Still guilty, but fight still on over hunting rights

Citing new reasons, but coming to the same conclusion, the Alberta Court of Appeal has upheld the decision rendered by two lower courts that found Métis harvester Garry Hirsekorn guilty of hunting in southern Alberta without a license.

In a decision rendered July 4, Justice Marina Paperny stated, “… The trial judge (and) the appeal judge … both concluded that no Métis community had a sufficient presence in the Cypress Hills area to ground the asserted right to hunt there. I have reached effectively the same conclusion (although … for slightly different reasons).”

It is the varying interpretations of the Powley test that has Métis Nation of Alberta counsel Jason Madden encouraged that the MNA will be granted leave to appeal to the Supreme Court of Canada.

“Each level of court has overturned the one below so … clearly there’s uncertainty about the law in this area and we think that’s ripe for the Supreme Court of Canada to provide some clarity on this important issue,” said Madden.

He also points out that how Manitoba and Saskatchewan have ruled in harvesting cases “can’t be squared with how Alberta is interpreting Powley.”

Paperny stated in her ruling, “Here, we have somewhat the reverse of Powley.”

And saying that hunters of the plains don’t have harvesting rights because of how the courts are interpreting Powley “is just perverse,” said Madden.

“Since Powley we’ve been struggling with how do you apply a settlement-specific model for Métis harvesting rights to Métis of the prairies. I think the courts have been struggling with it, in particular the Alberta courts have been and … so we think it’s timely that the court look at the Powley case again through the lens of how do you apply it to the Prairie Métis.”

The Powley case, which resulted in a decision being rendered by the Supreme Court of Canada in 2003, established that Métis had the right to hunt in an area where there was once a site-specific historic Métis community, in this incident Sault Ste. Marie.

Hunters ranged over an area but still returned to the community. The Hirsekorn case is attempting to establish that the historical nomadic nature of the MÈtis people, who followed the buffalo throughout the plains, provides harvesting rights in central and southern Alberta.

In rendering her decision on the appeal, Paperny looked at four of the 10 parts of the Powley test.

“The core question on this appeal is whether the asserted right, characterized as hunting for food in the environs of the Cypress Hills, was integral to the distinctive culture of the plains Métis,” wrote Paperny.

She rejected the trial judge’s approach that in order to establish a harvesting right a Métis settlement in southern Alberta was required. She then overruled the previous appeal judge’s interpretation that the test required Métis to show that hunting for food at the site-specific location of Cypress Hills was integral to Métis culture.

“The shift in focus, from asking whether the “place” is integral to a culture, to asking whether an integral practice was carried out in the place, may make a material difference to a nomadic people who may find it next to impossible to gather evidence of frequent and consistent use of a specific tract of land,” she wrote.

However, even with this difference in interpretation, Paperny ruled that the Cypress Hills area was neither ancestral lands nor traditional territory for the Métis. Even though she recognized there was some evidence of Métis births, hunting and presence prior to effective control, this was not sufficient to meet her reformulated test.

On the other three points used by Paperny to undertake the Powley test, all three levels of court agreed.

They held that a Métis settlement did not have to exist in order for hunting rights to exist. However, none agreed that hunting rights could be established in as broad an area as central and southern Alberta or the “plains,” but instead had to be specific to the Cypress Hills area.

As well they all agreed that since there was not sufficient evidence of Métis hunting in the Cypress Hills prior to effective control, there was no need to make a determination with respect to the historic Métis community at issue and whether the was one regional Métis community, encompassing the plains, or a smaller community encompassing a smaller region.

Also they agreed that the arrival of the Northwest Mounted Police in 1874 was when European control was established in the area. According to the Powley test, for a Métis historical community or presence to exist it must pre-date effective European control.
Evidence provided by the Crown, and accepted by the courts, indicated that Métis presence did not pre-date effective European control.

But what the whole issue is about, said Madden, is the migratory nature of hunting.

“We say with a migratory herd, it can’t be an issue of frequency and repetitiveness, and same location. Because it won’t work.
They won’t have rights. If that is ultimately what you need, then the Métis on the prairies won’t end up having rights, because they didn’t look like that historically.”

MNA needs to file for a leave to appeal by Sept. 4. If leave is granted, the Supreme Court could hear the appeal in Spring 2014, although Madden said a Fall 2014 sitting was more realistic.