined by the trial judge. The Crown’s argument for extinguishment is based largely on the Robinson_Huron Treaty of 1850, from which the Metis as a group were explicitly excluded.
(9) If There is a Right, Determination of Whether There is an Infringement
Ontario currently does not recognize any Metis right to hunt for food, or any “special access rights to natural resources” for the Metis whatsoever (appellan’s record, at p. 1029). This lack of recognition, and the consequent application of the challenged provisions to the Powleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Metis community.
(10) Determination of Whether the Infringement is Justified
The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the trial judge that the record here does not support this justification. If the moose population in this part of Ontario were under threat, and there was no evidence that it is, the Metis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria set out in R. v. Sparrow,  1 S.C.R. 1075. While preventative measures might be required for conservation purposes in the future, we have not been presented with evidence to support such measures here. The Ontario authorities can make out a case for regulation of the aboriginal right to hunt moose for food if and when the need arises. On the available evidence and given the current licensing system, Ontario’s blanket denial of any Metis right to hunt for food cannot be justified.
The appellant advances a subsidiary argument for justification based on the alleged difficulty of identifying who is Metis. As discussed, the Metis identity of a particular claimant should be determined on proof of self_identification, ancestral connection, and community acceptance. The development of a more systematic method of identifying Metis rights_holders for the purpose of enforcing hunting regulations is an urgent priority. That said, the difficulty of identifying members of the Metis community must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.
While our finding of a Metis right to hunt for food is not species_specific, the evidence on justification related primarily to the Ontario moose population. The justification of other hunting regulations will require adducing evidence relating to the particular species affected. In the immediate future, the hunting rights of the Metis should track those of the Ojibway in terms of restrictions for conservation purposes and priority allocations where threatened species may be involved. In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Metis right to hunt, a right that we recognize as part of the special aboriginal relationship to the land.