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Alberta Court of Appeal Finds Powley Criteria Apply to Métis Settlement Members

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Aboriginal Law Bulletin

In L’Hirondelle v. Alberta (Sustainable Resource Development), 2013 ABCA 12, the Alberta Court of Appeal confirmed the Powley test remains applicable to members of Métis Settlements established under the Alberta Métis Settlements Act. In doing so, the Court overturned a 2009 decision of the Alberta Provincial Court that had found that because of Alberta's unique history and legislative intervention in the 1930s, Alberta Métis Settlement members were prima facie entitled to Métis rights.


The appellant, Robert L’Hirondelle, is a member of the East Prairie Métis Settlement, one of eight statutory settlements under the Alberta Métis Settlements Act. Mr. L'Hirondelle asserted a constitutionally protected right to fish for food and applied for a Métis fishing licence. He was refused the licence by an Alberta Fish & Wildlife officer who, acting in accordance with Alberta's Métis Harvesting Policy, required that Mr. L’Hirondelle provide additional proof, beyond his Métis settlement card, that he was connected to a historic Métis community.

Mr. L’Hirondelle brought a judicial review application of the Fish & Wildlife officer’s decision, seeking an order quashing the decision and directing that he be issued a Métis domestic fishing licence. The chambers judge denied the application, principally on the basis that the decision was not subject to judicial review.

The issue underlying the appeal was whether the Government could “look behind” an individual’s Métis settlement identification card, or whether it had to effectively accept the membership decisions of the Alberta Métis Settlement communities as proof of Powley status.

Even though the chambers judge made a number of errors of law (e.g., the officer’s decision could be judicially reviewed), the Court dismissed the appeal.

Court of Appeal's Decision

The Court of Appeal overturned earlier provincial court authority (R. v. Lizotte, 2009 ABPC 287) that had accepted that membership in a statutory Métis Settlement was sufficient to prove entitlement to constitutionally protected Métis rights. The Court of Appeal disagreed, observing the test for membership in a Métis settlement was not equivalent to the Powley test, and the criteria laid down in Powley was what was required. In Powley, the Supreme Court of Canada had not created a rule that the government must have only one list of Métis status holders to be used for all purposes. Notwithstanding the appellant’s Métis settlement membership, he was not automatically entitled to section 35 rights, and the onus fell to him to prove his rights-bearing status. The Fish & Wildlife officer was entitled to delay the issuance of a Métis fishing licence, pending further proof of the appellant's status.

From a practical perspective, the Court of Appeal in L’Hirondelle is clear that the burden of proof is on individuals—even those members of an Alberta Métis Settlement—to prove their Métis rights-bearing status on a case-by-case basis. The Court found this burden was not unfair as there is nothing improper about “jealously guarding entrenched constitutional rights”. The process ensures that those rights will not be “watered down” by the recognition of unentitled claimants.

The Court expressly refused to comment on the constitutionality of the Alberta Métis Harvesting Policy.  The Policy, however, will likely be under scrutiny by Alberta's highest court later this year in the upcoming appeal of R. v. Hirsekorn, 2011 ABQB 682.

To view the decision, click on the following link (PDF):  L’Hirondelle v. Alberta (Sustainable Resource Development), 2013 ABCA 12

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