The Case of the Moose's Ear
By CHRIS JOHNSON, SIMON RUSTON and MARC WILLERS
Above: a Métis woman wears a traditional shawl of her people. The Métis culture sprang from the meeting of Europeans and Native Americans centuries ago.
EVERY Christmas the law blog team visit a case from another jurisdiction. This year we visit Canada and the Canadian Supreme Court case of The Queen v Powley  2 SCR 207. This case involved the Métis peoples and their traditional hunting practices.
The Powley case
The court went through the facts, the constitutional principles involved and the relevant statute and case law before arriving at their conclusions:
On the morning of October 22 1993, Steve Powley and his son, Roddy, set out hunting. They headed north from their residence in Sault Ste. Marie, and at about 9am, they shot and killed a bull moose near Old Goulais Bay Road.
Moose hunting in Ontario is subject to strict regulation. The Ministry of Natural Resources (‘MNR’)…issues Outdoor Cards and validation stickers authorising the bearer to harvest calf moose during open season. People wishing to harvest adult moose must enter a lottery to obtain a validation tag authorising them to hunt either a bull or a cow in a particular area as specified on the tag. The number of tags issued for a given season depends on the calculations of MNR biologists, who estimate the current adult moose population and the replacement rate for animals removed from the population. The validation tag requirement and seasonal restrictions are not enforced against Status Indians, and the MNR does not record Status Indians’ annual harvest….
After shooting the bull moose…Steve and Roddy Powley transported it to their residence in Sault Ste. Marie. Neither of them had a valid Outdoor Card, a valid hunting licence to hunt moose, or a validation tag issued by the MNR. In lieu of these documents, Steve Powley affixed a handwritten tag to the ear of the moose. The tag indicated the date, time and location of the kill, as required by the hunting regulations. It stated that the animal was to provide meat for the winter. Steve Powley signed the tag, and wrote his Ontario Métis and Aboriginal Association membership number on it.
Later that day, two conservation officers arrived at the Powleys’ residence. The Powleys told the officers they had shot the moose. One week later, the Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act 1990. They both entered pleas of not guilty.
The facts are not in dispute. The Powleys freely admit that they shot, killed and took possession of a bull moose without a hunting licence. However, they argue that, as Métis, they have an aboriginal right to hunt for food in the Sault Ste. Marie area that cannot be infringed by the Ontario government without proper justification. Because the Ontario government denies the existence of any special Métis right to hunt for food, the Powleys argue that subjecting them to the moose hunting provisions of the Game and Fish Act violates their rights under s.35(1) of the Constitution Act 1982, and cannot be justified.
The trial court, Superior Court, and Court of Appeal agreed with the Powleys. They found that the members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food that is infringed without justification by the Ontario hunting regulations. Steve and Roddy Powley were therefore acquitted of unlawfully hunting and possessing the bull moose. Ontario appeals against these acquittals.
Section 35 of the Constitution Act 1982 provides:
’35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.”
The Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots. This enables us to speak in general terms of ‘the Métis’. However, particularly given the vast territory of what is now Canada, we should not be surprised to find that different groups of Métis exhibit their own distinctive traits and traditions. This diversity among groups of Métis may enable us to speak of Métis ‘peoples’,: a possibility left open by the language of s.35(2), which speaks of the ‘Indian, Inuit and Métis peoples of Canada.’
The purpose and the promise of s.35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture.
The core question in [ R v Van der Peet  2 SCR 507] was: ‘How should the aboriginal rights recognised and affirmed by s.35(1) of the Constitution Act 1982 be defined?’…
The emphasis on prior occupation as the primary justification for the special protection accorded aboriginal rights led the majority in Van der Peet to endorse a pre-contact test [i.e. pre-contact with European settlers] for identifying which customs, practices or traditions were integral to a particular aboriginal culture, and therefore entitled to constitutional protection. However, the majority recognised that the pre-contact test might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition post-date European contact.
As indicated above, the inclusion of the Métis in s.35 is not traceable to their pre-contact occupation of Canadian territory. The purpose of s.35 as it relates to the Métis is therefore different from that which relates to the Indians or the Inuit. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control.
The trial judge’s finding of a contemporary Métis community in and around Sault Ste. Marie is supported by the evidence and must be upheld.
[W]e would look to three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s.35: self-identification, ancestral connection, and community acceptance.
First, the claimant must self-identify as a member of a Métis community. This self-identification should not be of recent vintage. While an individual’s self-identification need not be static or monolithic, claims that are made belatedly in order to benefit from a s.35 right will not satisfy the self-identification requirement.
Second, the claimant must present evidence of an ancestral connection to a historic Métis community.
Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed….The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community’s identity and distinguish it from other groups.
In this case, there is no reason to overturn the trial judge’s finding that the Powleys are members of the Métis community that arose and still exists in and around Sault Ste. Marie.
The focus should be on the period after a particular Métis community arose and before it came under the effective control of European laws and customs. This pre-control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on the Metis.
The practice of subsistence hunting and fishing was a constant in the Metis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Metis life and a defining feature of their special relationship to the land…A major part of subsistence was the practice at issue here, hunting for food.
Steve and Roddy Powley claim a Metis aboriginal right to hunt for food. The right claimed by the Powleys falls squarely within the bounds of the historical practice grounding the right.
The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the trial judge that the record here does not support that justification. If the moose population in this part of Ontario were under threat, and there was no evidence that it is, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs…While preventative measures might be required for conservation purposes in the future, we have not been presented with evidence to support such measures here.
