Victory for Powley, Metis rights at Supreme Court

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On Sept. 19, the Supreme Court of Canada confirmed what Metis people have known all along; the Metis of Canada are Aboriginal under the Constitution and have Aboriginal rights under section 35.

The case decided is known as Powley and it began with a charge under Ontario's fish and wildlife legislation against Steve and Roddy Powley who had shot a moose without the benefit of having a license.

The Powleys argued that because they are Metis, they have an Aboriginal right to hunt for food on unused Crown land. The court agreed, concluding that the Powleys are clearly part of a Metis community with a distinctive culture and long historical roots to the area where the moose was shot, and that section 35 rights applied to them.

Though future cases relying on claims of Metis rights will be determined on a case-by-case basis, the court has laid out the ground rules for determining who has those rights and who does not.

The Supreme Court of Canada said that in order to claim section 35 rights as a Metis person, the claimant must:

1. self-identify as a member of an historic Metis community;

2. have evidence of an ancestral connection to an historic Metis community; (though the court rejected the concept of a minimum blood quantum, relying instead on proof that the claimant's ancestors belonged to the historic Metis community by birth, adoption or other means.) and

3. be able to demonstrate acceptance by the members of the modern-day descendents of that historic Metis community.

"What we argued is that the Metis Nation, which we consider to be the Prairies and a little bit into B.C. and Ontario, is genealogically connected and has the same traditions and family connections. That was one Metis people," said Powley lawyer Jean Teillet. "We never said anything about the possibility that there might be somebody in, say, Newfoundland, because we don't know anything about it," she said. "We've never said that [the Metis Nation] are the only Metis people. What we've said is that at the very least, the Metis inclusion in the Constitution includes the Metis Nation."

Teillet said the court decided not who was a Metis, but who was entitled to access Metis rights.

It's a fine distinction. Up to now, many people with Aboriginal blood who were not status Indians called themselves Metis.

"This is about a people, so therefore, there has to be a collectivity there, and there has to be a history and you have to be able to put that forward. Why we say [the Powley decision] is not about a definition [of Metis] is because the court didn't make any statements about who can be a member of that community. But it definitely is talking collective rights of the Metis based on their own history and that is precisely what we argued," she said. "It moves the markers, but it's not a definition by any stretch of the imagination."

She said the decision will require a re-thinking about the rights of non-status Indians, she added.

"I think it's going to be very difficult for organizations like CAP [Congress of Aboriginal Peoples] who have always said that anybody who had any Aboriginal ancestry could claim to be Metis and could claim rights. They've lost that argument. We've always said that's wrong," she said.

And those who are of mixed blood, but not part of an historical Metis community will have some thinking to do.

"I've never thought those people were Metis. The classic one was the woman I met who said to me, 'Well, I'm Metis, too.' And I always play what I call Metis geography, which is 'Where are you from?' and 'What's your real family name?' Because there really are only about 20 real Metis names. You're either a Riel or a Laviolette or a Poitras or a Chartrand or something when it gets down to it. She said to me, 'My mom is part Shuswap and my dad is part Shuswap.' And I asked, 'Well, why doesn't that make you Shuswap?' And she said, 'Because I grew up in Calgary.' And I asked why doesn't that make you a Shuswap who grew up in Calgary? ow does that make you Metis? And she looked at me and said, 'Well, I guess everybody has a different definition of who is a Metis.' And my response was, 'Yes, and some of them are wrong.' Quite frankly, I think she should be justifiably proud of her Shuswap heritage, but why does that make her Metis? It doesn't. And I think this decision is really clarifying that."

Sage asked if the court decision created a new category of Aboriginal people?

"I don't think so," Teillet said. "I think we're left with a larger class of non-status Indians than we had before. Many people who were trying to claim they were Metis are not going to be Metis; they're going to be non-status Indians. And why isn't that correct? If your grandmother was Mi'kmaq, why aren't you Mi'kmaq?"

But the standard used in the United States-blood quantum-was rejected by the court.

"It's completely horrid and the court rejected that quite properly," she said.

The decision did not define who Metis people are, she added, but it clarified the legal landscape, nonetheless.

"I think what we now know is who can exercise Metis rights, not necessarily who the Metis are," she said.

Another Metis rights case, Regina v Blais, was handed down by the Supreme Court on Sept. 19. That decision did not go in favor of Ernie Blais, who was trying to get the court to rule that Metis people should be considered as "Indians" under the Natural Resources Transfer Act (NRTA) of 1930.

In Blais, the court ruled that while the NRTA allowed "Indians" to hunt on vacant Crown land, the argument that Metis people should be considered as "Indians" for the purpose of this law was going too far. The concept that Metis people are "constitutional Indians" put forward by Blais' lawyer was not accepted by the court as it applies to the NRTA, but it may yet prevail when applied to the division of power between the provinces and the federal government in Canada's Constitution, Teillet said.

In Section 91-24 of the Constitution Act, 1867,the federal government reserved responsibility "for Indians and lands reserved for Indians." Metis were not mentioned. But in the Constitution Act, 1982, Metis were recognized as Aboriginal peoples whose rights were "recognized and affirmed." Since they were not mentioned in Section 91-24, the court may yet recognize the concept of "constitutional Indians," Teillet said.