Supreme Court decision could help overturn harvester’s guilty verdict

A recent decision by the Supreme Court of Canada clearly supports the nomadic hunting rights of Métis on the western plains.

“We will be bringing the (Cunningham v. Alberta government) decision to the attention of the (Court of Queen’s Bench) and asking them if they want us to make an additional submission on it,” said Jason Madden, legal counsel for the Métis Nation of Alberta.

Madden delivered his five-point argument as part of court proceedings June 21-23 in Medicine Hat in the MNA’s appeal of the verdict rendered late last year in the case of Gary Hirsekorn, a Métis hunter.  Hirsekorn was found guilty in provincial court on two counts of harvesting without a license in an incident dating back to 2007 in the Cypress Hills area.

The SCC’s Cunningham decision, brought down on July 21, states in part that  in the early days, the Métis people were nomadic and it wasn’t until later years that they started establishing settlements based on hunting, trade and agriculture.

In appealing the verdict, Madden claimed that the trial judge interpreted the Powley definition of community narrowly. Madden holds that the SCC’s recent ruling on Cunningham agrees with the wider interpretation of a Métis community that followed the buffalo.

Along with the provincial government’s arguments, Chief Justice Wittmann also heard presentations from Siksika and Blood First Nations, both of whom had been granted intervener status and one hour each for presentations. Hirsekorn was hunting in what is traditional Blackfoot territory.

Madden said part of the argument presented by the two First Nations was that if harvesting rights were granted to the Métis it would impact on harvesting rights for the First Nations.  That would only be the case if the numbers of wild life were brought into question, said Madden.

“No one here is arguing this is a conservation issue,” he said.

Madden is hopeful Wittmann will deliver his decision before the end of the year.

Wittmann could overturn the lower court’s decision and throw out Hirsekorn’s guilty verdict.

“We’ve said all along that this is a test case for Alberta Métis although it’s been about Cypress Hills and Medicine Hat,” said Madden. “If the judge agrees with us, this takes more of a regional, broader approach to the idea of community. The legal principles would apply throughout the province.”

Presently provincial law allows Métis to harvest without a license within specific areas of northern Alberta.

But the implications of a successful appeal could stretch to Saskatchewan and Manitoba as well, especially in light of the Cunningham decision.

“If the court recognizes that someone from Manitoba can move into Alberta as long as they’re part of the Métis community they can exercise hunting rights, the reciprocal (would also be the case),” said Madden.

If Wittmann chooses to uphold Hirsekorn’s guilty verdict, Madden said the court battle would continue, with petition going to the Alberta Court of Appeal for leave to appeal.

“We remain committed to doing whatever is necessary in order to ensure the rights of our ancestors are protected for generations to come,” said MNA president Audrey Poitras.

Hirsekorn’s actions were part of a larger political campaign by the MNA to force the issue of Métis harvesting rights.