The Supreme Court concluded that the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under s.35(1) of the Constitution Act 1982. Accordingly the relevant sections of the Game and Fish Act 1990 were of no force or effect with regard to the Powleys in the circumstances of this case. Their acquittals were upheld.
Lessons for Gypsies and Travellers in England and Wales?
The decision in the Powley case provides us with hope that law and policy which restricts the ability of Romani Gypsies and Irish Travellers to live in accordance with their traditional way of life will be successfully challenged and then repealed or amended in the future.
(1) The planning definition of ‘Gypsies and Travellers’
One example of such a policy is that which places a restriction on the provision of caravan sites for Gypsies and Travellers. Current Government planning policy in England and Wales states that the term “Gypsies and Travellers” means:
Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.
The planning definition of ‘Gypsies and Travellers’ results from a long line of caselaw dating back to 1967 and is based on economic nomadism rather than on ethnicity. It follows that an ethnic Romani Gypsy or Irish Traveller will only be able to rely upon the positive Government planning policy on the provision of Gypsy and Traveller sites if s/he can demonstrate compliance with the planning definition.
This presents a number of different problems for ethnic Romani Gypsies and Irish Travellers who are unable to comply with the definition but wish to live in caravans in accordance with their traditional way of life.. For instance, single Romani Gypsy and Irish Traveller women who do not travel for work will not fall within the definition; nor will those who follow sedentary occupations (e.g. as a teacher, healthcare professional or lawyer). As a consequence people falling in those categories will find it very difficult, if not impossible, to gain planning permission for a caravan site where they can reside lawfully.
In our view, these examples demonstrate the fact that the planning definition is deficient. It does not enable single Romani Gypsy and Irish Traveller women who do not travel for work to secure planning permission and it forces other members of the Travelling communities into the position where they will have to choose between the pursuit of potentially well paid sedentary skilled work (which will prevent them from complying with the planning definition) and following a nomadic way of life (seeking work which by its very nature is likely to be unskilled and low paid). In the circumstances it can be strongly argued that the planning definition is incompatible with Article 8 of the European Convention on Human Rights and the positive obligation on member states to ‘facilitate the Gypsy way of life’.
We suggest that the planning definition be replaced by the wider definition that the Government uses for the purposes of the assessment of Gypsies’ and Travellers’ accommodation needs. That wider definition is as follows:
For the purposes of section 225 of the Housing Act 2004 (duties of local housing authorities: accommodation needs of gypsies and travellers) “gypsies and travellers” means—
(a)persons with a cultural tradition of nomadism or of living in a caravan; and .
(b)all other persons of a nomadic habit of life, whatever their race or origin, including— .
(i)such persons who, on grounds only of their own or their family’s or dependant’s educational or health needs or old age, have ceased to travel temporarily or permanently; and .
(ii)members of an organised group of travelling showpeople or circus people (whether or not travelling together as such).
The first part of this wider definition is likely to cover all those Romani Gypsies and Irish Travellers who would wish to live in caravans and to ensure that their right to respect for their traditional way of life is sufficiently protected.
(2) Camping on the highway verge
Gypsies and Travellers have been stopping on the highway verge for short periods of time for hundreds of years but in recent years they have found it increasingly difficult to do so as a result of draconian legislation and eviction action taken by the police and public authorities.
In DPP v Jones  2 WLR 625, the defendants were peacefully protesting on the highway verge outside the perimeter fence of the monument at Stonehenge. They were not causing any nuisance or obstruction. They were charged with trespassory assembly. The House of Lords concluded that there had been no trespass involved:
It is neither desirable in theory nor acceptable in practice for commonplace activities on the public highway not to count as breaches of the criminal law of wilful obstruction of the highway, yet to count as trespasses… (Lord Irvine of Lairg at 633F).
Similarly, it can be argued that Gypsies and Travellers who stop to camp on the highway verge are doing no more than performing a ‘commonplace activity’ and that the practice should not be restricted other than perhaps in circumstances where there is a demonstrable risk to highway safety.
In the Powley case the cultural identity of the Métis people in Canada was recognised in law and they were granted real and tangible rights connected with the use of land. In the UK we believe that the law should similarly recognise the fact that living in caravans and stopping on the highway verge are integral parts of the traditional way of life Romani Gypsies and Irish Travellers and that their right to respect for that way of life should be given sufficient protection in law and policy.
It is crucial that we learn lessons from the treatment of minorities in other countries and that we use all the available tools to protect their traditional way of life.
Though there is no written constitution in the UK and thus no direct constitutional protection for Gypsies and Travellers or any other minority group, the decision in the Powley case may still be useful by way of analogy, as well as a source of inspiration, for those fighting for the rights of Gypsies and Travellers.
Chris Johnson (firstname.lastname@example.org)
Travellers Advice Team (TAT) at Community Law Partnership (CLP)
TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm
Marc Willers, Garden Court Chambers (email@example.com)
Garden Court Chambers have a specialist Romani Gypsy and Traveller Team.
Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work
Simon can be contacted at firstname.lastname@example.org or on 07967 308752/0117 325 0350
 See Department for Communities and Local Government Planning policy for traveller sites (2012); Welsh Government Circular 30/2007 Planning for Gypsy and Traveller Caravan Sites.
 See Chapman v UK (2001) 33 EHRR 399 at para 96.
 See Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (England) Regulations 2006; Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (Wales) Regulations 2007.