ONTARIO COURT OF APPEAL HEARS THE POWLEY CASE

From January 10 to the 12, 2001, the Ontario Court of Appeal heard the Crown's appeal from the lower court decision which recognized the Métis of Sault Ste. Marie's Aboriginal right to hunt as found in s.35(1) of the Constitution Act, 1982. This is the 3rd level of court for the father and son Defendants (Steve and Roddy Powley). They were first acquitted in provincial court and then in the Ontario Superior Court. The Ontario Court of Appeal is the highest court in Ontario. Any further appeal will have to be to the Supreme Court of Canada (SCC) which is the last court of appeal for all of Canada.

This case will set a precedent which will be binding on all of the courts in Ontario, and if it goes to the Supreme Court of Canada, will be binding on all the courts within Canada. As such, it has a great potential for being the first case to reach the Supreme Court of Canada, and could be the case which sets the precedent for all courts by establishing the test which is necessary for Métis to meet in establishing Aboriginal hunting and fishing rights under s.35(1).

To date, when doing Métis cases, the lawyers are guided by the SCC's decisions from the 1990s which state that the Aboriginal hunting or fishing right being claimed by Indians must be a practice, custom or tradition which was integral to the culture of the Indian community claiming the right prior to contact with the Europeans. With respect to the Métis, the SCC acknowledged that the Métis would not be able to meet the "pre-contact" test, stating that the Aboriginal rights of the Métis may flow from their Indian ancestors or from the Métis community itself. This, they stated, would be answered when they have a Métis-specific fact situation before them.

The SCC has also stated that the proper time frame for determining the existence and content of the Aboriginal right is at the time "effective control" is asserted by the Europeans. Based on these principles, lawyers representing Métis defendants in Aboriginal harvesting rights cases have argued that Métis rights flow from the Métis communities/peoples themselves, as those rights crystalized or came into being as a practice, custom or tradition which was integral to the culture of the Métis community, after the creation of the Métis nation, and before effective control was established by Europeans. The date for effective control will vary in different parts of what is now known as Canada.

In addition, the Court of Appeal will be dealing with the definition of the term "Métis". At the provincial court level, the trial judge adopted a definition which identified a Métis as a person of Aboriginal ancestry, who self-identified as a Métis and is accepted as a Metis by the Métis community. At the Superior Court level on appeal, through the intervention of Toronto Aboriginal Legal Services, the appeal court adopted a different definition, which states:

A Métis is 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.

The lawyers (Jean Teillet & Art Pape) for the Defendants/Respondents, along with the lawyer for the Crown/Appellants asked the Court of Appeal to adopt the definition of Métis from the trial level, while the lawyers for the Interveners Congress of Aboriginal Peoples, Ontario Métis and Aborginal Association and Toronto Aboriginal Legal Services asked the Court of Appeal to adopt the definition put forward by the Superior court judge. The lawyer (Clem Chartier) for the Intervener Métis National Council made the argument that the Court of Appeal judges should not adopt any definition of Métis as only the Métis Nation or people have the right to define who are the Metis.

This case also dealt with a number of other issues which may have a bearing in other parts of the Métis Nation homeland, particularly the Crown/Appellant's argument that where the historic Métis community has dispersed, that the present-day descendants no longer have an Aboriginal right to hunt and fish which their ancestors previously possessed.

Needless to say, this case will provide a lot of interesting issues for discussion around the Métis family kitchen tables.