Hunt for Justice Will Continue to Alberta Court of Appeal
Medicine Hat, AB (November 15, 2011) – Today, the Métis Nation of Alberta (MNA) responded to the recently released decision of Chief Justice Neil Wittmann in the Métis Nation’s test case on Métis harvesting rights in Alberta – R. v. Hirsekorn. A copy of the decision is available at www.albertametis.com.
“We are pleased that the appeal court overturned significant parts of the trial judge’s decision. In particular, the appeal court rejected the trial judge’s conclusions that because Mr. Hirsekorn was exercising his right to hunt and fish, as a part of a larger political action led by the MNA, his constitutional claim failed,” said Audrey Poitras, MNA President.
Poitras added, “Further, the appeal court rejected the trial judge’s legal conclusion that in order to find a Métis harvesting right in Alberta, a Métis community must be a site-specific settlement located in Alberta prior to effective control. This legal finding essentially rejects the Alberta Government’s longstanding legal position on this issue as well as the underlying premise of its current Métis Harvesting Policy, which it is using in the province.”
While the appeal court did overturn the trial judge on several legal issues, it did not ultimately acquit Mr. Hirsekorn because Chief Justice Wittmann concluded that the Powley test required Métis to prove that hunting for food in the site-specific location of the Cypress Hills was integral to the Métis community’s distinct society, rather than just proving that the Métis hunted for food throughout ‘the plains’ generally, including, the Cypress Hills. The appeal court found that in order to prove the hunting was integral the case law required something more than just showing a Métis presence or harvesting in that location prior to effective control. The MNA intends to appeal the appeal court’s decision on this fundamental issue.
Notably, Chief Justice Wittmann recognized the “ironic” situation the case law creates for mobile aboriginal peoples such as the Métis. He held that he would need to modify the Powley test’s site-specific requirements in order to address a unique situation where an aboriginal people historically followed a herd of animals, such as the Métis buffalo hunters of the Plains. He concluded that it was inappropriate “to modify the Powley test as this level of court,” but highlighted that the evidence and fact situation in this case created an “anomaly” because the historic way of life and mobility of the Métis people ultimately resulted in the Powley test denying them s. 35 rights.
“We believe Chief Justice Wittmann’s decision is helpful in illustrating the important and unique legal issues in this case that need further judicial consideration. In Powley, the Supreme Court of Canada held that s. 35’s promise to the Métis protects their historic practices and traditions, yet parts of the Powley test are now being interpreted in a manner that effectively denies Métis from being able to continue the practices of their ancestors. This cannot be right based on a purposive interpretation of s. 35. We are pleased Justice Wittmann pointed out the legal anomaly that arises in this case,” said Jason Madden, MNA Legal Counsel.
The MNA will now be seeking leave to appeal to the Alberta Court of Appeal in Calgary. It is expected that a hearing of the appeal will not occur until sometime in 2012.
For additional information visit www.albertametis.com or contact Joanne Gunville at the MNA at 780-455-2200.
Backgrounder on Case
This trial (R. v. Hirsekorn) is the result of the current Alberta Government’s cancellation of the Interim Métis Harvesting Agreement (IMHA) in July 2007.
In September 2004, the previous Klein Government executed the IMHA with the Métis Nation of Alberta in order to implement the Supreme Court of Canada’s decision in R. v. Powley in Alberta. The IMHA remained in place for over 2 ½ years until Ted Morton, then Minister for Sustainable Resource Development, cancelled the IMHA and implemented a unilateral and regressive policy that denies Métis harvesting rights in much of central Alberta and all of southern Alberta.
In August 2007, Alberta Métis rejected Ted Morton’s policy and unanimously passed their own Métis harvesting rights action plan and harvesting policy. Métis community hunts were organized and held across Alberta in the Fall of 2007. The current trial involves a Métis harvester who participated in those community hunts (Garry Hirsekorn) in southeastern Alberta.
This trial in southeastern Alberta is to act as a “test case” for the entire province, since there are over 25 other Métis harvesters charged across the province and Métis continue to reject Alberta’s current harvesting policy. The issues raised in the case will determine whether Alberta’s current policy and interpretation of the Powley case is correct.
In this case, Mr. Hirsekorn is arguing that there is a historic rights-bearing Métis community called the Métis of the Northwest and that he is a member of a modern day Métis community that spans southern and central Alberta and extends into northern Alberta and other parts of the modern day Métis Nation, which is the continuation of the Métis of the Northwest. Mr. Hirsekorn asserts this contemporary Métis community possesses food harvesting rights that are protected by s. 35 of the Constitution Act, 1982.
In December 2010, Justice Fisher of the Alberta Provincial Court found that Mr. Hirsekorn has not established a Métis right to hunt for food and convicted Mr. Hirsekorn. Mr. Hirsekorn appealed to the Alberta Court of Queen’s Bench and a hearing of the appeal was held before Chief Justice Wittmann of the appeal court in June 2011. In November 2011, the Alberta Court of Queen’s Bench released its decision overturning significant parts of Justice Fisher’s decision, but upholding the conviction of Mr. Hirsekorn. The case will now be appealed to the Alberta Court of Appeal.