In 1993, Steve and his son Roddy Powley shot and killed a moose near Sault Ste. Marie. They attached a handwritten note, saying they were harvesting meat for the winter. However, they were charged with unlawful hunting and possession of game without a license under the provincial Game and Fish Act. The Powley's pleaded not guilty asserting their right as Métis people to hunt for food under section 35.1 of the Constitution Act. The government of Ontario lost the initial court case in the Ontario Court of Justice in December 1998, as Justice Vaillancourt agreed that someone who self identified as Métis, was accepted by the Métis community as a Métis, and who was a person of aboriginal ancestry, could claim Métis rights under section 35.
First appeal - the Ontario government appealed this decision and lost a second time, in the Superior Court of Justice, in January 2000, when Justice O'Neill reaffirmed the original ruling, but refined it to specify that persons who could claim Métis rights were a person who (a) has some ancestral family connection (not necessarily genetic); (b) identifies himself or herself as Métis; and (c) is accepted by the Métis community or a locally-organized branch, chapter or council of a Métis association or organization with which that person wishes to be associated.” In order to satisfy the third point, the court ruled that Métis individuals or groups have to demonstrate that a mixed-ancestry group “formed a ‘distinctive’collective social identity, lived together in the same geographic area, and shared a common way of life.”
Second appeal - The Ontario government appealed again, this time to the Ontario Court of Appeal, who upheld the previous two decisions in a unanimous decision released February 2001. The Appeals court granted a one year stay on the judgement which would allow the Ontario government time to either come up with a new regulatory system for the Métis, or to stop regulating Métis hunting altogether.
Not to be deterred, the Ontario government launched third and final appeal, to the Supreme Court of Canada. 10 years after Steve and Roddy killed that moose, the Supreme Court of Canada released a unanimous decision in September 2003 that ruled that the Powleys as members of the Métis community in and around Sault Ste. Marie, could exercise their Métis right to hunt. The Supreme Court of Canada established a 10 part test, known as the Powley test, to be used to determine the distinct indigenous rights of the Métis, as the court stated that establishing membership in a Métis community was not simple, and had to be determined on a case-by-case basis.
The Powley Test includes the following 10 factors, all of which must be identified to determine a claimant’s legal claim to a related Métis right:
- Characterization of the right claimed: in the context of harvesting, it must be determined whether the hunting is for food, exchange or commercial purposes. It is not species-specific, but a general right to hunt for food in the traditional hunting grounds of the Métis community as a whole;
- Identification of the historic, rights-bearing Métis community that existed in the same geographic area;
- Identification of the contemporary Métis community;
- Whether the claimant is a member of the contemporary Métis community;
- Historical time frame of the practice, to determine if it was integral to the community;
- Whether the practice is integral to the culture of the claimant;
- Whether today’s Métis community continues the practice;
- Whether the right was extinguished (e.g., by the Crown);
- Whether the right was infringed upon (e.g., by the Crown);
- If the right was infringed, whether that infringement can be justified (e.g., if the Crown claims its infringement is due to health, safety and conservation concerns, it must prove that a real threat exists).
The Powley test has become the standard with which any other Métis communities across the Métis nation Homeland, will be measured. Establishing a Métis right [The Powley Test’] is explained in detail on the MNO website.
[With thanks to the Canadian Encyclopedia, Canlii and MNO websites].