The Alberta Court of Appeal in R. v. Hirsekorn, 2013 ABCA 242 recently upheld restrictions on Métis hunting rights in the Cypress Hills area of southern Alberta. Mr. Hirsekorn was convicted for shooting wildlife outside of the regular season and possessing wildlife without a valid permit when he was caught shooting a mule deer near Elkwater, Alberta on October 20, 2007. The main issue to be decided by the Court of Appeal was “whether the asserted right, characterized as hunting for food in the environs of the Cypress Hills, was integral to the distinctive culture of the plains Métis.” (para. 70). It was not disputed that hunting for buffalo on the plains or hunting for food generally was integral to the Métis culture, the question was whether hunting in the environs of the Cypress Hills was integral to the culture.
The Court of Appeal undertook a lengthy analysis of the law (including utilizing the test set out by the Supreme Court of Canada in R. v. Powley, 2003 SCC 43) while recognizing the unique challenges presented by a nomadic people who had a territorial nature of practice and traditions. Ultimately, the Court of Appeal concluded that the plains Métis had a territory with which they followed the migratory herds of buffalo and that this territory shifted as the herds moved. However, for most of the Métis history, that territory did not include Cypress Hills, Alberta and environs. To the contrary, there was evidence that the Cypress Hills area was considered dangerous and was actively avoided by the Métis and other groups until the arrival of the North West Mounted Police in the 1870’s. Accordingly, that area could not have been integral to Métis hunting culture before 1870 and Mr. Hirsekorn’s conviction was upheld.
According to their website, the Métis Nation of Alberta, is of the view this case is of significant importance to the development of Métis jurisprudence and is a test case for the entire province. It intends to appeal the case to the Supreme Court of Canada. The case arose from the Alberta government’s cancellation of the Interim Métis Harvesting Agreement in July 2007. As a result, the Métis in August 2007 passed their own harvesting rights action plan and policy. Community hunts were planned and executed in the Fall of 2007 and Mr. Hirsekorn was charged during one such hunt.