On May 2, 2019, the Supreme Court of Canada dismissed the application for leave to appeal from the Québec Court of Appeal’s decision in Corneau v. Attorney General of Québec. The Québec Court of Appeal’s judgment thus concludes this matter that featured a group of individuals claiming Métis status to oppose an application for dispossession of public lands they were occupying without any property right, lease or occupancy permit.
Please refer to our bulletin on the trial judge’s ruling for a detailed overview of the facts of this case.
This bulletin focuses on the key takeaways from this decision with regard to the application in Québec of the criteria established in the Supreme Court of Canada Powley case.
The Powley test
To be declared Métis and thus qualify for the Aboriginal rights to hunt, trap, gather and fish for food on the ancestral territory of the Métis Community of Domaine-Du-Roy and Seigneurie De Mingan, the members of the group needed to demonstrate that the criteria established in the Supreme Court of Canada Powley case were met, which the trial judge had concluded was not the case.
On appeal, the appellants called into question the trial judge’s assessment of the evidence on the following issues:
- the identification of the historic community that holds the rights being claimed;
- the existence of a modern community characterized by some degree of continuity and stability with the historic community;
- the appellants’ membership in the modern community in question; and
- the period of control.
Flexible and more generous rule on balance of probabilities
The appellants within the group argued that the trial judge did not apply the “flexible, more generous” rule on balance of probabilities set out in Powley that takes into account the aboriginal historical context and the evidentiary difficulties inherent in adjudicating aboriginal claims. Establishing the existence of a historic community requires proof not only of biological miscegenation, but also of shared customs, traditions and a collective identity among the group’s members. In this case, the Court of Appeal accepted the trial judge’s assessment that the evidence demonstrated that individuals of mixed descent did not evolve as a distinct group, being instead absorbed into the Montagnais and later into the Euro-Canadians.
Balance of criteria for identifying a historic community
The appellants contended that the trial judge had made the Powley test for identifying a historic community harder or stricter. The trial judge had concluded that [translation] “other than the fur trade”, the appellants failed to prove the existence of sufficiently defined practices or traditions that would allow him to identify a historical Métis community. The relevant passage in Powley states that: “[…] a Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. […]”. The Court of Appeal did not revise the trial judge’s assessment of the evidence on this issue.
Comparison with another Métis community
Here, the Court of Appeal identified an error in the trial judgment. The trial judge imposed an additional requirement for the identification of a Métis community under the Powley test, without which a historic community could not exist, namely proof that the members of a community lived near each other and formed a group of a certain density.
The Court of Appeal referred to case law from the western provinces confirming that a historic community may be regional and nomadic on a more or less vast territory. The Court of Appeal pointed out, however, that the context of the case law is entirely different from that of the Métis Community of Domaine-Du-Roy and Seigneurie De Mingan, as the case law involved recognized historic communities under section 35 of the Constitution Act, 1982 and the debate concerned the territorial expansion of the Aboriginal rights of these communities whose lifestyle was nomadic.
Despite the trial judge’s error, the Court of Appeal did not agree with the appellants, since although a historic community may be regional and nomadic, this does not mean that the appellants were exempt from having to establish the existence of a community having its own customs, traditions and way of life.
Given the Court of Appeal’s conclusion on the identification of a historic community, it was not necessary to continue the analysis based on the Powley test.
The Court of Appeal also decided to look into the issue of control, more specifically the criterion used by the trial judge to determine control. Control is the time period before which the existence of a Métis community grouping Métis people with a distinctive collective identity, living together in the same geographical area and sharing a common way of life, must be established. The Court of Appeal confirmed the legal criterion chosen by the trial judge, namely the same as the one applied by the trial judge in Powley and that was later confirmed by the Supreme Court of Canada. Accordingly, instead of asking when the Europeans effectively gained control of the region, the judge sought facts revealing at what point the customs, practices and traditions of the Aboriginal peoples were deeply disturbed by European laws and customs.
Corneau v. Attorney General of Québec is to this day the primary reference with regard to the application of the Powley test in Quebec. In particular, it highlights the challenges in demonstrating the presence of a Métis community in Quebec.
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 Corneau v. Attorney General of Quebec, 2018 QCCA 1172
 R v. Powley,  2 SCR 207, 2003 SCC 43.
 R. v. Powley,  2 SCR 207, 2003 SCC 43, at paras 10-13 and 23; Corneau c. Procureure générale du Québec, 2018 QCCA 1172 at para. 68.
 Corneau v. Attorney General of Quebec, 2018 QCCA 1172 at para. 68.
 R. v. Powley,  2 SCR 207, 2003 CSC 43 at para. 12.
 Corneau c. Attorney General of Quebec, 2018 QCCA 1172 at para. 86, citing R. v. Hirsekorn, 2013 ABCA 242 at paras. 26-27 (application for leave to appeal to the Supreme Court dismissed, January 23, 2014, no. 35558); R. v. Goodon, 2009 MBPC 59 at paras 34-48; R. v. Laviolette, 2005 SKPC 70 at paras 28 and 30.
 Corneau c. Procureure générale du Québec, 2018 QCCA 1172 at para. 96.