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R v Powley
[2001] OJ No 607
Ontario Court of Appeal
McMurtry CJO, Abella and Sharpe JJA
Appeal from the judgment of O'Neill J, (2000) 47 OR (3d) 30 (Ontario Superior Court of Justice) dismissing an appeal from the judgment of Vaillancourt J, [1999] 1 CNLR 153 (Ontario Court of Justice).
23 February 2001
by Jean Teillet
In 1982 s 35 of the Canadian Constitution was amended to include recognition and affirmation of aboriginal and treaty rights.[1] This constitutional recognition, which is a unique development in the common law world, encompasses Indian, Inuit and Métis people. The law in relation to s 35 has been developed by the Supreme Court of Canada in a series of aboriginal harvesting rights cases starting with R v Sparrow[2] in 1990. Aboriginal rights, which were previously subject to government action, have a new constitutional status, with the result that Crown action that infringes these rights must be justified. To date, this new body of law has been developed for one of the three aboriginal peoples of Canada – Indians. These developments also apply to Inuit. R v Powley (‘Powley’) is an important development for another of Canada’s aboriginal peoples – Métis.
The facts of the case are simple. In 1993 Steve and Roddy Powley, of the Métis Nation, shot and killed a bull moose near the northern Ontario town of Sault Ste Marie. They were charged with unlawfully hunting moose without a licence and unlawful possession of moose. The provincial regulatory scheme in place gave priority to and an exemption from regulation to Indian food hunting but did not recognise an equivalent priority or exemption for Métis.[3]
The lack of inclusion of the Métis in this scheme results in part from the fact that Métis do not fit easily into the jurisdictional landscape of Canada. The federal government, pursuant to s 91(24) of the Constitution Act 1867, has jurisdiction for Indians and Inuit.[4] However Métis are not ‘Indians’ culturally and the law is unsettled as to whether they are ‘Indians’ legally.[5] This has resulted in all levels of government denying jurisdiction and responsibility for Métis.
At trial in the Ontario Court of Justice the Powleys admitted the facts of the offence but claimed that as Métis they had a s 35 aboriginal and/or treaty right to hunt. Mr Justice Vaillancourt found in their favour, as did Mr Justice O’Neill in the Superior Court of Justice on appeal. The Crown then appealed to the Ontario Court of Appeal (‘the Court’). Some of the issues raised in the case include:
The question of who is Métis for the purposes of s 35 has been much debated. The problem of Métis identity has three main aspects. The first is a historical and contemporary reluctance to recognise that the Métis are a ‘people’. The facts at trial showed that the Métis crystallised into a distinct people with their own language, culture and society in the late 18th Century in central and northwest Canada. Their Indian ancestry generally stems from Indians who are indigenous to those areas. Their European ancestry is predominantly French. By the early 1800s they had named themselves the ‘Métis Nation’ and have fought political and physical battles ever since to protect their existence, rights and interests.
The second aspect of the Métis identity issue is about naming. Most of the English historical documents of the 19th century call these people ‘half-breeds’, while historical French documents refer to them as ‘Métis’. A spelling of Métif, Michif or Michiss comes closer to the pronunciation used by the people themselves in the 19th Century. By and large though, the Canadian public thought of them as half-breeds. In the 1960s, as the public became more sensitised to the language of naming, the term ‘half-breed’ fell into disuse and Métis became the word used to describe all persons of mixed aboriginal and European ancestry. Confusion now reigns as to whether the term Métis in s 35(2) refers to all individuals who have mixed ancestry or to a Métis ‘people’.
The third aspect of the Métis confusion stems from the close relationship between Indians and Métis and continuous changes to the definition of ‘Indian’ under the Indian Act.[6] In Powley, the facts at trial showed that after the Robinson Huron Treaty [7] was signed in the Sault Ste Marie area in 1850, many Métis, including the Powleys’ ancestors, moved onto the new Indian reserves. These individuals maintained their identity as Métis despite being registered under the Indian Act. The Powleys’ ancestors were subsequently removed from the reserves and lost their status under the Indian Act. Their ancestors returned to the off-reserve Métis community that persisted in the vicinity of Sault Ste Marie. This movement between the Indian and Métis communities is a constant pattern.
