By Kirsten Marsh, University of Ottawa

Section 35(1) of the Constitution Act, 1982[1] protects the rights of Canada’s Aboriginal peoples: Indian (First Nation), Inuit, and Métis. While acknowledging Aboriginal rights in the text of the Constitution is a major step forward for Canada’s Aboriginal people, recognition of Aboriginal rights in practice is a separate challenge. Métis are often referred to as ‘mixed-blood’ because of their mixed Indian and European ancestry. But the Métis are as diverse as their Europeans and First Nations ancestors, each with unique history, culture, and language.

Section 35(1) does not define Métis. But in R v Powley,[2] the Supreme Court of Canada provided a framework for determining Métis membership. The Court created a ten-part test that, if satisfied, recognizes Métis’ site-specific rights in practice. In Powley, Steven Powley was charged with unlawfully hunting moose without a license. Mr. Powley asserted an Aboriginal right to hunt for food in the Sault Ste. Marie area of Ontario, and the Court found in favour of Mr. Powley who satisfied all ten steps of the test. The case was a watershed moment for the Métis in Canada: the first time that Métis traditional harvesting and hunting rights were constitutionally protected in practice.

Step 2 of the Powley test—identification of a historic rights-bearing Métis community—requires the Métis group seeking recognition to establish that their community existed in the area historically. Here, distinctiveness of the Métis community, recognized by both the Métis community itself and outsiders, is important. In Powley, the Court found that a distinctive Métis community emerged in the Upper Great Lakes region in the mid-17^th century during the fur trade. Because of evidence that the Métis existed in the area, having a distinctive identity that both the Europeans and Indians recognized as separate from their own, the Court was satisfied that Mr. Powley belonged to a historic rights-bearing Métis community, under step 2 of the test. The Métis in Nova Scotia, however, have a different history, which creates significant challenges for them to satisfy the test.

The ancestry of the Métis of Nova Scotia can be understood as originating in the marriages between French Acadians (early French settlers in Acadia) and Mi’kmaq First Nation in the early 17^th century. Unlike the Métis in Ontario or British Columbia, whose Métis were drivers of the fur trade, the biracial heritage of Métis in Acadia did not provide any comparable political advantage. Consequently, mixed-blood children tended to identify as either Acadian or First Nation rather than as a distinct Métis. Major political and economic events also reinforced the Métis’ concealed identity. For example, in the early 1700s, many Métis disguised themselves as European to avoid scalping raids on the Mi’kmaq First Nation. And in 1755 many Métis, retaining physical features of their Aboriginal forbearers, identified as Mi’kmaq to escape the Great Deportation. Métis culture went underground for the early parts of their existence as a tactical response to discrimination.

Three recent cases have tried and failed to establish Métis rights in the Maritimes.[3] In each of these cases, the judge found that the evidence did not support the existence of an identifiable historic rights-bearing Métis community to support a site-specific Métis right claim under step 2 of the test. In R v Vautour and R v Hatfield, the Court found that the Métis claimants over relied on genealogical evidence to prove the existence of their historic community, which, although demonstrated mixed-blood ancestry, failed to demonstrate how the ancestors identified historically.

The Powley decision limits the Acadian Métis’ ability to break free from a tendency to view Aboriginal communities as homogenous. A tendency that is reinforced through decades of Aboriginal law and policy that fails to recognize the diversity among Aboriginal groups. Given the Powley test’s strictness, Acadian Métis have so far been unable to distinguish themselves from their First Nation neighbours. As a Supreme Court of Canada decision, the Powley test applies to all of Canada’s Métis, despite its establishment within a unique factual context of the Métis in Ontario. Perhaps the inclusion of a more contextual analysis within the legal test to prove Métis membership in Canada would have allowed for a more flexible approach, complementing the distinctive histories of Métis across our country. It remains to be seen if and when the Métis might be able to successfully establish distinct historical rights in the Maritimes.

[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] R v Powley, 2003 SCC 43, [2003] 2 SCR 207 [Powley].

[3] R v Babin, 2013 NSSC 434; R v Hatfield, 2015 NSSC 77; R v Vautour, 2010 NBPC 39.