Robert L ’ Hirondelle Applicant - v. -, 2011 ABQB 646

Court of Queen’s Bench of Alberta Citation: L’Hirondelle v. Alberta (Sustainable Resource Development), 2011 ABQB 646 Date: 20111024 Docket: 1103 01869 Registry: Edmonton Between: Robert L’Hirondelle Applicant - and - Minister of Sustainable Resource Development (Alberta) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [1] Robert L’Hirondelle claims that because he is a member of the East Prairie Métis Settlement he is entitled to the aboriginal rightsprotected by the Charter s. 35.

He claims that the Minister of Sustainable Resource Development is obliged to recognize his Charterprotected aboriginal rights by issuing him a Métis Domestic Fishing Licence. [2] The Minister has adopted a policy which recognizes that Charter s. 35 aboriginal rights in respect of fishing are held bypersons who can show they have the characteristics identified by the Supreme Court of Canada in R. v. Powley 2003 SCC 43 ,[2003] 2 S.C.R. 207. Under the Minister’s policy, proof of membership in a Métis Settlement is relevant but not alone determinative.

Inparticular, membership in a Métis Settlement, the Minister submits, does not establish ancestral connection to an historic Métiscommunity in Alberta. According to the policy, to satisfy that Powley factor, a person would have to provide a genealogical historygoing back at least to the late 1880's showing where the person’s ancestors lived and when they lived there. The relevant portion of theMinister’s policy is reproduced as an appendix to these reasons.

[ 3 ] Mr. L ’ Hirondelle applied to a Fish and Wildlife Officer for a Métis Domestic Fishing Licence on October 1, 2010. He provided proof that he is a member of the East Prairie Métis Settlement in support of that application. The officer refused his application on the basis that he had not provided the proof required under the Minister ’ s policy. [ 4 ] The question of whether proof of membership in a Métis Settlement established entitlement to Charter s. 35 aboriginal rights was considered in the Provincial Court of Alberta in R. v. Lizotte , 2009 ABPC 287 ; [2009] A.J.

No. 1203 ; 484 A.R. 372; [2010] 1 C.N.L.R. 326 . In that case, Hougestol P.C.J. held that the requirements identified by the Supreme Court of Canada in Powley did not apply in Alberta. Rather, he held, it is sufficient in Alberta if the person claiming Charter s. 35 aboriginal rights proves membership in a Métis Settlement. The Crown did not appeal that decision. [ 5 ] In this application, Mr. L ’ Hirondelle seeks judicial review of:

a) the decision of the Fish and Wildlife Officer on October 1, 2010 denying him a Métis Domestic Fishing Licence, and

b) the policy of the Minister pursuant to which the Fish and Wildlife Officer acted in refusing Mr. L ’ Hirondelle ’ s application. Mr. L ’ Hirondelle seeks an order requiring the issuance of a domestic fishing licence to him. [ 6 ] Mr.

L ’ Hirondelle also seeks a declaration that the unappealed decision of the Provincial Court of Alberta in Lizotte establishes as law in Alberta that a Métis Settlements Identification Card is sufficient proof of entitlement to Charter s. 35 aboriginal rights. [ 7 ] It appears from both the written materials filed on this application and the oral submissions of counsel that both sides want the Court ’ s answer to this question: Does membership in a Métis Settlement establish entitlement to Charter s. 35 rights in Alberta? Mr.

L ’ Hirondelle submits the answer is “ Yes ” , either because the question was finally settled in Lizotte or for the reasons given by Hougestol P.C.J. in that case. The Minister submits that the answer is “ No ” because membership in a Métis Settlement does not alone establish that the person has the characteristics set out by the Supreme Court of Canada in Powley . [ 8 ] Though both sides appear to be of the view that the road is open for the Court to decide the question in this case, I do not agree.

