R. v. Hirsekorn, 2011 ABQB 682

Court of Queen ’ s Bench of Alberta Citation: R. v.

Hirsekorn, 2011 ABQB 682 Date: 20111114 Docket: 101553758S1 Registry: Medicine Hat Between: Garry Ivan Hirsekorn Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] The Appellant Hirsekorn, was found guilty of shooting wildlife outside a regular season and being in possession of wildlife without a valid wildlife permit contrary to ss. 25(1) and 55(1) of the Wildlife Act, R.S.A. 2000, c. W-10 ( “ Wildlife Act ” ): R. v.

Hirsekorn, 2010 ABPC 385 . At trial, the Appellant presented a defence to the charges, arguing that he had an aboriginal right to hunt in the area where he was hunting. In this appeal, the main issue is whether the trial judge erred when he dismissed the Appellant ’ s defence.

[ 2 ] On October 20, 2007, the Appellant shot a mule deer, on the South West 1/4

Section 28, Township 7, Range 3, West of the 4 th Meridian, which is located near Elkwater, Alberta. On January 26, 2008, Ron Jones shot an antelope, on the North East 1/4

Section 36, Township 14, Range 9, West of the 4th Meridian, which is located near Suffield, Alberta. They were both charged as indicated. Jones died between the conclusion of the trial and the verdict. Therefore the trial judge made no finding against Jones. Wildlife Act Excerpts Hunting out of season 25.

(1) A person shall not hunt wildlife outside an open season or if there is no open season for that wildlife. (2) Subsection (1) does not apply to hunting that is specifically authorized by or under (

a) a licence that authorizes hunting outside or notwithstanding the lack of an open season, or (

b) the Agricultural Pests Act . Possession of wildlife and controlled animals 55.

(1) Subject to this Act, a person must not be in possession of a wildlife or controlled animal.

(2) Subject to this Act, a person may have a wildlife or controlled animal in the person ’ s possession (

a) if and to the extent that the person is authorized by a permit to do so, (

b) on a fur farm or a domestic cervid production farm if that possession is reasonably incidental to the operation of that farm, or off the farm if that possession is reasonably necessary for its operation, (

c) in the case of dead wildlife, if (

i) the Minister has transferred it to the person under

section 9, (ii) the wildlife has been hunted in accordance with this Act and the requirements of section 8(1)(b), (

c) and (

d) have been or are being met in relation to it, or (iii) the wildlife is a present or prospective domestic cervid in respect of which all applicable provisions of the Livestock Industry Diversification Act and the Meat Inspection Act or the Meat Inspection Act (Canada) and of regulations under those Acts and of this Act, have been or are being met.

(3) Except as prescribed, a person shall not be in possession of an animal that is not a subject animal and that was imported into Alberta unless it was lawfully acquired in and lawfully exported from a jurisdiction outside Alberta.

Constitution Act Excerpts [3] Subsections 1 and 2 of s. 35 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11state as follows: 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. The Trial Judgment [4] The evidence pertaining to the defence of an aboriginal right to hunt spanned 40 days of trial, during which the trial judgeheard several witnesses, including the following experts: 1. Dr. Arthur J. Ray - Defence expert. He was qualified as an historical geographer with expertise in the fur trade and the economichistory of aboriginal peoples of the Northwest, including the Métis. 2. Ms. Gwynneth C.D. Jones - Defence expert.

She was qualified as an historian with expertise in the documentary history ofaboriginal people, including the Métis, with a focus on the general area of Ontario west and the northern United States. 3. Dr. Frank Tough - Defence expert. He was qualified to give an opinion with respect to the geography and resource use ofaboriginal peoples including Métis. His opinion included evidence on hunting, fishing, trapping and gathering from Ontario westward,and on the Métis land grant and scrip process pursuant to the Manitoba Land Act and Dominion Lands Act, as it related to the Northwest. 4. Dr.

Clint Evans - Crown expert.

