The Definition of Métis Peoples in Section 35(2) of the Constitution Act, 1982

Abstract

The Supreme Court of Canada has finally resolved a number of outstanding issues regarding the definition of 'Métis peoples' in s.35(2) of the Constitution Act, 1982 and the legal principles that must be applied to such communities when asserting Aboriginal rights. On September 19, 2003, the Supreme Court of Canada in R. v. Powley, in a unanimous decision, upheld the rights of members of the Métis community of Sault Ste. Marie to hunt for food. This case is the most important for the Métis since the trial of Louis Riel. The Métis have waited a very long time to have their existence as separate distinct Aboriginal peoples recognized and validated. The court in no uncertain terms defined 'Métis peoples' as possessing 'full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s.35(1)'. It is a decision of great vindication for the Métis, as many years of struggle and pain have finally paid off.

The primary purpose of this article is to examine the definition of 'Métis peoples' in s.35(2) of the Constitution Act, 1982. In undertaking this examination, I am not so concerned with who, as an individual, qualifies as a member of a Métis community; but rather, how the courts have defined the term 'Metis peoples' and the criteria needed to establish that a Métis collective will be recognized as a 'Métis people' under s.35(2). In addition, I examine how the Powley test would apply to Métis communities in the prairies, and in particular explore the possibility of making claims from the level of the Métis nation as a whole.

Keywords: Supreme Court of Canada, Metis peoples, section 35(2), Constitution Act 1982, Aboriginal rights, Aboriginal, R. v. Powley, Sault Ste. Marie, hunt, food, separate, distinct, full status, rights-bearing, definition of Metis, community, Powley test