Aboriginal Issues Database ©
Alberta Canada, Métis Settlements - Significant Court Decisions
2003 September 19 - R v Powley 2003 S. C. J. No 43
The Supreme Court of Canada unanimously dismissed the Crown's appeal of lower Court decisions, and effectively found that Steve Powley and his son, Roddy, exercised an aboriginal right under Section 35 of the Constitution Act (1982) to hunt for subsistence when they shot a moose in the Sault Ste. Marie area on October 22, 1993. The Court simply agreed with lower courts. At the same time the Court described a test, the Powley Test, for defining a Metis aboriginal right. The test is set out in ten parts (see below) using as a guide R. v. Van der Peet,  2 S.C.R. 507; and it includes a description of the justification required by government to limit that right as in R. Vs Sparrow  1 S.C.R. 1075.
The relevant courts cases applied by the Supreme Court were: the Constitution Act (1982) s. 35; R. v. Van der Peet,  2 S.C.R. 507; referred to: R. v. Sparrow,  1 S.C.R. 1075; Reference re Manitoba Language Rights,  1 S.C.R. 721.
From the trial judge, through the Ontario Superior Court of Justice and the Ontario Court of Appeal the charge was dismissed and eventually appealed by the Crown to the Supreme Court of Canada.
Powley was charged under the Ontario Game and Fish Act R.S.O. 1990, c. G.1, ss. 46, 47(1)
The parts of the test are:
1. CHARACTERIZATION OF THE RIGHT
2. IDENTIFICATION OF THE HISTORIC RIGHTS BEARING COMMUNITY
3. IDENTIFICATION OF THE CONTEMPORARY RIGHTS BEARING COMMUNITY
4. VERIFICATION OF MEMBERSHIP IN THE CONTEMPORARY MÉTIS COMMUNITY
5. IDENTIFICATION OF THE RELEVANT TIME
6. DETERMINATION OF WHETHER THE PRACTICE IS INTEGRAL TO THE CLAIMANT’S DISTINCTIVE CULTURE
7. ESTABLISHMENT OF CONTINUITY BETWEEN THE HISTORIC PRACTICE AND THE CONTEMPORARY RIGHT ASSERTED
8. DETERMINATION OF WHETHER OR NOT THE RIGHT WAS EXTINGUISHED
9. IF THERE IS A RIGHT, DETERMINATION OF WHETHER THERE IS AN INFRINGEMENT
10. DETERMINATION OF WHETHER THE INFRINGEMENT IS JUSTIFIED
The text describing these parts of the test as they were written in this case may be found at this page: Powley Test Parts