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Supreme Court of Canada Dismisses Leave to Appeal in Hirsekorn

Fasken
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Overview

Aboriginal Law Bulletin

On January 23, 2014, the Supreme Court of Canada dismissed an application for leave to appeal the Alberta Court of Appeal decision in R. v. Hirsekorn, 2013 ABCA 242.

The principle issue before the Court of Appeal in Hirsekorn was 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. In Powley, the Supreme Court found, among other things, that Métis rights must be “site-specific” in order to be asserted. In his appeal Mr. Hirsekorn argued that, in order to properly reflect the traditional nomadic lifestyle of plains Métis, the site-specific area associated with hunting rights does not need to coincide with the geographic area in which the Métis settlements are located.

The Court of Appeal recognized the problem of creating a barrier to the recognition of rights of nomadic Métis people by requiring them to prove that hunting a specific tract of land was central to their culture. Consequently, the Court modified Powley and devised a new threshold question: Did the Métis frequent the area in question 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 was insufficient to prove Mr. Hirsekorn’s right to hunt and his appeal was dismissed.

For further information on Hirsekorn, please see our bulletin on the Court of Appeal’s decision released July 4, 2013.

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