Canada: Alberta Court Of Appeal Holds That Membership Under The Alberta Métis Settlements Act Is Not Sufficient To Establish S. 35 Métis Rights

L'Hirondelle v. Alberta (Sustainable Resource Development), 2013 ABCA 12

Background and Procedural History

Métis rights are "recognized and affirmed" by s. 35 of the Constitution Act, 1982.  In R. v. Powley, 2003 SCC 43, the Supreme Court of Canada set out a ten-step legal test to determine whether a Métis individual is entitled to s. 35 rights.  

In L'Hirondelle, the question arose as to whether or not qualification as a Métis under Alberta's Métis Settlement Act ("MSA") can be a proxy for the Powley test and give rise to s. 35 rights. The MSA contains a separate test — that is similar but distinct from the Powley test — respecting an individual's qualification as Métis for the purposes of establishing an entitlement to live on one of Alberta's eight Métis settlements.

This issue had been addressed previously in R. v. Lizotte, 2009 ABPC 287, a case that concerned a Métis settlement member who sought a right to hunt outside the boundaries of his Settlement as a common law or "Powley" Métis entitled to s. 35 aboriginal rights. In that case, Alberta took the position that because the Powley test was more rigorous than the MSA test, it was entitled to demand that "Settlement Métis" prove the additional elements of the Powley test for the purpose of establishing an entitlement to s. 35 rights, specifically the requirement of an ancestral connection to a historic Métis community that is not of recent vintage. Judge Hougestol, after considering the legislative history of the MSA, held that the MSA application process was sufficiently rigorous to suggest that the legislature had intended that it be determinative of qualification as Métis in Alberta for all purposes. Judge Hougestol stated that Alberta's position suggested that the province "wants to create a parallel world of unnamed bureaucrats to analyze Métis genealogical records and second‑guess the work of the Settlements. This is inconsistent with [the MSA], and with common sense."

Although Alberta did not appeal the Lizotte decision, the issue arose again in when the appellant Mr. L'Hirondelle challenged the decision of a provincial licensing official who had denied him a domestic Métis fishing license. The denial was based on the view that Mr. L'Hirondelle's proof of membership in the East Prairie Métis Settlement, in and of itself, was not sufficient proof that Mr. L'Hirondelle was Métis for the purposes of establishing an entitlement to the s. 35 aboriginal rights intended to be accommodated by the issuance of a license. Mr. L'Hirondelle's application for judicial review was dismissed in a chambers decision on the grounds that there was "no judicial character to the decision whatsoever." Mr. L'Hirondelle appealed that decision to the Alberta Court of Appeal.


The court considered three questions on appeal:

  1. Should a distinction be drawn between policy and regulation in this case?
  2. Should the Lizotte decision be considered binding?
  3. Should membership in a Métis Settlement alone be sufficient proof of entitlement to s. 35 rights in Alberta?

With respect to the first question, the court considered Mr. L'Hirondelle's contention that the use of a policy that may infringe on aboriginal rights is at odds with the decision in R. v. Adams [1996] 3 S.C.R. 101, where the Supreme Court held that it is unreasonable to use an "unstructured discretionary administrative regime" which might infringe on aboriginal rights. Ultimately, the court held that the merits of the case should be considered, and it should not be decided on distinctions between policy and regulation.

With respect to the second question, Mr. L'Hirondelle relied on the Lizotte decision, arguing that because Alberta "knew" that the Lizotte decision was a "test case" and did not appeal the result, it must now follow Judge Hougestol's holding. The court disagreed, holding that "the Crown cannot be expected to appeal every decision it disagrees with, and it is not necessarily an abuse of process for it to raise an issue a second time in an unrelated case. The parties cannot self-declare a case to be a 'test case,' and thereby enhance the authority of Provincial Court decisions to those of the Supreme Court of Canada."

On the third question, the court considered the appellant's contention that "the government has some role to play in establishing a list of Métis status holders, but once such a list is established, the government must accept that list for all purposes." The appellant relied on the Supreme Court's comments in the Powley decision that "it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified" and that "the creation of appropriate membership tests before disputes arise is an urgent priority."

The court rejected this argument, opining instead that the Powley decision "especially disclaimed setting out any definitive rules about determining Métis status." The Court of Appeal noted in this regard the Supreme Court's comments in Powley that the determination of Métis status would have to continue 'on a case-by-case' basis." In so holding, the court also expressed the view that "there is nothing in [the Powley decision] to support the concept that the government may only speak once on Métis status, regardless of the use to be made of any resulting list of Métis."

Mr. L'Hirondelle also argued that his position was supported by the Supreme Court's decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37. In particular, Mr. L'Hirondelle cited the Supreme Court's comment that "the self-organizing and standardization of the Métis community in Alberta is precisely what the Alberta legislature and the Alberta Métis have together sought to achieve in developing, agreeing upon and enacting the membership requirements found in the Métis Settlements Act and challenged here." This passage, he argued, supported his view that that once membership lists are created, they must not be undermined. The court rejected this argument as well, holding instead that it did not consider the Supreme Court's statements in the Cunningham decision as dispositive of the issue of whether multiple lists could be created for different purposes.

The effect of this decision is that Alberta is entitled to demand further proof to satisfy the Powley test from Métis Settlement members who wish to exercise s. 35 rights (or rights granted pursuant to "accommodated rights" regimes) outside Settlement boundaries.  

Mr. L'Hirondelle has 60 days to seek leave to appeal this decision to the Supreme Court of Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.