For the reasons that follow I have decided that this proceeding does not provide an appropriate context for the decision the parties seek. Legislative Action Not Subject to Judicial Review [ 9 ] If the Minister ’ s policy was an exercise of delegated legislative authority it would not be susceptible to judicial review on any of the grounds raised in these proceedings.

The exercise of a delegated legislative function can be challenged on only limited bases: that it is not within the scope of the authority delegated; that the statute which delegates the function is ultra vires ; or that conditions precedent to the exercise of the delegated legislative function have not been met.

A procedurally proper intra vires exercise of delegated legislative authority is not subject to being set aside on judicial review. [ 10 ] It does not appear, however, that in fact the policy is the exercise of a legislative function delegated to the Minister. [ 11 ] The Minister ’ s authority in this context is defined by the Fisheries (Alberta) Act , R.S.A. 2000, c. F-16,

Licence issues 12(1) The Minister or a person authorized by the Minister may issue licences with respect to fish research, sportfishing, cultured fish and commercial fishing and other licences in accordance with the regulations to persons who meet the requirements of the regulations and who pay the required fees. . . . Regulations 43(1) The Lieutenant Governor in Council may make regulations (

a) establishing categories of licences, activities to be authorized by licences and classifications of licences; ... (

c) respecting the eligibility requirements and applications for and the issuing of licences; . . . [ 12 ]

Section 44 of the Act grants authority to the Minister to make regulations with respect to certain specifically defined subjects, none of which is relevant in the present context. [ 13 ] The General Fisheries (Alberta) Regulation , Alberta Regulation 203/97 (consolidated in Alta. Reg. 299/2009), has been adopted pursuant to s. 43 of the Act. In s. 2 the Regulation establishes several categories of licences, including, in s. 2(j): 2(

j) domestic fishing licences: (

i) Métis domestic fishing licence; (ii) domestic fishing licence. [ 14 ]

Section 25 of the Regulation sets out the eligibility requirements for the issuing of a domestic fishing licence: Domestic fishing licence 25(1) A domestic fishing licence may be issued if the Minister is satisfied that the applicant is a resident of Alberta who is in dire need of fish for the purpose of providing food for (

a) the applicant and members of the applicant ’ s family living with the applicant, and

(

b) animals owned by the applicant or members of the applicant’s family living with the applicant.

(2) No person shall possess fish taken under the authority of a domestic fishing licence for purposes other than those described insubsection (1).

(3) No person shall possess fish taken under the authority of a licence issued under the Fisheries Act (Canada) that authorizes the licenceholder to catch fish solely for the purpose of providing food for the licence holder’s personal use or for the use of their immediate family,except for that purpose. [15] It appears that s. 25 of the Regulation applies only to a domestic fishing licence under s. 2(j)(ii) of the Regulation and not to aMétis Domestic Fishing Licence under s. 2(j)(i).

There is no suggestion that being in dire need of fish is intended as an eligibilityrequirement for the issuance of a Métis Domestic Fishing Licence. There is no dispute that a Métis Domestic Fishing Licence isintended to be available to Métis persons possessing a Charter s. 35 aboriginal right to fish. [16] Therefore, it appears that the Lieutenant Governor in Council has not exercised its authority under s. 43(1)(

c) of the Act tomake regulation concerning eligibility for a Métis Domestic Fishing Licence. [17] It is clear that in adopting the policy which is at issue in these proceedings, the Minister has not purported to exercise anyaspect of the ministerial regulation making authority granted by s. 44 of the Act. [18] Counsel for the Minister suggested in argument that the policy is the Minister’s attempt to respect a constitutional obligationimposed on the Crown to facilitate exercise of Charter s. 35 aboriginal rights. Counsel cited R. v.

Adams (SCC),[1996] 3 S.C.R. 101 as authority in that regard. [19] In that case a member of the Mohawk nation was charged with fishing on a specific Quebec lake without a licence. TheSupreme Court of Canada held that he was exercising his Charter protected aboriginal right to fish and that the Quebec fishing licencerequirement infringed that right. The Quebec law gave the Minister a discretion to issue a licence in the circumstances. The SupremeCourt held this infringed Mr. Adams’ Charter protected right.

