Métis Rights in the Courts Again
Alberta Court of Appeal Will Hear Precedent-Setting Métis Harvesting Rights Case on Thursday
Calgary, AB (February 6, 2013) – On Thursday, a three-member panel of the Alberta Court of Appeal will hear the first Métis harvesting rights case to be considered by an appellate court since the landmark Powley case over a decade ago.
The case – R. v. Hirsekorn – dates back to the Stelmach Government’s 2007 cancellation of a Métis harvesting agreement that implemented the Powley decision in Alberta. Following the cancellation of this agreement, the Métis Nation of Alberta (MNA) proceeded to organize traditional hunts across the province to protest the cancellation. The Hirsekorn case is one of the charges that came out of those hunts, and was taken as a test case for Alberta Métis.
In the Fall of 2007, Garry Hirsekorn shot a mule deer in the Cypress Hills. At a 42 day trial which included 35 expert and community witnesses, Mr. Hirsekorn asserted a Métis right to hunt for food protected by s. 35 of the Constitution Act, 1982. At trial, Mr. Hirsekorn was convicted because the trial judge found the Métis had not established a site-specific settlement in southern Alberta prior to the arrival of the Northwest Mounted Police in 1874.
On appeal, Chief Justice Wittmann of the Alberta Court of Queen’s Bench noted the “ironic” result that applying the Powley test to the unique fact situation of the Métis on the Prairies resulted in his conclusion that the Métis had no harvesting rights. However, he concluded “it would be inappropriate to modify the Powley test at this level of court in light of the weight of Supreme Court of Canada authority.”
The MNA and Mr. Hirsekorn are being represented by well-known Métis rights lawyers – Jean Teillet and Jason Madden. Several interveners, including, the Métis National Council will also be participating in the hearing. The hearing will begin at 9:30 a.m. (MT) on Thursday at 601 5th Street SW in Calgary. Additional information about the case is available at www.albertametis.com.
“We are looking forward to having the Alberta Court of Appeal consider our arguments that a narrow definition of Métis community - when you are considering the historic practices of the Métis buffalo hunters of the Plains and the Métis on the Prairies today - is unsound,” said Audrey Poitras, MNA President.
“So far, the lower courts in Alberta have made section 35 of the Constitution Act, 1982 an empty promise to Alberta Métis. A purposive application of the Powley test cannot result in the descendants of one of the most well-known faces of the Métis Nation – the Métis buffalo hunters – having no harvesting rights in the Prairies. This cannot be reconciled with s. 35’s commitment to our people,” concluded President Poitras.
Métis National Council President Clément Chartier, who will also be in attendance at the hearing, added, “The Hirsekorn case, combined with the Federal Court’s recent decision in the Daniels case, along with the pending decision from the Supreme Court of Canada in the Manitoba Métis Federation’s land claim case, should signal to all governments that the time has come for them to move forward on Métis rights and self-government or the courts will continue to force their hands in order to ensure Canada’s Constitution is respected.”
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