Canada: Alberta Court Of Appeal Dismisses Claim But Modifies Powley Test To Acknowledge Historic Mobility Of Plains Métis

Last Updated: August 1 2013
Article by Paul Seaman

R. v. Hirsekorn, 2013 ABCA 242 

Background and Procedural History

In 2010, Judge Fisher of the Alberta Provincial Court convicted Métis hunter Garry Hirsekorn of hunting outside a regular season and being in possession of wildlife without a valid wildlife permit contrary to the Alberta Wildlife Act.

Judge Fisher found that the political motive behind being charged and raising constitutional defenses to establish Métis rights in southern Alberta was an impermissible collateral attack on the Wildlife Act. He also held that the Métis had established no significant presence or historic rights-bearing community in what is now southern Alberta because the area was regarded by the Métis as "too dangerous" prior to Crown control. Consequently, Mr. Hirsekorn failed to meet the Supreme Court's test for Métis rights from R. v. Powley, 2003 SCC 43. Mr. Hirsekorn appealed.

The summary appeal judge reversed the trial judge's holding on collateral attack but did not accept Mr. Hirsekorn's argument that the Powley decision permitted the recognition of a rights-bearing mobile Métis community active throughout Alberta, or apply a different notion of the "pre-control" timeframe requirement in southern Alberta.

The Alberta Court of Appeal (the "Court") granted Mr. Hirsekorn the leave required to further appeal his case.


The primary issue dealt with by the Court was whether various elements of the Powley test had been purposively applied in a manner that acknowledged the circumstances of the "plains Métis" who were a mobile people that followed the buffalo.


The Court, relying on the Supreme Court's decisions in R. v. Marshall, 2005 SCC 43 and R. v. Côté, [1996] 3 S.C.R. 139, first acknowledged that their proper role in the proceeding was limited to relying on the trial judge's findings of fact, and evaluating whether he erred in applying the wrong test. If he did err in applying the wrong test, the Court was restricted to applying his findings of fact through the "lens" of the proper test.

The Court focused its analysis on four particular elements of the Powley test: (1) the characterization of the right, (2) the historic rights bearing community, (3) the relevant timeframe, and (4) whether the practice is integral to the distinctive culture of the plains Métis.

Characterization of the Right

Relying on the Supreme Court's decisions in R. v. Adams, [1996] 3 S.C.R. 101, R. v. Sappier; R. v. Gray, 2006 SCC 54, Mitchell v. Minister of National Revenue, 2001 SCC 33, the Court held that Aboriginal rights should be described with some degree of geographical specificity, and to not do so would create many practical concerns. Consequently the Court held that neither judge erred in characterizing the right as "the right to hunt for food in the environs of the Cypress Hills."

The Historic Rights-Bearing Community

The Court confirmed that the trial judge identified historic Métis community settlements in northern Alberta in and around Edmonton and at Red River.

However, the Court also noted that "neither the trial judge nor the appeal judge made findings as to which Métis made up the historical rights-bearing community relevant to this case, because both concluded that no Métis community had a sufficient presence in the Cypress Hills area to ground the asserted right to hunt there" and it adopted the same position in the absence of specific evidence with respect to the nature and extent of such a broad community. 

The Relevant Timeframe

The Court found no error in the trial judge's choice of relevant time frame of "late 1874" after the arrival of the NWMP.

Whether the Practice is Integral to the Distinctive Culture of the plains Métis

The Court considered this sub-issue to be the "core question" of the appeal. It noted that both the trial and summary appeal courts appeared to have imposed a somewhat impossible "threshold" that required Mr. Hirsekorn to "show not only that a particular practice (e.g. hunting) was integral to the distinctive culture of his or her ancestors, but that conducting that practice on a particular site was integral to the distinctive culture." 

After first acknowledging that the Powley case was decided in much different factual circumstances, the Court opined that the approach taken by the lower courts may not have adequately respected the Aboriginal perspective.

Consequently, the Court found the approach in the B.C. Court of Appeal took in William v. British Columbia, 2012 BCCA 285 (leave to appeal granted, 2012 SCCA No 399) to be of assistance in approaching this problem. William concerned a semi-nomadic First Nation people who tried to prove title to their ancestral lands on a "territorial" rather than site-specific basis. 

In further considering the problem an excessively site-specific approach would create for nomadic Aboriginal peoples, the Court examined the principles in R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Van der Peet, [1996] 2 S.C.R. 507 along with the reasoning in the William, Côté, Mitchell, and Adams decisions. The Court placed particular emphasis on Chief Justice Lamer's caution in Van der Peet not to define aboriginal rights in a fashion that would "preclude in practice any successful claim for the existence of such a right" because to take such an approach would be "contrary to the spirit and intent of s. 35(1)."

Ultimately, the Court held that allowing a more "territorial" approach to Métis rights was appropriate in the circumstances facing Mr. Hirsekorn for the following reasons:

[88] In this case, requiring the appellant to establish not only that the practice of hunting on the prairies was of central significance to the culture of the plains Métis (which it was), but also that hunting on a particular tract of land was of central significance, runs this risk. There is a danger of creating an artificial barrier to the recognition of the rights of nomadic people whose ancestral lands are vast if they always have to prove that hunting on a particular tract of land was of central significance to their culture. I prefer a modified approach that takes into account the aboriginal perspective and the distinctive way of life of the plains Métis.


[95] These descriptions, applied to this case, suggest the following threshold question: did the historic Métis community include the disputed area within its ancestral lands or traditional hunting territory? In other words, did they frequent the area for the purpose of carrying out a practice that was integral to their traditional way of life? That threshold, in my view, better captures the territorial nature of the practices and traditions of a nomadic people than the concept of a "consistent and frequent pattern of usage" on a specific piece of land.

[96] The shift in focus, from asking whether the "place" is integral to a culture, to asking whether an integral practice was carried out in the place, may make a material difference to a nomadic people who may find it next to impossible to gather evidence of frequent and consistent use of a specific tract of land. [emphasis added]

However, the Court, even when viewing the trial judge's findings of fact through the "lens" of a modified version of the Powley test that used a more "territorial" approach, and with regard to various factors relevant to the surrounding circumstances, was still unable to conclude that the plains Métis, if they existed as a historical community, carried out harvesting activities in southern Alberta prior to 1874.

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.

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