Harvesters push the boundaries of provincial law

A decision by the Alberta Provincial Court could give Métis the right to hunt and harvest across provincial borders.

“(The case) deals with the issue of: Can Métis move between different parts of the Métis nation and still have harvesting rights,” said Jason Madden, co-counsel for the Métis Nation of Alberta.

The trial of Ron Jones and Gary Hirsekorn wrapped up after three days of closing arguments in late June at Medicine Hat Provincial Court. Because one of the two Métis men involved hails from Manitoba, Madden said the judge’s decision could do away with borders on the Plains in Alberta, Saskatchewan and Manitoba when it comes to Métis rights for hunting and harvesting.

“That could be a pretty significant new dynamic to the case,” said Madden.

The two men were charged with hunting without a license in the Cypress Hills and Pincher Creek areas in 2008.

The verdict was to be rendered in late October this year, but the decision has been delayed until Dec. 1.

Madden presumed the delay was due to the length of the trial, which lasted 45 days. There were more than 1,000 documents presented, and a high number of expert witnesses who testified.

Madden noted that he and co-counsel Jean Teillet have represented Métis harvesters in Ontario, Manitoba and Saskatchewan, but this is the largest case they’ve handled.

The MNA argued that throughout history, Métis have followed and harvested buffalo across the Plains, including central and southern Alberta.

“We are saying that Sect. 35 (in the Canadian Constitution) as we understand it, or what Powley says for Métis is what is protected in Aboriginal rights, is the customs, practices and traditions,” said Madden.

The Crown, Madden said, has a two-fold argument. First, that the Blackfoot, which inhabited the southern part of Alberta, were so fearsome that nobody, including the Métis, tracked buffalo in that area.

“The province (is also) saying that a Métis community has to be a dot on the map,” Madden said.

At issue is a Sustainable Resource Development policy which recognizes eight Métis settlements and 17 communities. Permission to hunt and harvest can be obtained from the government, but is restricted to 160 km in any direction around the Métis harvesters’ community. There are a number of other limitations set under the policy.

“Based on all the evidence put forth at trial, we believe that our history and Canada’s Constitution, support our harvesting rights,” said MNA President Audrey Poitras.
Poitras’ sentiments are echoed by Métis National Council President Clement Chartier, who said at the recent MNA annual general assembly, “I’m very confident the Jones/ Hirkeson case will be a tremendous success when the decision comes down.”

A ruling in favor of the Métis argument by Judge Ted Fisher has the potential of making new law.

“We’re recognizing that we’re asking the court to go further in this case than they have in past cases,” said Madden.

Whatever the decision, Madden doesn’t expect it to be clear cut.

“There will be nuances in it and we’ll have to go review it to understand what the court is saying,” said Madden.
If the court finds for Jones and Hirkeson, it will be a “huge win for the Métis,” said Madden, who wouldn’t speculate if the Crown would appeal.

However, Madden was adamant that if the ruling went against Jones and Hirkeson, MNA, who has paid the legal bill for the two harvesters, will appeal.

“If the trial judge doesn’t feel the law supports where we believe the law needs to go, our clients will definitely have to appeal this case to have these issues resolved,” said Madden.

There are 25 other Métis harvesters who are up on similar charges and who are awaiting the result of this case.