What is section 35 of the Constitution Act, 1982?

Section 35 recognizes and affirms the “existing” Aboriginal and treaty rights of the Indian, Inuit and Métis peoples of Canada. Supreme Court decisions in a series of cases have served to clarify these rights, and have established legal tests to determine the scope and content of Aboriginal rights, and which groups hold them. Other rights may be defined through negotiated agreements or settlements. Canadian courts have increasingly urged governments to negotiate – don’t litigate – on Aboriginal rights issues.

Does the Powley decision recognize harvesting rights for MÉtis throughout Canada?

This a point of contention.

The federal government’s position is, “No. The Powley decision deals only with the Métis community in and around Sault Ste. Marie.”

Our position is that a decision by the Supreme Court of Canada sets a legal standard nation-wide. Federal and provincial laws, regulations and policies must be examined, and changed if necessary, so they respect the Aboriginal rights of Métis to hunt, fish, and harvest regardless where they reside in Canada.

Does the Powley decision grant MÉtis the right to hunt or harvest commercially?

The Powley decision addressed only Métis harvesting for the purpose of food. Commercial harvesting and hunting rights have yet to be negotiated with governments, or determined by the courts.

Does the Powley Decision include a legal definition of MÉtis?

The Powley Decision sets conditions that individuals must meet in order to legally exercise their Aboriginal Métis rights under section 35 in the Constitution (1982) to harvest or hunt. It does not define “Métis” – only those who self-identify as Métis may do that. Only those who self-identify as Métis may define their culture, language, values or customs.
 on who may claim Aboriginal Métis rights under section 35. According to the decision, the term "Métis" refers to distinctive peoples of mixed ancestry who developed their own customs, practices, traditions and recognizable group identities separate from their Indian, Inuit and European ancestors. The term "Métis" does not refer to all individuals of mixed Aboriginal and European ancestry.

The Supreme Court of Canada described three conditions that an individual seeking to exercise his or her Métis rights must meet:

Must self-identify, and not

Does the Powley decision affect the Government of Canada's Aboriginal policies?

Before 1982, the Federal Government denied responsibility for Métis as it did not consider them “Indians,” as defined in s. 91(24) of the British North Act (1867) although it did include Inuit as “Indians” under the jurisdiction of the Indian Acts and eligible to access federal programs and services. The Federal Government continued to deny responsibility for Métis after patriation of the BNA Act (1867) and passage of the Constitution Act (1982) that expanded the restrictive term “Indians” to the more inclusive “Aboriginal peoples” defined as “Indians, Inuit and Métis.”

The Federal Government continued a narrow view of “Aboriginal peoples,” and to deny equitable Aboriginal rights to Métis after 1982. It preferred to have to have courts decide what Aboriginal rights might be extended to Métis. The Powley Decision (2003) by the Supreme Court of Canada is a result of the Federal Government’s continued denial of equitable Aboriginal rights to Métis across Canada. The Federal Government has stated that the Powley Decision deals:

“solely with Métis Aboriginal harvesting rights and does not affect current federal programs and services provided to status Indians. The Government of Canada is committed to implementing the Powley decision in good faith, while facilitating responsible hunting and helping to ensure public safety.”

Has the Government of Canada's responded to the Powley decision?

Since the Powley decision, Government of Canada officials have held discussions with provincial, territorial and Métis representatives to establish an effective way to accommodate Métis harvesters in a safe, orderly and responsible manner. Before any new policy or initiative can be introduced, however, a series of complex issues must be resolved. At present, for instance, there is no single, reliable and consistent method in place to identify Métis harvesters across the country.

What activities has the federal government undertaken in response to the Powley decision?

The Federal Interlocutor for Métis and Non-Status Indians leads the Government of Canada's response to the Powley decision. To ensure a comprehensive response, preliminary work includes: analysis of relevant policies and legislation; solicitation of input from stakeholders; identification of possible methods to identify Métis harvesters and implement interim harvesting arrangements; and provision of support to Métis organizations to facilitate their participation in ongoing discussions with federal, provincial and territorial officials.

Does the Powley decision mean that MÉtis are free to hunt and fish without licences?

Not necessarily. Section 35 rights are not absolute. Governments may limit these rights (e.g., to respond to concerns regarding conservation, public safety and health). Specific questions about licensing should be directed to the appropriate government agency or ministry.