カナダの先住民族の権利とポーリー基準 : メイティーの権利の歴史

抄録

On September 19, 2003, in the Powley case, the Supreme Court of Canada rendered its unanimous decision on the existence of the constitutionally protected Aboriginal rights of the Métis people in Saulte Ste. Marie, western Ontario, recognizing their Aboriginal rights to hunt for the first time in history. The Supreme Court had ruled on Aboriginal land and fishing rights cases for "Indian" claimants and had established a test to determine the existence of these rights. The basic principle of the test entailed that Aboriginal claimants had to prove their exclusive use and occupancy of a contested territory before European contact. This test could not apply to the Métis claimants because their distinctive culture and identity evolved after European contact or rather because of it. Having recognized a discrepancy in applying its own test for the Indians to the Métis people, the Supreme Court in the Powley case modified the test on the basis of the ethnohistorically proven evidence as well as on the ideas of ethnogenesis. This study note discusses the significance of this Powley decision and argues that an in-depth analysis of this decision can help us better understand highly contested Aboriginal rights issues and the critical roles Canadian courts have played in defining Aboriginal rights. It also examines how the court used ethnohistorical evidence expert witnesses presented and how it purposely selected some parts of the evidence to create its own version of Métis ethnogenesis and rights. It also briefly discusses the response to this decision from the Métis National Council germane to the extent to which the Supreme Court defined their Aboriginal rights.