The Alberta Court of Appeal in R. v. Hirsekorn, 2013 ABCA 242
recently upheld restrictions on Métis hunting rights in the
Cypress Hills area of southern Alberta. Mr. Hirsekorn was convicted
for shooting wildlife outside of the regular season and possessing
wildlife without a valid permit when he was caught shooting a mule
deer near Elkwater, Alberta on October 20, 2007. The main issue to
be decided by the Court of Appeal was "whether the asserted
right, characterized as hunting for food in the environs of the
Cypress Hills, was integral to the distinctive culture of the
plains Métis." (para. 70). It was not disputed that
hunting for buffalo on the plains or hunting for food generally was
integral to the Métis culture, the question was whether
hunting in the environs of the Cypress Hills was integral to the
The Court of Appeal undertook a lengthy analysis of the law
(including utilizing the test set out by the Supreme Court of
Canada in R. v. Powley, 2003 SCC 43) while
recognizing the unique challenges presented by a nomadic people who
had a territorial nature of practice and traditions. Ultimately,
the Court of Appeal concluded that the plains Métis had a
territory with which they followed the migratory herds of buffalo
and that this territory shifted as the herds moved. However, for
most of the Métis history, that territory did not include
Cypress Hills, Alberta and environs. To the contrary, there was
evidence that the Cypress Hills area was considered dangerous and
was actively avoided by the Métis and other groups until the
arrival of the North West Mounted Police in the 1870's.
Accordingly, that area could not have been integral to Métis
hunting culture before 1870 and Mr. Hirsekorn's conviction was
According to their website, the Métis Nation of Alberta,
is of the view this case is of significant importance to the
development of Métis jurisprudence and is a test case for
the entire province. It intends to appeal the case to the Supreme
Court of Canada. The case arose from the Alberta government's
cancellation of the Interim Métis Harvesting Agreement in
July 2007. As a result, the Métis in August 2007 passed
their own harvesting rights action plan and policy. Community hunts
were planned and executed in the Fall of 2007 and Mr. Hirsekorn was
charged during one such hunt.
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