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Post-Powley

Summary and Implications

The Supreme Court of Canada decision R v Powley (2004) marked the first time the Supreme Court has considered the implication of Métis Aboriginal rights guaranteed in s.35 of the Constitution Act, 1982. The decision clarified the constitutionally protected rights for the Powley's, however the decision left a large number of questions unanswered for Métis people in other parts of Canada.

Although the court case does not explicitly solidify Métis Aboriginal rights for all Métis peoples in Canada, a number of important legal principles were developed and implemented to provide guidance for future cases on Métis rights.

"The inclusion of the Métis in s.35 represents Canada's commitment to recognize and value distinctive Métis cultures, which grew up in areas not yet open to colonization and which the framers of the Constitution Act 1982 recognized can only survive if the Métis are protected along with other Aboriginal communities."

1. Characterization of the Right

Nature of the Right Protected

"Aboriginal rights are rights held by aboriginal people, not by virtue of Crown grant, legislation or treaty, but by reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada"

It is important to note that section 35 of the constitution is limited to protecting practices that were historically important features of 'distinctive' Métis communities and that continue to be integral to the elements of the Aboriginal culture today. In Van der Peet the court clarified that in accordance with s.35 of the constitution 'in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right." The term "distinctive" excludes features common to all societies, but does not require uniqueness.

The right being claimed must meet a contextual and site-specific component.

For example when asserting a constitutionally protected right to hunt for food a contextual and site-specific assertion would include the reason for hunting and the area in which the hunting is done. The court clarified in Powley that a right to hunt for food is not limited to a certain species (such as moose) but simply needs to be defined as the right to hunt for food.

'Existing case law supports the proposition that if an Aboriginal community engaged in trade beyond that which is incidental to social and ceremonial activities at the relevant historical date, this activity can group the existence of a contemporary commercial Aboriginal right or at least a right to hunt for a moderate livelihood, even if this practice is now substantially curtailed by legislation."

Contextual

When clarifying the nature of the right being claimed it is important not to broaden or narrow the right. It is also important to note that the court has acknowledged that aboriginal rights are capable of growing and evolving over time. For example a constitutionally protected Aboriginal right to hunt includes the adoption of using firearms in place of traditional means. It is essential to demonstrate how the right is a defining feature of the culture and vital to the collective identity of the community.

Site-specific

A Métis Aboriginal rights claimant must establish their connection to an identifiable Métis community with "some degree of continuity and stability". This will be accomplished through presenting evidence of shared customs, traditions and collective identity as well as demographic evidence.

2. Identification of the Historic Rights- Bearing Community

Métis Community

"A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life" The Supreme Court took the opportunity to expand on what qualifies as a Métis community according to the 'continuity aspect' of the definition. The court accepted expert testimony presented at the trial that a Métis community may become an 'invisible entity' within the general population' and still fulfill the continuity component of the definition. If a community of related families and individuals reside elsewhere before returning to their home base 'community', the 'invisible' community will still qualify. The allowance for periods of 'invisibility' results from an acknowledgement of social and political factors such as discrimination and government policy designed to destroy Métis communities in the past.

In the Powley case counsel provided historical records such as trading post records and government surveys of the historic Métis community in the area where the right was being asserted. The demographic evidence presented to the court should prove the shared customs, traditions and collective identity of the Métis community to demonstrate a site- specific Aboriginal right.

3. Identification of the Contemporary Rights-Bearing Community

To be considered communal rights or rights shared by the Métis community the right must be grounded in a historic and present day community and area exercisable because of the Métis persons ancestrally based membership in the present community. The continuity aspect of the community focuses on the practices of the community, rather then the community itself.

4. Verification of the Claimants Membership in the Relevant Contemporary Community

The Supreme Court asserted that at this point the court will only verify membership in a relevant contemporary community on a case-by-case basis until the 'definition' or 'criteria' becomes more standard.

Some have interpreted the courts statements as indicating that being able to prove acceptance in a political organization may not be sufficient proof. That person may also have to prove that the particular political organization to which they belong (MPCBC for example) plays an important role in the Métis community.

Definition

  1. Claimant must self-identify as a member of the Métis community
  2. Claimant must present evidence of an ancestral connection to a historic Métis community
  3. Claimant must have demonstrated that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed

In the unanimous decision, the Supreme Court adopted the MNC national definition as a first step to determine who legally qualifies as a Métis rights holder under s.35 of the constitution. The court qualified its use of the MNC definition as one that contains important components for future definition but is not in itself a comprehensive test.

The court also stressed that 'recent vintage' of self-identification is not acceptable. In other words only those individuals that have participated in a Métis community and practiced Métis customs, practices and traditions for a period of time will fit within the definition. This was included to discourage individuals from self-identifying as a Métis person solely for the purpose of gaining constitutional rights such as the right to hunt.