The Crown argued that registration under the Indian Act by the Powleys’ ancestors meant that the Powleys could no longer claim their Métis rights and since they had subsequently lost their status as ‘Indians’, it was likely that they had no rights at all. The Court refused to accept this theory. The Court found that since the Métis community at Sault Ste Marie had persisted, and the Powleys were members of that community, they could claim to exercise its collective harvesting rights. As these rights exist over the same territory as Indian treaty rights, it seems that constitutional aboriginal and treaty rights can co-exist and that a treaty made with Indians does not extinguish the aboriginal rights of the Métis.
Mr Justice Sharpe, who wrote the judgment and with whom the other two judges agreed, declined to define who is Métis. The Court accepted that the Powleys were Métis for the purposes of claiming the protection of s 35 because:
That is, the judgment only deals with those who prove Métis ancestry from the historic Métis community claiming the right. It does not provide a definition of Métis for all purposes. Thus Powley does not stand for the proposition that any individual of mixed ancestry can claim to exercise s 35 harvesting rights. Finally, since the Sault Ste Marie Métis community is part of the Métis Nation, Powley does not deal with claims from other communities of mixed ancestry outside the Métis Nation who may have recently adopted identification as Métis.
Powley establishes that s 35 claims by Métis are to follow the general interpretive principles set out by the Supreme Court of Canada for the s 35 claims of Indians,[9] with necessary modifications for Métis. The Court held that ‘all aboriginal rights are rooted in a common source and they must be determined by common legal principles.’[10] The Court confirmed that s 35 rights claimed by Métis, like other constitutional rights, are to be interpreted in light of the interests they are meant to protect.
In addition the Court quoted Dickson CJ and La Forest J in R v Sparrow, where they described s 35 as:
a solemn commitment that must be given meaningful content ... The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.’[11]
The Court went on to hold that:
As has been so often stated in relation to legislation, treaties and constitutional provisions defining aboriginal rights, a generous and liberal interpretation is called for as the honour of the Crown is at stake.[12]
The Court also found that Métis rights are an equal subset of s 35 aboriginal rights and are not subordinate to Indian rights.
The constitution formally recognizes the existence of distinct ‘Métis peoples’, who, like the Indian and Inuit, are a discrete and equal subset of the larger class of ‘aboriginal peoples of Canada.’ It seems to me that, in keeping with the interpretive principles to which I have already referred, we must fully respect the separate identity of the Métis peoples and generously interpret the recognition of their constitutional rights. The rights of one people should not be subsumed under the rights of another.’[13]
The source of the aboriginal rights claimed by Métis was an issue in this case. The Crown argued that the aboriginal rights of the Métis are derivative of and entirely dependent on the pre-contact practices of their Indian ancestors. The Powleys argued that the Métis are a distinct aboriginal people and that the practices and culture of the Métis people are the source of Métis rights. Mr Justice Sharpe held that on the facts of this case it wasn’t necessary to determine the issue because both Indians and Métis were hunting. However, he went on to note that:
To make Métis rights entirely derivative of and dependant upon the precise pre-contact activities of their Indian ancestors, would, in my view, ignore the distinctive history and culture of the Métis and the explicit recognition of ‘Métis peoples’ in s 35.[14]
In R v Van der Peet the Supreme Court of Canada held that for a practice, custom or tradition to be given the protection of s 35, it had to be practiced prior to ‘contact’ with European peoples, but recognised that this test was not necessarily applicable to Métis claims.[15] The Powleys argued that a more appropriate test was put forward in R v Adams (‘Adams’),[16] where the Supreme Court determined that the appropriate time was when Europeans asserted ‘effective control’ over the area at issue (which, in Adams, was almost 70 years after ‘contact’). The Crown argued that the test should be the date of the effective Canadian sovereignty. The evidence at trial showed that contact between Europeans and aboriginal people first occurred in the Upper Great Lakes area in the early 1600s. The area was largely under Métis and Indian control until at least 1815, when the balance of power began to shift. By 1850 Canada had effective control over the area. 1850 is also the date fixed by the Crown as the date of effective Crown sovereignty. The Court declined to decide which was the correct test because both sides agreed that 1850 was the relevant time for establishing whether or not hunting was an integral cultural practice of the Métis.
