Powley Test ‘Incomprehensible and Inaccessible’ to prairie Métis

Edmonton, AB (September 30, 2013) – Ten years to the month after the Supreme Court of Canada released its landmark decision on Métis harvesting rights in R. v. Powley, Alberta Métis are asking the high court to once again turn its attention to the issue of Métis harvesting rights. This time the test case―R. v. Hirsekorn―is about how to apply the Supreme Court’s test in Powley to the descendants of the well-known Métis buffalo hunters of the plains.

The Powley case dealt with the Sault Ste Marie Métis community on the Upper Great Lakes, who largely lived at the same settlement and hunted in the environs of that location. The Hirsekorn case deals with the Métis buffalo hunters who maintained a nomadic lifestyle―following a migratory herd across the prairies―and who rarely or never returning to an established settlement. The key question in the case is: does the Powley test need to be modified or is it flexible enough to fulfill the promise of s. 35 of the Constitution Act, 1982 to the prairie Métis?

Since 2003, courts of the prairies have struggled to apply the Powley test to the prairie Métis. Notably, in Mr. Hirsekorn’s case, each level of court in Alberta re-interpreted and re-applied the Powley test differently than the court below. This legal uncertainty is compounded by conflicting court decisions in Manitoba, Saskatchewan and Alberta that cannot be reconciled. In one situation, a Métis fishing right is recognized by the Manitoba courts and the Manitoba government on one side of a lake, with a Saskatchewan court denying any Métis fishing right on the west side of the same lake.

Métis Nation of Alberta (MNA) President Audrey Poitras said, “Our people do not believe that the recognition of our harvesting rights should be dependent on political whim or whether we are before a judge that decides to apply the Powley test in a flexible manner.”

“Constitutional rights should not be dealt with in such an arbitrary manner. The current situation results in the promise of s. 35 to the prairie Métis being incomprehensible and inaccessible to our people on-the-ground. We believe guidance from the Supreme Court is needed to avoid injustice,” added President Poitras.

Jason Madden, Legal Counsel for Mr. Hirsekorn and the MNA, added, “It’s perverse that the test the Supreme Court established to ‘recognize and affirm’ the rights of different Métis groups is now being used to deny the rights of one of the best-known faces of the Métis Nation in Canada―the descendants of the buffalo hunters of the plains―but the prairie courts are saying Powley ‘ties their hands.’”

“We believe the Supreme Court will want to provide clarity and guidance on this important legal issue in order to ensure the promise of s. 35 to the largest Métis population in Canada―the prairie Métis―is not rendered meaningless courts by rigidity of form triumphing over substance.”

Additional information and a copy of the Application for Leave to Appeal in the Hirsekorn case is available at www.albertametis.com.