Steve and Rod Powley, of the Metis community of Sault Ste. Marie, Ontario, went hunting in October 1993. They killed a bull moose and tagged it with a Metis membership card and a note that read "harvesting my meat for winter". One week later, they were charged by Provincial Conservation Officers with hunting moose without a license and unlawful possession of a moose.
Judge Vaillancourt of the Ontario Court of Justice dismissed the charges, ruling that as Metis people, the Powleys had an Aboriginal right to hunt protected under s.35 of the Constitution of Canada.
The Province appealed to the Superior Court of Justice, who confirmed the lower court's ruling. The Province then appealed to the Ontario Court of Appeal, claiming that (i) the Metis of Sault Ste. Marie are not an Aboriginal people distinct from Indians, therefore they can not have distinct Aboriginal rights, (ii) hunting is not important to the Metis, therefore they have no "right to hunt" and (iii) even if the Metis have a "right to hunt", hunting rights of Indians and sport hunters must come first.
On February 23, 2001, the Court of Appeal unanimously dismissed the Province's appeal and ruled Ontario's regulations are an unfair limit on the Aboriginal hunting rights of the Metis.
The Court also rule "the government must proceed with immediate dispatch to establish a scheme that accords due respect and recogntion to [Metis hunting rights}". The Court ordered a one-year stay of the judgment to facilitate consultation and negotiations between the Metis Nation and the Province.
The Metis Nation's Harvesting Policy refers to tags issued to Metis by First Nations and to Metis people harvesting in Treaty areas.
First, in relation to other holders of aboriginal rights -- Indians who enjoy a treaty right to hunt -- the current scheme places Metis rights holders at an obvious disadvantage. Indian hunting rights are given full recognition while those of the Metis are completely ignored. While I accept that conservation may justify some restriction on the protected right, I fail to see how the legislative objective of conservation can justify the blatant disparity in treatment between the two rights holders.
Second, in relation to non-aboriginal hunters, Metis rights holders are given no priority. The failure to attach any weight whatsoever to the aboriginal right flies in the face of the principle that aboriginal food hunting rights are to be accorded priority.
McMurtry C.J.O, Abella and Sharpe JJ.A.
Court of Appeal for Ontario, 2001
The Province has been granted Leave to Appeal to the Supreme Court of Canada. The Supreme Court is expected to hear the case this year and make a ruling sometime in 2003.
However, the Ontario Court of Appeal's ruling must be carried out unless the Supreme Court orders otherwise. As a result, in October, 2001, the Province of Ontario's Ministry of Natural Resources and the Metis Nation of Ontario agreed on an Administrative and Investigative Procedures Screening Protocol.
The Protocol outlined (i) under what circumstances the regulations would apply; (ii) procedures to be followed by Conservation Officers, (iii) when the Protocol does not apply (e.g., in relation to the Trespass to Property Act); (iv) rules regarding seizures; and (v) the right of Conservation Officers to exercise their own discretion during investigations.
Metis Nation's 2001 Harvesting Policy
This Policy came into effect on September 1st 2001, and includes definitions for terms such as "traditional territory" and "Captains of the Hunt". It prohibits harvesting of endangered species, wasting/spoiling wildlife, or harvesting in sanctuaries. It also deals with safety, private property, and methods for gathering relevant statistical information.
In the Powley case, in response to an issue raised by the Province, the Court noted that William Robinson, who negotiated the 1850 treaties with the Ojibwe, told the Metis he would not deal with them as a group, but that individuals could "take treaty" (share in treaty benefits") if the Ojibwe Chiefs agreed.
Borron, commissioned by the Province in 1891 to report on annuity payments to the Metis, maintained that Metis who accepted treaty benefits remain Metis.
Therefore, the Court ruled, Metis who accept treaty benefits from First Nations do not lose their Metis identity, nor can accepting treaty benefits be viewed as a surrender of Aboriginal rights.
The basic position of the government seems to have been simply to deny that these rights exist...While I do not doubt that there has been considerable uncertainty about the nature and the scope of Metis rights, this is hardly a reason to deny their existence...
The government cannot simply sit on its hands and then defend its inaction because the nature of the right or the identity of the bearers of the right is uncertain. The appellant failed to satisfy the trial judge, the Superior Court judge on appeal, and has failed to satisfy me that it has made any serious effort to come to grips with the question of Metis hunting rights.