- R. v. Hirsekorn, 2013 ABCA 242, Alberta Court of Appeal (Paperny, McDonald and Macleod JJ.A.) 4 July 2013
- July 18, 2013
- Law Firm: Borden Ladner Gervais LLP - Toronto Office
The Alberta Court of Appeal dismissed an appeal from a Métis hunter arising from his conviction for hunting without a permit. The panel stated that this appeal raises various issues regarding the application of the Powley test to the Métis community of southern Alberta including:
the proper characterization of the hunting right claimed by the appellant, the definition of the historical Métis community in Alberta, the relevant time frame for the establishment of effective European control in the area, and the appropriate analysis to assess whether the right asserted here was integral to the distinctive culture of the Métis people prior to European control.
A major issue was how the Powley test applies to a largely nomadic people. The Court summarized its decision:
... the right asserted was properly characterized as being the right to hunt for food in the Cypress Hills and environs. The evidence supports the conclusion that no Métis community, however defined, had sufficient presence in that area leading up to the time of effective control. Thus the question as to how to define the "historic community", or which of several regional Métis communities had those rights, cannot logically be answered. The evidence also supports the conclusion that effective control for the purpose of the Powley test occurred in 1874. A purposive approach to deciding whether a practice is integral to a distinctive culture poses the question: did the historic Métis community include the particular area within its ancestral lands or traditional hunting territory? In this case, the answer is no.