First Nations weigh in on Métis harvesting rights

The Blood and Siksika First Nations have been granted limited intervener status in the upcoming appeal of the Métis harvesting decision.

“It is our position this is Blackfoot territory and we will protect and hold it sustainable for our members,” said Blood Chief Charles Weasel Head.

In June, lawyers for Garry Hirsekorn and the Métis Nation of Alberta will argue in the Court of Queen’s Bench in Medicine Hat that the trial judge made a number of mistakes in delivering two guilty verdicts under the Wild Life Act related to harvesting in the Cypress Hills area, which falls within Blackfoot territory.

Although the Piikani Nation, a member of the Blackfoot Confederacy, is not part of the legal proceedings, Weasel Head said they have Piikani support and support from the Blackfeet First Nation, in Montana, also a member of the confederacy.

Jason Madden, counsel for Hirsekorn and the MNA, said giving Métis harvesting rights in the traditional Blackfoot territory does not take away from First Nations’ rights.
“Their concern . . . is if you recognize that Métis rights are there then our rights may be negatively affected or diluted or lesser than what they currently are. But we don’t agree with that for the sole issue that just because you recognize other rights doesn’t mean you take away rights from other people. It’s not a zero sum game,” said Madden.

The Blood and Siksika have been given one hour each to make oral presentations during the June 21-24 hearing.
While the time restriction disappoints Weasel Head, Madden is hopeful that the limited time will allow the main issue to remain clear.

“This is not a case about First Nations rights, this is a case about Métis rights and (the First Nations) can come in and comment and provide their suggestions, but they don’t get to take over the case or reframe it,” said Madden.

The MNA will be presenting a three-point argument to the court in June.

“We think the judge misapplied the Powley test because what was required is for the Métis to show their customs, practices and traditions included harvesting in that area,” said Madden.

Madden holds that Judge Ted Fisher interpreted Powley narrowly and his December ruling was contrary to previous ones rendered in Manitoba and Saskatchewan which also drew on Powley. Fisher leaned heavily on the lack of a permanent Métis settlement in the region.

The MNA will also argue Fisher’s interpretation of “effective control” and the role of the Northwest Mounted Police, which was to control the whisky trade and not to impact the Métis way of life.

The third point is Fisher’s ruling that collateral attack against the province’s Wild Life Act by invoking Sect. 35 of the Constitution, which proclaims Aboriginal rights, was not appropriate in a criminal proceeding. Hirsekorn’s actions were part of a larger political campaign by MNA to force the issue of Métis harvesting rights.

Madden said the appeal will be “challenging. We’ve always known that we’re forcing the issues that haven’t been dealt with in Alberta before. We’re making new law.”

Madden said he wouldn’t be surprised to see the matter go all the way to the Supreme Court of Canada as Alberta courts “are conservative in their approaches vis-à-vis Aboriginal rights.”