Powley and his son shot and killed a bull moose in Sault Ste. Marie. Moose hunting in Ontario is strictly regulated, and the Powleys did not have a hunting license.They claimed that as Métis they had an aboriginal right to hunt for food in the area and therefore the regulations were invalid as they were in violation of s. 35(2).
- How does the Van der Peet test apply to the Métis?
The Métis did not exist before European contact but rather arose as the European settlers mixed with aboriginal peoples living in Canada. However, Métis rights are specifically protected in s. 35(2) of the Constitution Act, 1982.
The Court, in a per curiam decision, states that the Van der Peet test test for aboriginal rights should be applied to Métis rights as well, but it needs to be modified to deal with the fact that they did not exist until after European contact. They state that in order to establish a Métis right, a claimant must:
- identify the historic rights-bearing community - must prove shared customs and traditions as well as a collective identity
- identify the contemporary rights-bearing community - requires a loose connection between the historic and contemporary communities
- verify his or her membership in the relevant contemporary community, which requires:
- the claimant must self-identify as a member of the community;
- there must be evidence of an ancestral connection to a historic Métis community; and
- the claimant must demonstrate that he or she is accepted by the modern community
It is important to note that only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right. The Court says that the appropriate time to look for the Métis right is the time just prior to when the Europeans effectively established political and legal control in the area, i.e. a right that is integral to the Métis distinctive culture at this time. Applying this test to the facts, the Court finds that the Métis had a right to hunt for food in the designated territory at the time just prior to European control – around 1850, and that this right was an integral part of the Métis culture. The rest of the test is also satisfied in this case - the current right is the same as the historic right; there was continuity; the right was not extinguished, it was infringed by the regulation, and the infringement was not successfully justified. Although the Crown tried to argue that the difficulty in identifying members of the Métis community justified the infringement, the Court wholeheartedly rejected this argument.
- When applying the Van der Peet test to Métis claimants, the claimant must demonstrate:
- there was a historic Métis community in the area,
- there is a contemporary community that continues from the historic community, and
- he or she is a member of the contemporary community by showing that he or she has a demonstrable ancestral connection to the historic community.
- The appropriate time to look for the integral right is the time just prior to the time of European control over politics and law in the area.