The Crown also argued that the right must be characterised in terms of a specific species. In other words, that this case was about a right to hunt moose for food. The Crown argued that since the facts showed that there were few if any moose in 1850 there could be no modern right to hunt moose. All levels of court have declined to characterise the right as species specific. At trial in the Ontario Court of Justice, Mr Justice Vaillancourt found as a fact that the hunting practices of the Métis were part of an integrated economy that adapted to cyclical changes in the availability of fish and game. In the Court of Appeal Mr Justice Sharpe noted that characterisation of the claim must be considered at a general rather than at a specific level and that the aboriginal perspective must be taken into account.[17] The Court also emphasised that to characterise the right in game-specific terms gives undue emphasis to the regulatory concerns of today and insufficient attention to the aboriginal perspective.[18] In the end the Court affirmed the right claimed as a right to hunt for food without reference to a specific species.
In one of the most important developments in this case, the Court found that the government has a positive obligation with respect to the protection of aboriginal rights that have not yet been proved in court. This is the first clear statement of its kind from a Court of Appeal in Canada. With respect to the Métis, the Government of Ontario claimed that uncertainty about the definition of Métis released them from any obligation to deal with their claims. In response, Mr Justice Sharpe had this to say:
I do not accept that uncertainty about identifying those entitled to assert Métis rights can be accepted as a justification for denying the right ...The basic position of the government seems to have been simply to deny that these rights exist, absent a decision from the courts to the contrary. While I do not doubt that there has been considerable uncertainty about the nature and scope of Métis rights, this is hardly a reason to deny their existence. There is an element of uncertainty about most broadly worded constitutional rights. The government cannot simply sit on its hands and then defend its inaction because the nature of the right or the identity of the bearers of the right is uncertain.[19]
While the Court found that the Powleys, as Métis, have a right to hunt that is protected by s 35, it suspended the exercise of the right for one year. The Court said that it was fashioning its remedy in order to facilitate negotiations towards the establishment of a new consensual hunting regime that gave the proper recognition to Métis hunting rights. The court further said that the government had to proceed with the ‘utmost dispatch’ to implement a new regime.
As at the date of publication, the Métis Nation of Ontario and the provincial government are in negotiations. Whether or not those discussions are successful, as of 23 February 2002, Métis in Ontario will be able to exercise their hunting rights. The Crown filed for leave to appeal to the Supreme Court of Canada, which was granted on 4 October 2001. The case has been tentatively set down for a hearing in October of 2002.
Jean Teillet is legal counsel for the Powleys. She specialises in aboriginal rights law and is an associate with the law firms Ruby & Edwardh in Toronto, Ontario and Pape & Salter in Vancouver, British Columbia. Ms Teillet is Métis from Red River in the Province of Manitoba.
[1] Section 35: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed; (2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.
[3] Game and Fish Act, RSO 1990, c G-1.
[4] Re Eskimos [1939] SCR 104 (Supreme Court Canada).
[5] See R v Grumbo [1998] 3 CNLR 172 (Saskatchewan Court of Appeal) and R v Blais [2001] MJ No 168, which found that Métis are not ‘Indians’. But see also R v Ferguson [1994] 1 CNLR 117 (Alberta Queens Bench), where the court found that Métis are ‘Indians’. See also the Canada Communication Group, Report of the Royal Commission on Aboriginal Peoples (1996) 209; Chartier, ‘Indian: Analysis of the Term’ (1978) 43 Saskatchewan Law Reports 37; and P Hogg, Constitutional Law of Canada (1997) 27-3. These three references conclude that Métis are ‘Indians’ for the purposes of s 91(24).
[6] RSC 1985, c I-5.
[7] The Robinson Huron Treaty was between the Crown and the Ojibway.
[8] R v Powley [2001] OJ No 607 para 179.
[9] R v Van der Peet [1996] 2 SCR 507.
[10] R v Powley, above n 8, para 92.
[11] R v Sparrow, above n 2, para 1108.
[12] Ibid para 80.
[13] Ibid para 101.
[14] Ibid.
[15] R v Van der Peet, above n 9, 558.
[16] [1996] 4 CNLR 1, paras 40-45.
[17] R v Powley, above n 2, para 106-115.
[18] Ibid para 114.
[19] Ibid para 166.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2001/72.html