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Alberta Court of Appeal Adjusts Powley Test to Suit Nomadic Métis Peoples

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Aboriginal Law Bulletin

On July 4, 2013, the Alberta Court of Appeal released its much-anticipated decision in R. v. Hirsekorn, 2013 ABCA 242. Garry Hirsekorn was charged with hunting deer out of season without a permit in violation of the Alberta Wildlife Act. Mr. Hirsekorn believed that, because of his Métis ancestry, he was entitled to hunt for food across the plains of southern and central Alberta as a constitutional right. The Court of Appeal disagreed, dismissing the appeal.

In this appeal, Mr. Hirsekorn asked the Court to consider the application of the Supreme Court of Canada’s test in R. v. Powley, 2003 SCC 43, to plains Métis, who lived a highly mobile way of life, following the buffalo herd across the northwest. In Powley, the Court found that Métis rights must be “site-specific”, belong to a contemporary Métis community that is the continuation of a historic community, and must have existed prior to European control over an area. The community identified in Powley, and the rights at issue, were both located in the environs of Sault Ste. Marie, Ontario. Mr. Hirsekorn argued that for plains Métis, the “site specific” area associated with the practice of his hunting rights did not need to coincide with the geographic area where Métis settlements were located. Further, he claimed that his Métis community should be defined as “Métis of the Northwest” which properly reflects their traditional nomadic lifestyle.

Provincial Court Judgment

R. v. Hirsekorn, 2010 ABPC 385

At trial, Mr. Hirsekorn admitted that he had deliberately hunted in order to challenge the Wildlife Act as contravening his Aboriginal rights under section 35 of the Constitution Act, 1982. As a result, the trial judge found that he had not been hunting for food so his constitutional challenge must fail. Regardless, the judge still engaged in an analysis of the test for Métis rights set out in R. v. Powley.

In his analysis, the trial judge found a modern Métis community existed in the City of Medicine Hat, but did not find any evidence of a historic Métis community. He also held that the Métis in this area did not have a sufficient degree of use, occupation, stability, or continuity prior to the arrival of the North West Mounted Police to support a site-specific harvesting right.

Queen’s Bench Judgment

R. v. Hirsekorn, 2011 ABQB 682

Mr. Hirsekorn appealed the Provincial Court decision on the basis that the trial judge had erred in his narrow interpretation of “site-specific harvesting rights” and “Métis community”.

Mr. Hirsekorn argued that the site-specific requirement for rights applies to where the hunting took place, and that is distinct from the determination of the Métis community. While the Court agreed that a Métis settlement in an area is not a pre-requisite for the exercise of rights in that region, and cautioned that section 35 should not be interpreted in a way that excludes Aboriginal peoples with a nomadic or mobile way of life, the Court also found that “central and southern Alberta or the plains” did not satisfy the site-specific requirement of Métis rights. Instead, the Court characterized the right as the right to hunt for food in the environs of Cypress Hills.

The Court dismissed Mr. Hirsekorn’s appeal on the basis that hunting in the environs of Cypress Hills had not been an integral practice of Métis prior to European control of the region. However, the Court also expressed significant doubts regarding whether the site-specific and pre-control requirements from the Powley test were appropriate for plains Métis given their traditional highly mobile way of life.

Court of Appeal Judgment

In its decision, the Court of Appeal focused on four elements of the Powley test:

Characterization of the Right

The Court concluded that the Court of Queen’s Bench did not err by characterizing the right claimed as the “right to hunt for food in the environs of Cypress Hills”. A more broad characterization of the right as the right to hunt “in central and southern Alberta” or “on the plains” would present practical problems, even in light of the mobile nature of the plains Métis.

Historic Rights-Bearing Community

On this point, Mr. Hirsekorn urged the court to find that a regionally-defined community, described as the Métis Nation or the Métis of the Northwest, was the historic rights-bearing community for the purposes of the Powley test. However, in the absence of clear findings on the nature of the historic Métis community in the time frame leading up to control, and in light of the Court’s findings on the other branches of the Powley test, the Court of Appeal declined to make a determination on whether the regional community could be defined so broadly that there was only one, prairie-wide Métis historic community.

Identification of the Relevant Time Frame

Mr. Hirsekorn argued that the trial judge was incorrect in his finding that the arrival of the North West Mounted Police in southern Alberta in late 1874 amounted to “effective control”, because their arrival did not change the Métis lifestyle and economy forever. The Court of Appeal agreed with the trial judge’s choice of the relevant time frame and dismissed the arguments of Mr. Hirsekorn on this point.

Whether the Practice is Integral to the Culture of the Plains Métis

This issue, which turned out to be the crux of the appeal, required the Court to determine whether hunting for food in the environs of the Cypress Hills was integral to the distinctive culture of the plains Métis.

The Court recognized the danger of creating an artificial barrier to the recognition of the rights of nomadic people with vast ancestral lands if they are required to prove that hunting on a specific tract of land was of central significance to their culture. Consequently, the Court devised a new threshold question that it felt better captured the territorial nature of the practices and traditions of nomadic people: Did the historic Métis community include the disputed area within its ancestral lands or traditional hunting territory? In other words, did they frequent the area for the purpose of carrying out a practice that was integral to their way of life?

In spite of this lower threshold, the Court still concluded that the evidence and facts were insufficient to prove a right to hunt in the environs of the Cypress Hills prior to European control over the region. The Court found that there was no real Métis presence in the Cypress Hills area prior to 1870 and southern Alberta was not, at the time, part of the traditional territory of the Métis. At most, the Court characterized the activities as the beginning of the Métis asserting a presence in the region, falling short of establishing the region as part of the Métis traditional territory.

Given the above conclusions, Mr. Hirsekorn’s appeal was dismissed. The Court of Appeal’s decision adopts the territorial approach to Aboriginal rights applied by the BC Court of Appeal in William v. British Columbia, 2012 BCCA 285, but leaves the interpretation of a “regional Métis community” and how broadly it can be defined for another day.

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