IS NATIVE ANCESTRY ENOUGH FOR INHERENT SECTION 35 RIGHTS TODAY?

ANALYSIS

Significant court precedent that legally defines indigenous recognition in Canada to date:

1. Steve Powley and Roddy Charles Powley vs Canada (Interveners et al)  - on appeal from the court of appeal for Ontario. ( judgement - 2003)
2. Harry Daniels (et al) vs Canada (&interveners), (judgement - 2016)
3. Keith Boucher vs The Province of New Brunswick, (On appeal from a decision of the Court of Queen’s Bench: October 10, 2018),  (judgement - 2022)
4. The Province of New Brunswick vs Keith Boucher - Leave to appeal the lower court, Supreme Court of Canada ( judgement 2023)

JUDICIAL HISTORY:

The Powley brothers were charged with possession of an out-of-season moose carcass . The judge concluded that since the brothers were descendants of a community of people who were historically mixed, (those who were mixed European and First People before effective European control), they qualified for inherent section 35 rights passed down from their "Metis" community ancestors. From this precedent, the "Powley test" for Metis identity was legally established:  

1. identify as a Métis person;
2. be an accepted member of a present-day Métis community;
3. have ties to a historic Métis community.

https://www.rcaanc-cirnac.gc.ca/eng/1100100014413/1535468629182#:~:text=identify%20as%20a%20M%C3%A9tis%20person,to%20a%20historic%20M%C3%A9tis%20community

• Note that the Powley test was specifically intentioned for Metis Identity ONLY!

Thirteen years later in 2016, the Harry Daniels vs Canada Supreme Court decision, set the following precedent: 

• Metis and non-status Indians are "Indians" under the Canadian constitution. 
• Metis identity is not limited to the Powley decision such that Metis community cultural identities are distinctly different across Canada.
• Aside from cultural distinctions, Metis identity can also be defined as anyone with native ancestry. 

• Note: It is likely that government priority was with communities and individuals clearly eligible for section 35 rights. It seems that the Daniels decision was considered lacking specific clarity for section 35 rights of most Metis people.

In 2010, another out of season moose kill infraction occurred in New Brunswick. Keith Boucher, (who was non-status), identified himself as First Nation, and presented to the court his activity and relationship with a First Nation community as proof of inherent entitlement to hunt game out of season for food. His lawyers presented his case inadequately and in 2018 the judge decided that Boucher did not have sufficient evidence to justify indigenous hunting privileges. But in 2021, Boucher appealed his case sighting inadequate representation and entered into evidence crucially overlooked genealogical evidence, namely data that proved native ancestry. After reviewing all new and old evidence the judge concluded that Boucher passed the Powley test and was entitled to section 35 rights!

Significantly, the Powley test in the Boucher case was modified to add a First Nation origin as an accepted historical reference. The implication of this precedent is that an historic community can be any First Nation community in which an ancestor resided. This modification of the Powley test necessitates a change of the word "Metis" with the word "First Nation" thus allowing self identity as First Nation:

1. identify as a First Nation person;
2. be an accepted member of a present-day First Nation community;
3. have ties to a historic First Nation community.

Additionally, in 2022, the Supreme Court of Canada agreed with the decision of the lower court by dismissing the appeal of the New Brunswick Boucher case!

CONCLUTION

Section 91(24) of the Canada Constitution Act, establishes that the federal government has exclusive authority over "Indians and land reserved for Indians". Section 35(1) of the Constitution Act, 1882, defines Canada's indigenous people as Indian, Metis and Inuit. Section 35(2) of the Constitution Act, 1882, recognizes inherent community rights of Indian, Metis and Inuit people to food harvesting and land. The Canadian Charter of Rights and Freedom Section 2(d) guarantees our right to identify as indigenous and be a member of a community of our choice.

Significantly, the Powley test was modified in the Boucher case to justify Section 35 rights----fulfilling the Daniels vs Canada judgement recognizing indigenous rights of non-status Indians.

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Non-status Indians are now eligible for section 35 rights! Specifically, anyone who self identifies as First Nation, has an ancestor residing in an historical community or territory, and is an accepted member of a present day Indigenous community, qualifies for section 35 rights!

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