After the unanimous decision in the Powley case that Steve and Roddy Powley were exercising their Métis right to hunt that is protected under s. 35 of the Constitution, there became a need to identify which people were, in fact, Métis for the purposes of Constitutional rights protection in Canada.
The Supreme Court determined that the appropriate way to define Métis rights in s. 35 is to modify the existing legal test used to define the Aboriginal rights of Indians [sic.], known as the Van der Peet test.
The modifications to the Van der Peet test—commonly known as the Powley test— took into account the reality that the Métis are a post-contact people. The Powley test is set out in ten parts:
Characterization of the right.
Identification of the historic rights bearing community.
Identification of the contemporary rights bearing community.
Verification of membership in the contemporary Métis community.
Identification of the relevant time – The Court called the appropriate time test for Métis the “post contact but pre-control” test.
Was the practice integral to the claimant’s distinctive culture.
Continuity between the historic practice and the contemporary right.
Extinguishment.
Infringement.
Justification.
While the Powley test does not define who is or isn’t Métis for all purposes, it is a tool used to identify rights-bearing Métis communities and their members who harvest for the purposes of feeding their families and community.
The Powley case and legal test that it gave rise to not only solidified the rights of the Sault Ste. Marie Métis Community in the Upper Great Lakes, to which the Powley’s belonged, but those of Métis harvesters across the Métis Nation Homeland.
The Powley test has been an instrumental tool for other Métis governments in negotiating harvesting agreements within their own jurisdictions as well as in advancing other seminal Métis rights-related legal cases, including Manitoba Métis Federation v. Canada, R. v. Goodon, and R. v. Daniels.
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