In R. v. Powley, the Supreme Court has provided a firm foundation upon which to build a Métis section 35 Aboriginal rights jurisprudence. This paper outlines the essential elements of the decision, emphasizing the fact that the Powley test modifies the Van der Peet approach to Aboriginal rights in one crucial respect: Instead of the Aboriginal community having to come into existence at or near the point of European contact, the Métis community may come into existence at a later date but before effective European control. The paper discusses other approaches to Métis aboriginal rights that were raised before the Court but were not discussed in its decision. The paper also canvasses aspects of the decision that are likely to generate future litigation, especially the identification of and membership in historic Métis communities. It concludes by noting that the decision should be seen as a sound first step in an ongoing process of defining Métis Aboriginal rights.
Sterling, Lori and Lemmond, Peter.
"R. v. Powley: Building a Foundation for the Constitutional Recognition of Métis Aboriginal Rights."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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