A justice for the Alberta Court of Queen’s Bench has upheld the conviction of Métis harvester Garry Hirsekorn stating that he is not prepared to rewrite the Powley test in order to make site specific mean a broader region.
In his 52-page decision, Chief Justice Neil Wittmann wrote, “It is ironic that the fact that Europeans assisted in the exercise of the right in this case has the effect of denying the right….it would be inappropriate to modify the Powley test at this level of court in light of the weight of Supreme Court of Canada authority.”
However, Wittmann’s decision in the case of Hirsekorn, charged with hunting out of season and hunting without a license, is not a complete loss for the Métis of Alberta who claim that Métis have the right to hunt without a license throughout the northwest part of the country.
“We are pleased that the appeal court overturned significant parts of the trial judge’s decision,” said Audrey Poitras, president of the Métis Nation of Alberta.
“Chief Justice Wittman overturned substantial parts of the trial judgement,” said MNA counsel Jason Madden. “The substance of (Wittmann’s) decision shows he clearly understood the issues and challenges we posed.”
Wittmann held that the MNA were allowed to argue constitutional issues in defence of Hirsekorn’s charge. Hirsekorn was part of wider action sanctioned by the MNA to bring to the political forefront the issue of Métis harvesting. Alberta Provincial Court trial judge Justice Ted Fisher had ruled that a constitutional argument was a collateral attack and could not be used in a criminal trial.
Madden said that Fisher’s ruling was “really worrisome. He (said) the Métis can’t argue in a regulatory prosecution that they have constitutional rights. There’s a big problem with that. The Constitution is the highest law of the land.”
Wittmann also overturned Fisher’s finding that Hirsekorn had not been hunting for food but instead had undertaken political action.
Wittmann wrote that Hirsekorn “testified that he was hunting according to the MNA action plan which was designed for Métis to exercise their food hunting rights publicly as a means of obtaining a judicial ruling that would secure Métis food hunting rights in southern Alberta.”
Fisher was also overruled in his finding that the MNA established too late in the proceedings that this case was about the northwest Métis as the historic rights-bearing community, and not only Alberta Métis.
“We have always argued in this case that this case is about the larger people, it’s about the Métis Nation, more particularly, about the buffalo hunters of the Plains.
We’ve never argued this is just about southern Alberta or this is just about Cypress Hills,” said Madden.
Madden noted that counsel had argued three separate cases successfully in Manitoba and Saskatchewan focusing on specific geographical areas. The decision was made to widen the argument in Alberta. Madden pointed out that Hirsekorn’s family was from Manitoba, but hunted in the southern plains.
The MNA will be appealing Wittmann’s ruling.
“He misstates and misapplies the Powley test. We think he does so because he says, in order to find that the plains are site specific enough to meet the Powley test, (he) would need to modify it. We don’t think the Powley test needs to be modified. We just think that you need to read the Powley test in a purposive manner and it allows you to find that mobile Aboriginal people may have larger traditional territories … of where they can harvest,” said Madden.
The MNA will be seeking leave to appeal to the Court of Appeal of Alberta in Calgary. Madden is confident the leave of appeal will be granted. He doesn’t expect the case to be in front of the Court of Appeal any earlier than spring 2012, but said fall 2012 was more realistic.