The Powley Case
After shooting the bull moose near Old Goulais Bay Road, Steve and Roddy Powley transported it to their residence in Sault Ste. Marie. Neither of them had a valid Outdoor Card, a valid hunting licence to hunt moose, or a validation tag issued by the MNR. In lieu of these documents, Steve Powley affixed a handwritten tag to the ear of the moose. The tag indicated the date, time, and location of the kill, as required by the hunting regulations. It stated that the animal was to provide meat for the winter. Steve Powley signed the tag, and wrote his Ontario Métis and Aboriginal Association membership number on it.
Later that day, two conservation officers arrived at the Powleys’ residence. The Powleys told the officers they had shot the moose. One week later, the Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act, R.S.O. 1990, c. G-1. They both entered pleas of not guilty. "
Excerpted from R. v. Powley,  2 S.C.R. 207, 2003 SCC 43
The seemingly insignificant event of breaching a hunting regulation would evolve into one of the most significant legal cases for Métis citizens in the history of Canada.
The battle fought in court was not simply over whether Steve Powley and his son had committed an illegal act, but instead, was fought over whether Métis people posses an aboriginal right to hunt.
The case would be argued over a period of many years as it wound its way from the lower courts of Ontario to the highest court of the country; the Supreme Court of Canada. In September of 2003, the decision was handed down by the Supreme Court of Canada. The court ruled Steve and his son had an aboriginal right to hunt in their local area.
While many celebrated this victory, 5 years later, the Powley decision has left many Métis with more questions than answers.
Background to the Powley Case
Why was this case so significant? Prior to this decision being handed down, Métis people were denied a clear aboriginal right to hunt. While Métis rights were protected and affirmed in the Constitution under section 35, the specific rights that stemmed from that section remained unclear.
Section 35 of the Constitution reads:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
Through shooting a moose without Provincial permits, the Powleys challenged the ‘existing rights’ clause. They contented that harvesting was an existing right of the Metis and that harvesting meat for the winter is Constitutionally protected
This case represented the first significant challenge to these Section 35 rights for the Métis.
Present Implications of the Case
Despite the landmark this case was for Métis Rights within Canada, in the years following the decision, a number of questions remain unanswered. Métis rights to harvest are not universal across Canada, and in many locations, still do not exist at all.
At present, the Province of British Columbia has not acknowledged any Métis right to harvest within BC and Métis hunters have been asked to not pursue rights based hunting until further notice is given.
In September 2004, the Metis Nation of Aberta and the Alberta Government
entered into an Interim Métis Harvesting Agreement (IMHA) to accommodate Métis harvesting rights. The agreement worked effectively for over two and a half years however in 2007, the Province of Alberta adopted a unilateral and regressive policy on Métis harvesting in July 2007. In August of 2007, the MNA Assembly rejected this policy. Métis citizens of Alberta, now without an agreement with the provincial government, continue to exercise their harvesting rights under the Interm Agreement despite the uncertain reaction of the Province.
In Manitoba, Métis citizens of that Province are left without any harvesting rights at present. The Manitoba government has refused to acknowledge any Powley rights and has taken the position that it will let the courts decide on the legality of the hunts.
Saskatchewan has taken a middle road approach to the issue of harvesting rights. Currently, Metis harvesters in the northern half of the Province are able to conduct self regulated Metis hunts. This right has not been extended in the southern half of the province however and despite one small area, Métis harvesters are left without recognized or confirmed Powley rights.
What the future holds for Métis citizens within Canada remains unpredictable. Until conclusive agreements are reached with the Provinces or additional court battles fought, the rights that were affirmed in the Powley case will remain unclear. For the Métis living in British Columbia, there is little to do except continue to push the government to come to the table for talks. In Alberta and the Prairie provinces, the Métis will need to continue their fight to further establish their right to land.
Lastly, what will the future hold for Métis harvesters in areas suffering eco-system decline or environmental decay. What if there are too few animals to hunt as there were before? In the Powley case, it was clearly noted that any right can be restricted over concerns for public safety and conservation. Should that not make all Métis fighting for their rights the most ardent conversationalists?
When Steve and Roddy Powley set out that frosty morning in October of 1993, they likely had no idea what they were doing would fundamentally change the history of the Metis for all time. Despite their struggle and ultimate victory at the Supreme Court, those rights which were fought so hard for have not materialized across Canada.
The issue of Metis specific aboriginal rights is a complicated issue. As the constitution reads, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed,” it will only be through further probing of those rights that Metis people in Canada will fully realize what their collective future is.
LinksThe Supreme Court of Canada's Decision
Metis Nation of Ontario's Harvesting Page
Metis National Council - Metis Harvesting Rights
Office of the Federal Interlocutor's Powley Page
Metis Nation British Columbia - Post Powley