'The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community identity.” The testimonials of fellow Métis community members about the claimant's involvements and role in the Métis community can be presented in court but will most likely not be sufficient evidence of membership.

The genealogical component requires "some proof that the claimants ancestors belonged to the historic Métis community by birth, adoption or other means." A claimant must also be able to establish acceptance in a modern community that exists in continuity with a historic community.

To establish a Métis identity it is essential to present evidence of 'past ongoing and participation in a shared culture in the customs and traditions that constitute a Métis community's identity and distinguish it from other groups."

5. Identification of Relevant Time Frame

Pre-Control Test

Before the Powley decision, one of the major obstacles facing Métis Aboriginal rights claimants was overcoming the pre-contact component of the Van der Peet legal test. In the Van der Peet decision, the Supreme Court of Canada established a test outlining the requirements for proving that a practice, custom or tradition was integral to the Aboriginal way of life before the Crown asserted sovereignty over the area. In Van der Peet a 3 part 'distinctive practices' test was developed. The first stage was characterizing the right. The second stage was determining whether the practice was 'integral' or in other words 'central and significant' to the Aboriginal community in question. The third stage described the necessity to establish continuity.

  1. "Characterization of claim: determine the precise nature and purpose of the modern activity claimed to be an aboriginal right"
  2. Evaluation of traditional practice: determine whether the activity claimed to be an aboriginal right is part of a practice, custom or tradition which was, prior to contact with Europeans, an integral part of the distinctive aboriginal society of the aboriginal people in question"
  3. Assessment of continuity between the traditional practice and the modern activity; determine whether there is sufficient continuity between the traditional practices and modern activity claimed as an aboriginal right.

Due to the unique fact that Métis people came into existence as a result of European contact the second part of the Van der Peet test gave little hope of the Métis establishing constitutional rights. In Powley the Supreme Court modified this section of the Van der Peet test to one of pre-control.

The Pre-control part of the Powley test focuses importance on the time after a particular Métis community arose but before the community came under control of European laws and customs. The period of European control will be determined by examining the time in history when Europeans achieved political and legal control in an area. The court modified this part of the original test in recognition of the constitutional status of Métis practices, customs and traditions that met all other parts of the Aboriginal legal rights test. Métis people are unique from other Aboriginal groups in this factor yet the constitution has recognized and affirmed existing Métis rights and the Powley test now serves as the legal method to ensure constitutional protection is afforded Métis people.

In Powley the date of European control was determined to be the signing of the Robinson Huron Treaty but this does not mean that treaty dates will be the determination used in other areas. Factors that will influence the moment of European control in a particular area includes the nature and degree of European presence in the area, the extent that colonial authorities encouraged or discouraged settlement in the area, and the extent to which the Métis were actually affected by European laws and customs.

6. Determination of Whether the Practice is Integral to the Claimants Distinctive Culture

To meet this part of the test evidence must be adduced that the activity is an important aspect of the claimant's life and a defining feature of the claimant's relationship to the land. Evidence must be presented that hunting for food is integral to the Métis way of life at the specific geographic location, in the time period immediately prior to European control. The significance of the practice, custom or tradition to the community will contribute to it being found 'integral'. In order to demonstrate that the practice, custom or tradition is of central significance, the claimant must demonstrate that the act is one of the things that made the culture of the society distinctive (not distinct) from the European society that eventually took control. This means that the practice, custom or tradition cannot be a feature common to all human beings or an aspect that is merely incidental or occasional to the Aboriginal society. To determine whether a practice is 'integral' the court will look to the defining and central attributes of the Aboriginal society and the role that the practice plays.

An effective means to determine whether the practice is 'integral' is to ask the question: whether without the practice, custom or tradition the culture in question would be fundamentally altered? In Van der Peet the court stressed that 'practices that are rooted in pre-contact societies of the aboriginal community in question will constitute aboriginal rights."

In order to be considered an 'integral' practice, custom or tradition a practice cannot be dependent on another practice but must be independently important to the culture. Section 35 does not cover Aboriginal practices that are incidental to another or that are only a part of an integral practice.

In Aboriginal rights cases decided before Powley, the Supreme Court has stated that Aboriginal practices, customs and traditions that developed as a result of Aboriginal interaction with European settlers were not constitutionally protected rights. This was one of the reasons that the Supreme Court implemented a pre-contact time period in the Van der Peet case. “Activities which become central or significant because of the influence of European culture cannot be said to be aboriginal rights." However some European influence on a right that existed prior to European control and that continued to be significant afterwards did not disqualify the right from constitutional protection. In Van der Peet the court stated that if the practice, custom or tradition did not only become integral as a result of European influence then the European influence is not relevant to the inquiry.

