Métis rights suffer blow with Supreme Court decision

The Supreme Court of Canada will not be hearing an appeal on Métis harvesting rights in Alberta. The decision came down in January with no explanation offered.

In a memo to Métis Nation of Alberta members, President Audrey Poitras called the decision “extremely disappointing” but said the MNA “remain committed to our ‘hunt for justice’ in this province.”

The MNA has reached out to the Alberta government to resume talks that were put on hold as the Métis organization pursued the Hirsekorn test case.

And while the SCC refused to revisit the Powley decision in light of the nomadic nature of Métis on the prairies, MNA counsel Jason Madden says the Métis in Alberta will be going to the negotiation table having made gains.

“The Hirsekorn case, from the Alberta Court of Appeal, is where the law currently stands,” he said, “but it doesn’t modify the Powley case.”

The Hirsekorn decision recognized that Métis communities are regional and not restricted to the settlements that exist in the province. It also recognized Métis presence along the North Saskatchewan River in central Alberta, which the current harvesting policy does not do.

While the Alberta Court of Appeal has given the Métis a broader sense of presence in the province, it still isn’t as broad an interpretation as the MNA had hoped for. The Hirsekorn case was a test case the MNA chose to go forward with to challenge the province’s restrictions on harvesting and hunting rights for Métis.  Garry Hirsekorn was charged
and convicted in the lower court with hunting in the Cypress Hills in 2007. He paid a $700 fine for each count.

Hirsekorn was not the only Métis hunter charged by the province.  However, the Crown decided not to proceed with further action until the outcome of the Hirsekorn case.

Brendan Cox, spokesperson for Alberta Justice and Solicitor General, says that 16 others charged under the Wildlife Act and one charged under Fishery regulations, which are in case management, are currently being reviewed.

 “Each one is being looked at individually based on specific circumstances and since these matters are before the courts, I can’t comment any further than that,” said Cox.

The Hirsekorn test case was a challenge to the province for changing its policy on Métis harvesting rights. Under the Klein government an interim Métis harvesting agreement had been negotiated with the MNA and implemented in 2004 permitting Métis to subsistence hunt, trap and fish on Crown lands and private lands (with permission) and any body of water in the province; applicable licensing was required. However, in 2007 the IMHA was unilaterally cancelled and a new policy implemented by the government which severely restricted where Métis could harvest and excluded harvesting rights for Métis living in southern Alberta.

Madden is “cautiously optimistic” that the province will be willing to negotiate further “to see if there’s more we agree on than we disagree on from when we initially started the Hirsekorn case….
Hopefully we can move the yardstick forward through negotiations as opposed to going right back to court.”

While discussions are underway, Madden says the Métis will respect the court’s ruling.

If discussions with the province breakdown, the MNA could pursue legal action again.  That decision will be taken to membership at the MNA’s annual general assembly in August.

Madden is uncertain whether any of the Métis hunters who are still awaiting court dates can be used as another test case.  It will depend on the points of disagreement, what the charges pending are, and where the harvesters were when charged.

“I stand by our position that we have rights throughout Alberta as a part of the larger Métis Nation. We will continue to fight for the recognition of our rights throughout the province, but we will need to develop new strategies and approaches as well as respect the law as it currently stands in Alberta while we continue to push forward,” wrote Poitras.