Alberta court ruling major blow to Métis harvesting rights

Hoping to see substantial ground gained for Métis harvesting rights, the 50 or so Métis from across Alberta who crowded into Medicine Hat Provincial Court on Dec. 1 sat in stunned silence as Judge Ted Fisher read out his 11-point decision against the Métis argument.

In the end, defendant Garry Hirsekorn was found guilty of two counts under the Alberta Wild Life Act and fined $350 for each count, but he was able to retain both his firearms and his hunting privileges.

Hirsekorn’s charges stem from an incident in 2007 where he killed a mule deer near Elkwater in the Cypress Hills area of southern Alberta. Hirsekorn’s case, and a number of others yet to be resolved, were all part of planned action by the Métis to bring attention to harvesting rights that the Alberta government said were limited to areas around established Métis settlements, which are located north of Edmonton.

“Seems a guy has to move north to be a Métis,” said Hirsekorn, following the verdict. “I’m disappointed.”

So, too, was Métis National Council President Clem Chartier, a witness in the case and who attended court to hear the verdict. “I’m disappointed that on every issue there was a total loss,” he said.

Chartier said the Hirsekorn case added one more element to the fight that shows that Métis people were mobile and that the entire northwest was part of the Métis nation homeland. He said harvesting victories in Saskatchewan, Manitoba and Ontario were “pieces of the puzzle. Eventually we’ll be able to put all the pieces together. Here in Alberta are all the pieces of the puzzle.”

The media and Fish and Wildlife officials had been informed of the Hirsekorn hunt. Fisher held that because the hunt was used for political purposes, Hirsekorn could not make the argument he was hunting for sustenance or ceremonial purposes.

Judge Fisher stated that he would not rule on the claim that there was a rights-bearing northwest Métis community, which encompassed Métis across the Prairie Provinces, but would only decide on Métis harvest rights in central and southern Alberta.

Fisher took more than 60 minutes to present his ruling, which admonished the Métis Nation of Alberta for proceeding in criminal court on their rights case instead of taking the issue to a civil court. He said that the strategy to invoke Section 35 of the Canadian Constitution, which proclaims Aboriginal rights, against the province’s Wild Life Act was not appropriate in a criminal proceeding.

Fisher used the points established by the 2003 Powley ruling to refute the Métis hunting argument and conclude that with no historical Métis community in southern Alberta, Hirsekorn was guilty of illegal hunting.

Chartier said he was surprised by a number of Fisher’s findings, including the claim that Sect. 35 couldn’t be used to refute the Alberta Wild Life Act in criminal court.
“Saying people who were unlawfully, unconstitutionally charged don’t have the right to use the highest law of the land to aid in your defense is to me something that doesn’t abide by the rule of law,” said Chartier, who is also a lawyer.

The loss was not unexpected, said Métis 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 represented Steve and Roddy Powley in the case that determined Métis had an Aboriginal right to hunt, a right that was infringed by Ontario game laws. Powley now serves as a yardstick for Métis rights rulings.

Teillet and Madden have not only successfully fought harvesting charges in Ontario, but in Saskatchewan and Manitoba too.

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.

Métis Nation of Alberta President Audrey Poitras said the decision will be appealed.

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

There are 25 Métis in Alberta awaiting trial on illegal hunting charges. Madden expected some movement on the part of the Crown because of Fisher’s acknowledgement that there is a historical rights-bearing Métis community in the North Saskatchewan River area of Alberta, and some of the Meetis facing charges hail from that region.

The rest are with a case management judge and may not proceed pending a decision on the Hirsekorn appeal.
A leave to appeal must be filed in 30 days with the Court of 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.

When the court proceedings began in April 2009, Hirsekorn was one of three Métis men facing charges. Prior to the trial ending, Bruce Bates couldn’t continue, citing personal reasons. He plead guilty to the charges. Accused Ron Jones took his life and the life of his partner in a murder-suicide shortly after the trial concluded.

Photo: Shari Narine

Photo caption: Lawyer Jason Madden, flanked by Métis Nation of Alberta President Audrey Poitras (left) and lawyer Jean Teillet, addresses media and disappointed Métis in the cultural room of the Miywasin Centre following the guilty verdict handed down in Medicine Hat Provincial Court.