As a result of the changes made in Powley to a pre-control time period and in light of the unique history of Métis people one would assume that this last part of the factors to be considered in the 'integral to a distinctive culture test' outlined in the Van der Peet test will not be applied to Métis rights cases.

"All practices, traditions and customs which are connected enough to the self-identity and self-preservation of organized aboriginal society should be viewed as deserving the protection of s.35.1."

7. Establishment of Continuity between the Historic Period and the Contemporary Rights Asserted

This part of the Powley test builds on the evidence adduced in the previous 6 parts. It is essential to show a connection between the past and present. A connection between the historical and contemporary facts presented must be established for that specific community. “In some provinces the identification of traditional territories over which commercial hunting, trapping and fishing rights were exercised may not coincide with or may extend beyond the contemporary settlement areas." In some geographic areas difficulty may arise in proving that the contemporary community fits in the definition of 'a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life."

In the Sparrow case, decided by the Supreme Court of Canada in 1990, the court acknowledged that Aboriginal practices, customs and traditions are not static and may have evolved over time for example as a result of technology. However it remains important to show the connection or continuity between the practice, custom or tradition of today and that, which existed, in pre-control Métis communities. This does not mean that a continuous 'chain' must exist and in Sparrow the court admitted that the community may cease to practice for a period of time and resume at a later date but the acceptable time period of cessation has not been clearly defined. The Supreme Court has outlined that the 'continuity' component should be interpreted flexibly.

"Where an aboriginal community can demonstrate that a particular practice, custom or tradition is integral to its distinctive culture today and that this practice custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of s.35.1." Again, for Métis claimants the time period has been changed to pre-control rather then pre-contact. It is important to note that the definition given to distinctive (distinguishing characteristic) is not in comparison to another culture.

8. Determination of Whether or not the Right has been Extinguished

Prior to 1982 Aboriginal rights could be extinguished by the constitution, legislation or by agreement with the Aboriginal people.

In Sparrow the Supreme Court of Canada developed the “clear and plain intent test"to determine whether the right has been extinguished by the government. The Sparrow decision is a leading and foundational case on the meaning of the words used in s.35- "existing" and "recognized and affirmed". The Supreme Court stated that s.35 provides protection for Aboriginal rights however the guarantee is not an absolute protection. The court read internal limitations into s.35 including the fact that "existing" meant that only Aboriginal rights that were not previously extinguished had constitutional protection.

The question becomes: "Has the government previously extinguished a particular Métis right (for example hunting) in accordance with the clear and plain intent test?

One example of a clear and plain intent to extinguish an aboriginal right is through treaty. Passing legislation that does not intend to limit Aboriginal rights but only does so incidentally does not qualify as having a clear and plain intent. In Powley, the Supreme Court determined that whether or not a Métis person's ancestor has taken treaty rights is not relevant to extinguishment. Aboriginal rights are communal rights and one individual cannot agree to extinguish the communities Métis rights. If however an entire Métis community has signed a Treaty then the right will most likely be extinguished.

If scrip process is determined by the court to be an effective infringement of Métis title this does not mean that hunting rights were extinguished without a clear and plain intent to the contrary.

In the Powley case the Supreme Court of Canada said that only the federal government is able to extinguish an Aboriginal right. In order to correctly answer this part one must look into whether the federal government has enacted any legislation in that area and regarding that particular right. It is important to note that in British Columbia the majority of Aboriginal rights remain 'unextinguished' according to the clear and plain intention test.

9. If There Is a Right, Determination of Whether There is an Infringement

If at this point the Aboriginal claimant has established that the practice, custom or tradition is a constitutionally protected Aboriginal right and that the practice, custom or tradition has not been extinguished by clear and plain intent then the legal burden is on the rights clamant to demonstrate that the practice, custom or tradition was not infringed prior to 1982.

The claimant must show that there has been a prima facie infringement of the right because the restriction placed on the right is unnecessary. The claimant must also show that the imposition placed on the Aboriginal right is unreasonable, that the limit causes undue hardship and that the infringement confers with the rights holders preferred means of exercise.

The test used to determine whether there has been a prima facie infringement of an Aboriginal right is - does the legislation have the effect of interfering with an existing Aboriginal right

  1. Is the limit unreasonable?
  2. Does the limit create undue hardship
  3. Do the regulations deny to the holder of the right their preferred means of exercising the right?

10. Determination of Whether the Infringement is Justified

If the court has answered affirmatively to part 9 and determined that the Aboriginal right has been infringed then the legal burden remains with the Crown to prove that although there has been an infringement of the Aboriginal right, the infringement is justified.

Infringement of an Aboriginal constitutional right is legally justifiable if there is a valid legislative objective for limiting the right.

  1. Is there a valid legislative objective for infringing the right, if yes then
  2. Has there been as little infringement as possible? Is fair compensation available? Has the Aboriginal group been consulted?