He was qualified as an historian to give an opinion on Western Canadian history, with particularknowledge of aboriginal and Métis history from Ontario westward. [5] The trial judge was of the opinion that the experts’ historical evidence was generally all very similar, although theiropinions differed on the conclusions to be drawn from the evidence presented. [6] The trial judge dealt with a number of issues raised by the parties, including the scope of the Constitutional Notices, whetherthe accused were exercising a right to hunt for food and whether the accused should be allowed to attack the validity of the impugnedWildlife Act provisions.

The trial judge then made findings of fact and applied the test in R. v. Powley, 2003 SCC 43 , [2003] 2S.C.R. 207. A

summary of his reasons on these issues follows. A. Whether Constitutional Notices Included “Métis of the Northwest” and Whether the Appellant Should Be Allowed toCharacterize the Métis Community as Such [7] The trial judge was of the opinion that Hirsekorn and Jones attempted to expand upon their filed Amended ConstitutionalNotices without giving reasonable notice of such proceeding and without bringing an application.

He noted that while their AmendedConstitutional Notices assert that the historic rights-bearing Métis community was within Alberta, including central and southernAlberta, at the conclusion of the hearing of the evidence, counsel for Hirsekorn and Jones argued that the rights-bearing community wasthe Métis of the Northwest. The Northwest was generally described as the area north and west of central Canada.

[ 8 ] The trial judge stated that the expansion of the Métis community from within Alberta, including central and southern Alberta to include the Northwest was a surprise to the court and the Crown. Considering that the trial process need be fair to all parties involved, the trial judge was not prepared to allow Hirsekorn and Jones to amend their Amended Constitutional Notices to have the rights-bearing community described as the “ Métis of the Northwest ” .

The trial judge stated that although the court had heard substantial evidence that pertained to the Northwest, it had not heard evidence about all of the Métis of the Northwest: para. 14. Therefore in his judgment, the rights-bearing community was “ described as Alberta, including the area of central and southern Alberta ” : para. 15. B. Whether the Right to Hunt for Food or for Ceremonial Purpose Was Exercised [ 9 ] Hirsekorn testified that the hunts were part of the action plan established by the Métis Assembly.

In fact, the Métis Nation of Alberta ( “ MNA ” ) had held an assembly at which a four-part action plan was developed: 1) Exercise the Nation ’ s Métis rights by organizing hunts at which animals would be harvested and the Métis hunters would be charged by the enforcement officers of Alberta Fish and Wildlife; 2) Defend Métis rights by challenging the charges in court; 3) Political action through Alberta representatives; and 4) Educate the public. [ 10 ] Pre-hunt meetings were held with Alberta Fish and Wildlife enforcement officers.

The media were also contacted. [ 11 ] Jones testified that he had no recourse but to go out and break the law, even though they did not believe that they were breaking the law, and get into court so everyone could see who had rights and who did not. [ 12 ] The enforcement officers were called to attend and view the kill sites upon the killing of the animals. [ 13 ] The trial judge found that the hunts were organized for a political purpose. He stated that there was no possibility for the Appellant or Jones to keep the animals for food purposes.

He added that no one has the right to keep the proceeds of a crime: “ Neither Mr. Jones nor Mr. Hirsekorn would be able to keep the animal they shot and benefit from the commission of Wildlife Act offences ” : para. 31. The trial judge found that the Appellant and Jones were neither hunting for subsistence, nor for ceremonial purposes. He therefore concluded that the constitutional argument before the Court failed: para. 32. C.

Whether Hirsekorn and Jones Should Have Proceeded in the Provincial Court of Alberta by way of a Collateral Attack Against the Wildlife Act [ 14 ] The trial judge was of the view that raising the defence of the aboriginal right to hunt was a collateral attack and was inappropriate: paras. 40-42, 158. He stated that an aboriginal hunter may not ignore apparently valid hunting laws because he has subjectively decided that they violate a constitutional right nor because that hunter is part of a bigger action plan conceived by the MNA in order to force the Government of Alberta into negotiating a new agreement.

