On June 20, 2013, the Supreme Court of Canada denied leave to appeal the decision of the Alberta Court of Appeal in L’Hirondelle v. Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12. As a result, the finding of the Court of Appeal that membership in an Alberta Métis Settlement is not conclusive proof of an entitlement to constitutional Aboriginal rights applies in Alberta.

Background

Robert L’Hirondelle is a member of the East Prairie Métis Settlement, one of eight statutory settlements under the Alberta Métis Settlements Act. Mr. L’Hirondelle applied for a Métis fishing licence on the basis that, as a member of a Métis Settlement, he was entitled to such a licence as a matter of right. When a Fish and Wildlife Officer refused to issue a licence to Mr. L’Hirondelle until he could provide additional proof of a connection with a historic Métis community, he applied for judicial review of the decision.

On judicial review, the chambers judge denied the application. He held that the relief sought was not available to Mr. L’Hirondelle and declined to engage any substantive arguments.

Court of Appeal Decision

When the case came before the Court of Appeal, the primary issue was whether the government could look beyond a Métis Settlement identification card for further proof of a connection with a Métis community, or whether membership in a Settlement was decisive proof of an entitlement to constitutional Aboriginal rights. Ultimately, the Court determined that, based on the test from R. v. Powley, 2003 SCC 43, Mr. L’Hirondelle had failed to establish that he was entitled to a fishing licence as a right on production of his Métis Settlement membership card and his appeal was dismissed.

In coming to its decision the Court explicitly overruled the earlier Provincial Court authority, R. v. Lizotte, 2009 ABPC 287. The Court found that the Lizotte decision improperly undermined the differences between the Powley analysis and the requirements for membership in a Métis Settlement. Although membership in a modern Métis community was relevant for the purposes of the Powley analysis, it did not automatically entitle a claimant to constitutional Aboriginal rights. The onus fell on Mr. L’Hirondelle to prove rights-bearing status.

Implications

The Court of Appeal’s judgment put the burden on the claimant to establish the requirements of the Powley test in order to reap the benefits of section 35 of the Constitution Act, 1982. Simply providing proof of membership in a Métis Settlement was insufficient. The Supreme Court, by declining to hear the appeal, upholds this higher standard.

In its decision, the Court of Appeal also expressly declined to comment on the constitutionality of the Alberta Métis Harvesting Policy. Although the Supreme Court has also declined to address this issue, the Policy is before the Alberta Court of Appeal in the appeal of R. v. Hirsekorn, 2011 ABQB 682.