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.

Decision

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.

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