Harvesting case Supreme Court bound says law professor

A University of Alberta law professor expects the Métis harvesting case to make its way to the Supreme Court of Canada.

On Feb. 7, 2013, the case will be heard by the Alberta Court of Appeal in Calgary.

“I’m hoping the Court of Appeal will find that the current harvesting policy in Alberta has been stepped back. But … regardless of what the Court of Appeal says, I think this is going to the Supreme Court,” Catherine Bell told the Standing Senate Committee on Aboriginal Peoples last month.

The committee was in Edmonton as part of its two-week tour through the four western provinces and the Northwest Territories.
The committee has been mandated with the task of examining the political and legal recognition of the collective identity and rights of Métis people in Canada. In that light, the harvesting policy adopted by the Alberta government and resulting in legal action undertaken by the Métis Nation of Alberta was discussed.
“Our case is addressing the broader issue of the Métis right to harvest (on an) all province-wide basis,” MNA senior executive officer Aaron Barner told the committee.

The MNA has argued that as Métis were a migratory population, they should have the right to hunt, trap and harvest throughout Alberta and not be restricted to a prescribed area which the province has done. According to the Alberta government, Métis are only allowed to harvest without a license in a 150-km radius around the settlement in which they reside. Those settlements are concentrated in the northern and central parts of the province. Garry Hirsekorn was charged in 2007 for hunting out of season and illegal possession of wildlife in the Cypress Hills area, where there are no Métis settlements. For a short period of time, the province had implemented an interim harvesting agreement which had allowed Métis to hunt across the province.  A change in provincial leadership in 2006 revoked that agreement.

The MNA has suffered setbacks at both the Provincial Court and the Court of Queen’s Bench. A 40-day trial in Medicine Hat in 2010 resulted in a guilty verdict being handed down to Hirsekorn by the Provincial Court. In November 2011 the Court of Queen’s Bench upheld that ruling.

“This will be our first opportunity for the Alberta Court of Appeal to consider how the Powley decision should be implemented in Alberta,” Barner said.

Powley defines community and the MNA is arguing that Alberta courts are misapplying the Powley definition, interpreting community in too narrow a fashion. Community must be considered in accordance to the nomadic lifestyle led by the Métis, who followed the buffalo across the plains, the MNA claims.

“When it comes to the right to hunt, I agree with what’s being argued (by the MNA),” Bell said. “When we look at the reality of Métis on the land and their nomadic lifestyle,  it becomes very difficult to draw clear boundaries such as north, south, east, west, this region, that region.”

When the case is heard in February, the Siksika and Blood First Nations will also get a chance to speak as they have been granted intervener status along with the Métis National Council.

“What we have going on in Hirsekorn is an intervention by the Blackfoot, who are concerned by the fact that an interpretation of Métis rights gives rise to their right to hunt for food in southern Alberta may interfere with (the Blackfoot) right arising from treaty,” said Bell. “And I think there are some legitimate concerns there that need to be worked through, but I’m not convinced that they have to be worked through in such a way to deny rights to the Métis.”

Photo caption: University of Alberta Law professor Catherine Bell answers questions from the Standing Senate Committee on Aboriginal Peoples about the Metis Nation of Alberta’s legal challenge for harvesting rights.