At para. 52, Lamer C.J. said: In this instance, the regulatory scheme subjects the exercise of the appellant’s aboriginal rights to a pure act of Ministerial discretion, andsets out no criteria regarding how that discretion is to be exercised. For this reason, I find that the scheme both imposes undue hardshipon the appellant and interferes with his preferred means of exercising his rights. . . .

In light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructureddiscretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of someexplicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of anaboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion whichseek to accommodate the existence of aboriginal rights.

In the absence of such specific guidance, the statute will fail to providerepresentatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent aninfringement of aboriginal rights under the Sparrow test. [20] It is difficult to see that the adoption of the policy by the Minister here is action of the type contemplated in this passage.

The passage calls for the very thing that seems to be missing in this case – a regulation enacted by the authority with statutory power toenact regulations, establishing the criteria for exercise of the licensing authority which does not risk infringing aboriginal rights. TheAdams decision does not suggest that a Minister of the Crown can assume a legislative function not expressly delegated to him.

Thequoted passage from Adams may recognize a constitutional obligation on the part of the Legislature or the Lieutenant Governor inCouncil to exercise their respective legislative and delegated legislative authority in a manner that supports constitutionally protected

aboriginal rights. It does not purport to create a delegated legislative authority where none otherwise exists. [21] Whether or not the Alberta Legislature or the Lieutenant Governor in Council has met the obligation described in Adams isnot in issue in these proceedings. Mr.

L’Hirondelle has not sought a declaration that the Fisheries (Alberta) Act or the Regulations underit infringe his constitutional rights, nor, indeed, could he do so in an application for judicial review. [22] It might be argued (though it was not) that in adopting the policy the Minister was acting practically and reasonably to fill avoid left by the Lieutenant Governor in Council which has created a category of licence, “Métis Domestic Fishing Licence”, but has notestablished eligibility requirements for such a licence.

It might be argued that in adopting the policy the Minister is acting as an agent ofthe Legislature. Whether such an argument would be viable when the Legislature has expressly assigned the legislative function inquestion to another body, the Lieutenant Governor in Council, is questionable.

In any event, however, even if the policy is somehow avalid exercise of legislative authority inherent in the Office of the Minister, the exercise of that authority is no more subject to judicialreview than if the Minister were exercising a statutorily delegated legislative authority. [23] Conceivably the lack of statutory authority to adopt the policy would justify a declaration that the policy is ultra vires theMinister. But such a declaration, if Mr. L’Hirondelle had sought it, which he did not, would not solve anything in this case. The policywhich Mr.

L’Hirondelle submits ought to apply – that a Métis Domestic Fishing Licence should be issued to any applicant for such alicence who proves he is a member of a Métis Settlement – is no more within the Minister’s authority than the existing policy. [24] The refusal of the Fish and Wildlife Officer to issue Mr. L’Hirondelle a Métis Domestic Fishing Licence is no more subjectto judicial review than the policy upon which it was based. There was no judicial character to the decision whatsoever. It was entirely“ministerial”. It is therefore not reviewable in an application of this nature: McDonald v. A.G.

Alberta (1968) (ABCA), 66 W.W.R. 111 at 117 (Alta. A.D.). Indeed Mr. L’Hirondelle’s application tacitly recognizes that the act of the Fish and WildlifeOfficer is not his real target. The Officer whose “decision” is challenged is not named as a Respondent. [25] The ultimate remedy sought by Mr. L’Hirondelle, an order requiring the Minister to issue him a Métis Domestic FishingLicence solely because he is a member of a Métis Settlement, is therefore unattainable in these proceedings. [26] The issue which both sides seek to have determined is a constitutional question.

