In L'Hirondelle v. Alberta (Sustainable Resource
Development), 2013 ABCA 12, the Alberta Court of Appeal
confirmed the Powley test remains applicable to members of
Métis Settlements established under the Alberta
Métis Settlements Act. In doing so, the Court
overturned a 2009 decision of the Alberta Provincial Court that had
found that because of Alberta's unique history and legislative
intervention in the 1930s, Alberta Métis Settlement members
were prima facie entitled to Métis rights.
The appellant, 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 asserted a constitutionally protected right to
fish for food and applied for a Métis fishing licence.
He was refused the licence by an Alberta Fish & Wildlife
officer who, acting in accordance with Alberta's Métis
Harvesting Policy, required that Mr. L'Hirondelle provide
additional proof, beyond his Métis settlement card, that he
was connected to a historic Métis community.
Mr. L'Hirondelle brought a judicial review application of
the Fish & Wildlife officer's decision, seeking an order
quashing the decision and directing that he be issued a
Métis domestic fishing licence. The chambers judge denied
the application, principally on the basis that the decision was not
subject to judicial review.
The issue underlying the appeal was whether the Government could
"look behind" an individual's Métis settlement
identification card, or whether it had to effectively accept the
membership decisions of the Alberta Métis Settlement
communities as proof of Powley status.
Even though the chambers judge made a number of errors of law
(e.g., the officer's decision could be judicially reviewed),
the Court dismissed the appeal.
Court of Appeal's Decision
The Court of Appeal overturned earlier provincial court
authority (R. v. Lizotte, 2009 ABPC 287) that had accepted
that membership in a statutory Métis Settlement was
sufficient to prove entitlement to constitutionally protected
Métis rights. The Court of Appeal disagreed, observing
the test for membership in a Métis settlement was not
equivalent to the Powley test, and the criteria laid down
in Powley was what was required. In Powley,
the Supreme Court of Canada had not created a rule that the
government must have only one list of Métis status holders
to be used for all purposes. Notwithstanding the appellant's
Métis settlement membership, he was not automatically
entitled to section 35 rights, and the onus fell to him to prove
his rights-bearing status. The Fish & Wildlife officer was
entitled to delay the issuance of a Métis fishing licence,
pending further proof of the appellant's status.
From a practical perspective, the Court of Appeal in
L'Hirondelle is clear that the burden of proof is on
individuals—even those members of an Alberta Métis
Settlement—to prove their Métis rights-bearing status
on a case-by-case basis. The Court found this burden was not unfair
as there is nothing improper about "jealously guarding
entrenched constitutional rights". The process ensures that
those rights will not be "watered down" by the
recognition of unentitled claimants.
The Court expressly refused to comment on the constitutionality
of the Alberta Métis Harvesting Policy. The Policy,
however, will likely be under scrutiny by Alberta's highest
court later this year in the upcoming appeal of R. v.
Hirsekorn, 2011 ABQB 682.
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