The government typically justifies infringing aboriginal rights for the larger purpose of conservation. The government would have to present evidence that the population of the 'particular species' is under threat to fulfill a conservation argument. According to the Sparrow decision, in the event that the government proves conservation, Métis people still have the priority to satisfy subsistence needs. Although Aboriginal rights claimants do not have to claim aboriginal rights in a species-specific nature, the government must prove conservation justifications species by species. If conservation is successfully proven then regulation of the Aboriginal right will be justified.

It is at this point in the legal analysis that the current treatment and regulation of other Aboriginal groups in the same geographic area becomes relevant. Proof of hunting rights for other Aboriginal groups in British Columbia would support a claim that the BC government is not justified in limiting Métis hunting rights under the category of conservation if other Aboriginal groups are not equally limited.

Other possible justification arguments the government may advance include closure of hunting territories; reduction or limits on catch amounts, mandatory hunting and fishing license systems and public safety. Possible justification arguments that are more controversial include economic fairness, industrial development, the settlement of foreign populations and non-aboriginal resource demands.

If the court determines that a valid legislative objective exists for infringing the claimant's Aboriginal right the inquiry shifts to look into whether the Crown has acted in accordance with its fiduciary duty to Aboriginal people.

Whether the infringement is 'justified' is dependent on the 'type' of Aboriginal right being asserted. Any allocation of priorities after valid conservation measures have been implemented must give top priority to food. If the claimant is asserting an aboriginal right to commercial hunting and fishing then more purposes may qualify as justifiable limitations.

Even if the court decides that an infringement is justified there is always a duty to consult and involve Aboriginal people in decisions that impact their rights. Whether a duty to consult exists for a good 'prima facie' case of Aboriginal rights (one that has not been proven in court but has legal validity) will be determined in the Haida Nation case soon to be decided by the Supreme Court of Canada.

Although most Métis people have maintained that being included in the Constitution Act afforded Métis people the same fiduciary duty that has been applied to Crown dealings with First Nations, Powley marks one of the first times that the fiduciary duty owed to Métis people has been explicitly stated. At the least, the fiduciary duty owed by the Crown to Aboriginal people entitles that Aboriginal group to be consulted, and for all consultations to be entered into with good faith and with the intention of substantially address the interests of the Métis community. "Powley makes it clear that both federal and provincial governments will now be held to a higher standard of conduct in their dealings with the Métis and that a denial of fiduciary obligations must end."

In order for the Crown to prove there is a valid legislative objective for infringing the Aboriginal right the Crown must be able to convince the court that it has upheld its fiduciary duty towards the Aboriginal claimant, that the Crown has acted in good faith, is not resorting to technicalities, and is respecting the special trust relationship. The Crown must prove that the infringement is not in contradiction to the rights of the Aboriginal people involved because of the fiduciary duty owed to Aboriginal people. Aboriginal interests have to be given priority when balancing competing interests at stake. There must be fair compensation if this is a realistic option and the government must prove that they have consulted Aboriginal people on the issue.

In assessing whether the fiduciary duty has been honored consideration will include an analysis of whether there is as little infringement as possible, whether fair monetary compensation is available, the size of the community, the importance of the harvesting to the group economy, reliance on the resource in issue by non-Aboriginal group, and economic and regional fairness.

Source List

  • Delgamuukw v BC, SCC, 1997.
  • R v Gladstone, SCC, 1996.
  • R v Powley, SCC, 2003.
  • R v Sparrow, SCC, 1990.
  • R v Van der Peet, SCC, 1996.
  • Bell, Catherine and Leonard, Clayton , "A New Era in Métis and Constitutional Rights: The Importance of Powley and Blais”, Alberta Law Review, 2004.
  • Chartrand, Larry. 'Métis Identity and Citizenship” Windsor Review of Legal and Social Issues, 2001.
  • Chartrand, Paul. "The Hard Case of Defining 'The Métis People' and Their Rights: A Comment on R v Powley", Constitutional Forum, 2003.
  • Elliott, David W. "Fifty Dollars of Fish: A Comment on R v Van der Peet" Alberta Law Review, 1996.
  • Goldenberg, Andre. "Surely Uncontroversial. The Problems and Politics of Environmental Conservation as a Justification for the Infringement of Aboriginal Rights in Canada", University of Toronto Journal of Law and Equity. 2002
  • Hogg, Peter W., "Constitutional Law of Canada". 1999.
  • McNeil, Kent. "Aboriginal Title and Aboriginal Rights: What's The Connection?".1997
  • Schmitz, Cristin. "Historic SCC ruling affirms aboriginal rights of Métis", The Lawyers Weekly, Vol.23 No.21, 2003.
  • Teillet, Jean, "Métis Law Summary 2004."