In the trial judge ’ s view, the matter would have been better handled by way of a direct constitutional challenge commenced under the civil process in the Court of Queen ’ s Bench. It is unclear as to whether the trial judge dismissed the Appellant ’ s defence on this basis. D. Findings of Fact of the Trial Judge Regarding the Powley Test

[ 15 ] The trial judge ’ s findings of fact are mainly found at paras. 43 to 109. [ 16 ] Several of the trial judge ’ s findings refer to the fact that Métis people considered the Blackfoot Territory dangerous.

For instance, the trial judge made the following findings of fact with respect to the dangers associated with the territory as well as the evidence of travel in southern Alberta: 49 [...] “ Blackfoot Territory ” is a general description of the area in Alberta, lying south of the North Saskatchewan River, east of the Rocky Mountains, west of the Cypress Hills, but also included land in the northern United States lying north of the Missouri River.

This is similar to “ Treaty 7 and area ” , which is a general description of the area encompassing southern Alberta including the area bounded by the Red Deer River to the north, west of Medicine Hat, north of the United States border and the land lying east of the Rocky Mountains. 57 In the 1820 ’ s the Metis were part of the large buffalo hunts that occurred in the Red River District and they were the suppliers of pemican for the fur trade.

The pemican moved from Red River to York Factory and Fort Carlton House, and also from the Stony Plains to Lac La Biche and Isle a la Crosse. 58 Chesterfield House #2 was established by the Hudson ’ s Bay Company in 1822 at the junction of the Red Deer and South Saskatchewan Rivers.

This post was abandoned in 1823 because of the danger posed by the Blackfoot confederacy. 59 By the end of the 1830 ’ s the southern part of Alberta, extending south into the United States, was a very dangerous place unless the group entering the area was large and very well armed. 60 United States fur traders did not attempt to move into southern Alberta until 1830 because of the Blackfoot confederacy, specifically the conflict of 1823, where a party was forced back into the United States by the Confederacy. 61 The Hudson ’ s Bay Company established Old Bow Fort or the Peigan Post on the Bow River in 1832.

It was to entice the trading of the Blackfoot tribes back from the American fur traders. The post was abandoned in January 1834 because it was uneconomical, provided few furs, and required a large contingent of men to man it because of the danger posed by the Blackfoot confederacy. After it was abandoned, it was burned by the Blackfoot confederacy. 63 The area which later was part of Treaty 7 was called “ terra incognita ” , meaning “ earth unknown ” , from 1800-1859 by George Simpson, governor of the Hudson ’ s Bay Company.

Prior to 1860, the Blackfoot confederacy maintained undisputed dominion over the Treaty 7 area and continued to assert their exclusive presence through this area until the 1870 ’ s. 65 Before 1870, there was very little travel to the area of the Cypress Hills because of the presence of the Blackfoot confederacy. 66 From the 1850 ’ s to the 1870 ’ s the Metis travelled the Carlton Trail from the Red River area to Fort Edmonton and the surrounding area.

Up until the 1870 ’ s, there was very little evidence of travel into southern Alberta by the Metis. 82 In 1870-71, a large number of Metis from the North Saskatchewan Metis settlements wintered at Buffalo Lake. In 1872-1873 the Metis spent their second winter in the Buffalo Lake area.

This wintering camp was abandoned in 1878 because the buffalo were not accessible from that area. 129 Therefore, even if there were Metis hunters and travellers of Metis origin into southern Alberta before the mid 1870 ’ s, these trips were for very short periods of time, the travellers did not stay, and there was no stability, no contextual community, and nothing related to a site specific element.

[ 17 ] The trial judge made the following findings regarding the arrival of the North West Mounted Police ( “ NWMP ” ) as well as the consequences of their presence on the territory: 89 In August 1874 the North West Mounted Police met a group of Metis buffalo hunters from Winnipeg. The Metis had been in conflict with the Blackfoot. The North West Mounted Police did not come across anymore Metis encampments in southern Alberta. 90 The North West Mounted Police arrived in Southern Alberta in the fall of 1874.

