Alberta court ruling major blow to Métis harvesting rights

Hopes were dashed on Dec. 1 that a judge’s decision would open the borders between Saskatchewan, Manitoba and Alberta for Métis harvesting.

Medicine Hat Provincial Court judge Ted Fisher stated he would not rule the claim that a northwest Métis community held harvesting rights encompassing an area across the prairie provinces. Fisher’s decided that Métis harvesting rights only covered central and southern Alberta. The judge took over 60 minutes to present his 11-point ruling which admonished the Métis Nation-Alberta (MN-S) for proceeding criminally instead of civilly and ended in using the points established by the 2003 Powley ruling to refute the Métis argument. Fisher concluded that with no historical Métis community in southern Alberta, Garry Hirsekorn was guilty of two charges under the Wild Life Act.

Hirsekorn’s charges stem from a 2007 incident in which he killed a mule deer near Elkwater, in the Cypress Hills area. The hunt was part of provincial Métis action bringing attention to the harvesting rights Alberta claimed were limited to areas around established Métis settlements located north of Edmonton.

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

Hirsekorn was fined $350 on each count, his hunting privileges were not suspended, and he was allowed to retain his firearms.

“Seems a guy has to move north to be a Métis,” said Hirsekorn, who was visibly nervous prior to the trial. “I’m disappointed.”

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.

More than 50 people crowded into the court room to hear Fisher’s ruling. When Fisher concluded with the guilty verdict, one Métis man in the stunned-silent room turned to the other and said, “We lost.”

But the loss was expected, said Hirsekorn’s lawyers Jean Teillet and Jason Madden, who spoke to the media and Métis members after the verdict was rendered.

“We knew going into this that we were trying to open up the Powley box a little bit further and clearly Judge Fisher didn’t want to open up the Powley box at all,” said Teillet.
It was Teillet who successfully fought the Powley case, which now acts as a yardstick for Métis rights rulings. Teillet and Madden have successfully fought harvesting charges in Saskatchewan, Ontario and Manitoba.

Victories were coming “hectare by hectare 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,’” said Madden.

MN-A President Audrey Poitras said the decision will be appealed.

“Our forefathers fought for every step of the way to get the recognition that we deserve and we will continue to fight. There’s no doubt about it,” said Poitras.

Métis Nation council President Clem Chartier, who was in attendance for the verdict, said the Hirsekorn case had added one more element to the fight, showing that Métis people moved across borders and that the entire northwest was part of the Métis nation homeland.

“I’m disappointed that on every issue there was a total loss,” said Chartier.

Madden said Fisher’s acknowledgement that there is a historical rights-bearing Métis community in the North Saskatchewan area could impact some of Alberta’s 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 further pending a decision on the Hirsekorn appeal.

A leave to appeal must be filed in 30 days with the Queen’s Bench in Calgary. A civil case was filed, but Teillet said the decision to proceed criminally was made because criminal proceedings involve less time and money.

If the criminal case goes all the way to the Supreme Court of Canada, Madden said costs could climb as high as $1 million.

Photo caption: Sheila Sentes (middle) and Shirley McDonald (right) contribute to the Hirsekorn fine collection begun by Karen Collins. Said McDonald, “I don’t think Garry should have to pay. He should have been able to hunt. The decision was not a good one.”