On January 24, 2014, the Supreme Court of Canada dismissed a leave to appeal application in a Métis rights case from Alberta. As a result, the Alberta Court of Appeal’s decision, which upheld a finding that the existence of a rights-bearing Métis community in southern Alberta had not been established on the facts, remains the binding authority in Alberta.
The case arose out of efforts by the Métis Nation of Alberta to seek recognition of the existence of Métis communities in Alberta with constitutionally protected Aboriginal rights. When efforts to reach a negotiated agreement with the Government of Alberta failed, the Métis Nation of Alberta decided to mount a test case to have those rights recognized by the courts. Garry Hirsekorn, an Alberta Métis, shot a mule deer on the western edge of the Cypress Hills, in southeastern Alberta, in the fall of 2007. Mr Hirsekorn was duly charged with hunting deer outside of open season without a permit, in violation of the Alberta Wildlife Act. As a defence to the charge, he asserted that his Métis ancestry gave him the constitutional right to hunt for food across the plains of southern and central Alberta, and that the Wildlife Act unjustifiably infringed that right. In order to establish that right, he had to demonstrate that a Métis community existed in southern Alberta and that he was part of that Métis community. Mr. Hirsekorn was unsuccessful at trial, on appeal to the Alberta Court of Queen’s Bench and on further appeal to the Alberta Court of Appeal. With the Supreme Court refusing to hear the appeal, the Court of Appeal’s decision remains the current state of the law on Métis communities and rights in Alberta.
Court of Appeal Judgment
The Court of Appeal judgment focused on four elements of the test articulated in the Supreme Court of Canada’s landmark decision R v Powley. Powley laid out a set of criteria to not only define what constitutes a Métis right under section 35(2) of the Constitution Act, 1982, but also who is entitled to those rights. The Powley elements discussed in the Court of Appeal judgment included:
a) the proper characterization of the hunting right claimed by the appellant;
b) the definition of the historical Métis community in Alberta;
c) the relevant time frame for the establishment of effective European control in the area; and
d) the appropriate analysis to assess whether the right asserted here was integral to the distinctive culture of the Métis people prior to European control.
The Court of Appeal’s decision turned on the last element. On this point, the Court found that there was no real Métis presence in the Cypress Hills area prior to the establishment of effective European control in 1870, and that southern Alberta was not, at the time, part of the traditional territory of the Métis. However, the Court took a slightly different approach to the Powley analysis in coming to this conclusion. The Court looked at whether the historic Métis community included the disputed area within its ancestral lands or traditional hunting territory, noting that this threshold better captured the territorial nature of the practices and traditions of a nomadic people than the concept of a “consistent and frequent pattern of usage” on a specific piece of land. Despite using this more progressive approach to the Powley analysis, the Court found that the evidence fell short of establishing the existence of a Métis community, and by extension a Métis aboriginal right to hunt, in the Cypress Hills area.
The Court of Appeal decision and the Supreme Court’s dismissal of the leave application are important in at least two senses. First, the situation remains that no Métis communities have been legally recognized in Alberta to date, and as a result no constitutionally protected Métis Aboriginal rights have been legally recognized. However, it should be noted that the case focussed on Métis in southern Alberta, and its conclusions may not be applicable in northern parts of the Province where Métis communities have been established for longer periods. Second, the decision has not clarified whether a Crown duty to consult Métis exists in Alberta. While constitutionally protected Métis rights have not to date been recognized by the courts or by government in Alberta, the duty to consult can be triggered by assertions of rights even if not legally recognized. Métis groups, particularly in northern Alberta, continue to assert that they have constitutionally protected rights and therefore must be consulted by government about decisions affecting their rights. The Hirsekorn case does not, unfortunately, provide guidance on this point.
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