A group of Metis from Manitoba and North Dakota accompanied the North West Mounted Police, who also hired Jerry Potts and Hugh Munro to assist them. 91 The Blackfoot confederacy was happy to see the North West Mounted Police because of the trouble caused by the American whiskey traders. The North West Mounted Police also facilitated the travel of Indian groups who in the past could not travel or camp together. 92 The North West Mounted Police started bringing law and order to the Saskatchewan District in 1874.

The lawlessness decreased dramatically by 1875, and the whiskey traders were forced to retreat back to the United States. 93 The Metis activity in southern Alberta, and specifically in the Cypress Hills area, increased dramatically after the arrival of the North West Mounted Police. At least initially, the North West Mounted Police Metis guides were unfamiliar with the area west of the Cypress Hills. The increase in activity is also borne out by the records of vital events, a term referring mainly to births.

Vital events in the Cypress Hills area were minimal prior to 1875, and increased dramatically between 1875 to 1878. 94 As the Northwest Mounted Police established posts, the Metis established villages around the posts. This occurred at Fort Saskatchewan, Fort Walsh, Fort Calgary and Fort Macleod. In 1875 when the Northwest Mounted Police established Fort Calgary, Metis established cabins on both sides of the Elbow River, forming a small settlement.

The Metis freighted for the North West Mounted Police between Fort Macleod and Fort Calgary. 95 During the years 1874-1876, Metis buffalo hunters spent most of the year hunting the declining and retreating buffalo herds. The hunters wintered at Buffalo Lake, Cypress Hills, Milk River and the northern United States. The Red River Metis hunted as far west as the Cypress Hills. However, before 1874, no settlements, either permanent or semi permanent winter settlements, appeared in southern Alberta. 96 In 1876, the Cree, Saulteaux and Assiniboine Indians signed Treaty 4.

The Blackfoot confederacy was not invited to sign that Treaty, but in 1877, they signed Treaty 7. The Blackfoot were concerned with the hunting of the declining buffalo by the Metis. The Blackfoot confederacy continued to have concerns about other Indian tribes and the Metis accessing their hunting grounds.

But after 1874, rather than use violence, the Blackfoot confederacy called upon the North West Mounted Police to provide help with the Indians and Metis who were encroaching upon their hunting grounds. 97 The Metis hunters considered the Blackfoot a constant threat, and they always travelled in large, well armed groups to secure their safety. They did not spend extended periods of time within the southern Alberta area.

While there were a handful of Metis families who had ties to the Blackfoot, there was not a substantial Metis presence in the Treaty 7 area and the Treaty 4 area (Alberta portion) until the latter part of the 1870 ’ s. Metis did not establish permanent wintering settlements in the Treaty 7 area until 1879. 99 The Metis living in the Cypress Hills in 1878 signed a petition (250 names) requesting the establishment of a “ reserve ” because they were dependant upon the buffalo which were moving east and south, and no longer frequenting the area.

They requested the reserve be established in Manitoba. 100 Some Metis continued to hunt and remained nomadic until the buffalo herds were gone from Canada. By 1879 the buffalo had moved south into the United States, and the Metis and the Indians in Treaty areas 4, 6 and 7 were facing food shortages. As the summer progressed, more Metis and Indians attended at posts as their condition was extremely desperate; “ All on the plains were starving ” .

114 Until after the North West Mounted Police arrived in southern Alberta in 1874, there was no consistent pattern of use or occupation of southern Alberta by Metis hunters. It was actually the presence of the North West Mounted Police that allowed the Metis to encroach upon the Blackfoot hunting grounds. This is because upon the arrival of the North West Mounted Police, the Blackfoot discontinued the use of violence and made requests of the North West Mounted Police to help prevent the incursion of other Indians and Metis into their hunting territory. 117 Dr.

Ray ’ s opinion is consistent with the other evidence, in which it is clear and unequivocal that movement of the North Saskatchewan Metis into southern Alberta was very sporadic, irregular, and infrequent. While the North Saskatchewan Metis eventually began to move in a southerly direction, they did not penetrate into southern Alberta until after the North West Mounted Police arrived in 1874. 119 The same can also be said of the Red River Metis; they did not travel consistently into southern Alberta until after the North West Mounted Police arrived. E.