This proceeding does not provide anappropriate context for its determination. Counsel advised that members of the Métis Nation have issued a Statement of Claim seeking adeclaration that persons who are members of a Métis Settlement are entitled by reason of that membership to Charter s. 35 aboriginalrights. It appears therefore that an appropriate proceeding for the determination of the issue is extant. [27] Mr. L’Hirondelle’s application is dismissed. [28] The parties will each bear their own costs. Heard on the 15th day of September 2011. Dated at the City of Edmonton, Alberta this 24th day of October 2011.

Brian R. Burrows J.C.Q.B.A. Appearances: Shawn Beaver for the Applicant Thomas G. Rothwell and Angela L. Edgington for the Respondent Appendix Métis Harvesting in Alberta July 2007 - Updated June 2010 In the case of R. v. Powley (September 19, 2003), the Supreme Court of Canada found that members of the Métis community in and around Sault Ste. Marie, Ontario have, under s. 35(1) of the Constitution Act, 1982 , an aboriginal right to harvest for food that was infringed without justification by the Ontario hunting legislation.

In reaching its decision, the Supreme Court set out a number of criteria for Métis people in establishing their right. Some Métis in Alberta are the beneficiaries of constitutionally protected harvesting rights as described in Powley . Three elements are essential to government of Alberta ’ s recognition of those rights: • Determining who are Métis harvesters; • What comprises Métis harvesting rights; and • Where those rights can be exercised. Who is a Métis Harvester? A person who asserts a constitutionally protected Métis harvesting right has the onus to prove that assertion.

A person who wishes to fish using a net must have a Métis Domestic Fishing Licence; an individual ’ s eligibility for that licence must be established before the licence is issued. A person who wishes to fish by any other legal means must have a sportfishing licence. A person who wishes to hunt must be able to demonstrate that he/she is a Métis harvester as described below. If checked while hunting, the person will be given 60 days to produce evidence of their status as a harvester, and, if unable to do so, may be charged with an offence.

If an individual is uncertain whether they will be able to prove that they possess an aboriginal right they should seek legal advice, as you may be required to prove the existence of such a right in court if you are charged with an offence. Alternatively, individuals may wish to

purchase the necessary licences in order to avoid uncertainty. A person is a Métis harvester only if he or she meets the test set out in the Powley case. To demonstrate that you are a Métis harvester, you must provide evidence that you meet the Powley test.

You should be prepared to produce evidence that you satisfy the following criteria: • That you self-identify as Métis, and for how long you have self-identified as Métis ○ membership in the Métis Nation of Alberta or a Métis Settlement or a statutory declaration confirming self identification would assist in demonstrating self identification, ○ membership in either of these organizations, or a Statutory Declaration, is not sufficient to meet the Powley test; • That you have an ancestral connection to an historic Métis community ¹ in Alberta; ○ genealogical history, including where ancestors lived and when they lived there, ○ please go back in time as far back as possible, and in any event, back to the late 1880's; • That you belong to a contemporary Métis community in Alberta ○ name that community and demonstrate acceptance by and involvement in that community; • That you are a resident of Alberta.

Thorough information will help make the decision-making process efficient. At this time, Alberta is prepared to consider for the purposes of Métis harvesting the eight Métis Settlements and the following 17 communities as both historic and contemporary Métis communities: Fort Chipewyan, Fort McKay, Fort Vermillion, Peace River, Cadotte Lake, Grouard, Wabasca, Trout Lake, Conklin, Lac La Biche, Smoky Lake, St. Paul, Bonnyville, Wolf Lake, Cold Lake, Lac Ste.

Anne and Slave Lake. ¹ In light of the unique history of Alberta ’ s eight M é tis Settlements, an ancestral connection to a M é tis Settlement can be established by demonstrating a pre-1900 ancestral connection to the general geographic area of the settlement, or a pre-1900 ancestral connection to a recognized M é tis community within Alberta from which an individual or their family migrated when the settlement was established. Again, when submitting documentation, please go back as far as possible, and in any event, back to the late 1800s.