Métis harvesting rights receives major blow in guilty verdict

Métis Nation of Alberta president Audrey Poitras is “very disappointed” with Justice Ted Fisher’s findings in a Métis harvesting case that had the potential to bring about sweeping changes.

Instead, in a verdict that took over an hour to read in a packed Medicine Hat Provincial Court on Dec. 1, Fisher’s 11-point decision found almost entirely against the argument put forth by Métis lawyers Jean Teillet and Jason Madden.

Madden said the result was not unexpected. “We were going hectare by hectare (in previous decisions in other provinces) and we said, we need the court to look at this in a principled bigger view.

What we did in this case, we put the full picture in. Judge Fisher believed and used the Powley framework in order to say, ‘No what I have to look at is narrow.’”

In his decision, Fisher stated that he would not rule on the claim that there was a rights-bearing northwest Métis community, that would encompass Métis in Alberta, Saskatchewan and Manitoba. He limited his decision to Métis rights to harvest in central and southern Alberta.

Based on historical information presented throughout the 42-day trial, Fisher said there was no indication that the Métis were in that part of Alberta with any consistency prior to the Northwest Mounted Police coming in 1874.

Fisher also said 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. He said the case would have been better handled in civil court and at that time all Métis who were facing charges under the Wild Life Act could have been dealt with.

In the end, Garry Hirsekorn, who carried the banner for his people, was found guilty under two counts of the Wild Life Act and fined $350 for each. He was allowed to retain his firearms. His hunting privileges were not suspended.

“Seems a guy has to move north to be a Métis,” said Hirsekorn.

Hirsekorn’s charges stem from an incident in 2007 where he killed a mule deer near Elkwater. The hunt was part of provincial Métis action to bring attention to harvesting rights.

Supporters gathered at Miywasin Centre after the trial where a bucket was passed around to collect for Hirsekorn’s fine.

“I don’t think Garry should have to pay. He should have been able to hunt. The decision was not a good one,” said Shirley McDonald, who contributed.

When the proceedings began in April 2009, Hirsekorn was one of three Métis men facing charges. Bruce Bates cited personal reasons later, changing his plea to guilty. Ron Jones took his life and his partner’s in a murder-suicide after the trial concluded.

“I believe we have no option. We do need to appeal,” said Poitras.

Teillet said there were already a number of points being considered as part of the appeal argument. Fisher’s narrow interpretation of the Powley ruling, which stands as a benchmark for Métis rights, is one of those grounds. It is the Powley case which established Métis rights to be site-specific with historic ties needed.

The irony in the situation cannot be avoided. It was Teillet who argued the Powley case and got the verdict seven years ago. It is Teillet who now wants the court system to stop being restricted by the Powley findings.
Madden said not all was lost in Fisher’s decision. The judge’s acknowledgement that there is a historical rights-bearing Métis community in the North Saskatchewan area could impact some of the Métis harvesters who have cases pending.

“I can’t speak for the Crown, but they may assess some of them and based upon Judge Fisher’s decision may not proceed with them,” said Madden.

The rest are with a case management judge and may not proceed pending a decision on the Hirsekorn appeal.
Leave to appeal must be filed in 30 days with Queen’s Bench in Calgary.

Funds will be raised for further legal action, said Poitras.
“We’ve had a provincial council that has been very, very strong in moving our rights agenda forward,” she said.

Clem Chartier, president of the Métis National Council, who was in attendance to hear the verdict, said he anticipated funding help will come from Métis people and organizations outside of Alberta.

Madden said it usually costs $1 million to go all the way to the Supreme Court of Canada.

Teillet said a civil case has been filed. She said civil action takes longer and costs more than criminal proceedings.

Photo Caption: Métis Nation of Alberta president Audrey Poitras is flanked by lawyers Jean Teillet (left) and Jason Madden (right) in the cultural room of the Miywasin Centre in Medicine Hat.

Photo Credit: Shari Narine