The Powley Test [ 18 ] The trial judge summarized a number of factors from Powley , as a statement of the applicable law: 112 The Supreme Court of Canada in Powley decided that: 1. Not all people of mixed ancestry will have s. 35 rights, as the term “ Metis ” does not encompass all individuals with mixed Indian and European heritage: para. 10. 2. A Metis community is a group of Metis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life: para. 12. 3. Metis rights are contextual and site specific: para. 19. 4.

The community must have shared traditions and customs: para. 23. 5. The community must be identifiable with some degree of continuity and stability: para. 23. 6.

Aboriginal rights are communal, and must be grounded in the existence of a historic and present community: para. 24. [ 19 ] The trial judge added at para. 113 that a s. 35 constitutional right “ not equating to Aboriginal title must be established upon the consistent and frequent pattern of usage and occupation of a site specific area ” . [ 20 ] The trial judge concluded that the Appellant and Jones did not prove the existence of an historic community in southern Alberta.

First, he found that it was clearly evident that, prior to the arrival of the NWMP, no Métis group had sufficient degree of use, occupation, stability or continuity in the area to support a site-specific constitutional right. Secondly, the trial judge found that the evidence had not established a Métis group in southern Alberta with customs, tradition and a distinct collective identity from Indians. [ 21 ] According to the trial judge, effective and political control of southern Alberta began with the arrival of the NWMP and occurred between the years of 1874 to 1878: para. 139.

[ 22 ] The trial judge determined there was a contemporary Métis community in the City of Medicine Hat (which lies in close proximity to Cypress Hills and Suffield): para. 144. He wrote: “ I have no difficulty finding that as the North West Mounted Police established control over southern Alberta, families of mixed ancestry became established and even flourished. ” : para. 143.

However, as there was no historic rights-bearing Métis community in southern Alberta prior to the arrival of the NWMP, the modern Métis community in Medicine Hat was not the equivalent of a contemporary rights-bearing community: para. 146. [ 23 ] The trial judge stated at paragraph 147 that in light of Powley , in order for Hirsekorn and Jones to successfully assert the Métis right, they had to prove the following: (1) that they self-identify as a member of a Métis community; (2) that they have an ancestral connection to the historic community whose practices ground the right being claimed; (3) that they are accepted by a modern community which has continuity with the historic one. [ 24 ] The trial judge accepted the Appellant ’ s and Jones ’ s evidence that they self-identified as members of the Métis community and concluded that there was sufficient evidence that showed the Appellant ’ s and Jones ’ s ancestral connection to a historic community, being White Horse Plains of Manitoba and the Torchwood Hills of Saskatchewan for Jones and Fort Ellice, N.W.T., Parish of St.

Paul, Manitoba, Lac La Biche and Bai St. Paul, for the Appellant. The trial judge stated that in light of Powley , the fact of being of Métis ancestry did not qualify an individual to exercise a right i.e. the ancestral connection must be to the historic community that grounds the right.

Considering that he found no historic community in southern Alberta where the Appellant and Jones were hunting he found that the second part of the Powley test had not been met: 149 However, Powley makes it clear that being of Metis ancestry does not qualify an individual to exercise a right; the ancestral connection must be to the historic community that grounds the right. This requirement ensures that the beneficiaries of s.35 rights have a real link to the historic community whose practises ground the right being claimed.

I have found no historic community in southern Alberta, where the defendants were hunting. In addition, the evidence has not satisfied me that either of Mr. Jones ’ or Mr. Hirsekorn ’ s Metis ancestors belonged to an historic community whose practices included hunting in the area today known as southern Alberta.

Therefore, neither defendant has satisfied the second part of the Powley test. 150 The third part of the test is also not satisfied because of the lack of existence of both historic and modern communities. [ 25 ] The trial judge also considered the issue of the historic community in light of the extinction of buffalo and the impact of this on the evidence of continuity between a historic community with the nomadic practice of survival and the contemporary Métis practice: 154 As I have previously found there is no historic Metis community in southern Alberta and no continuing modern Metis community, it is not necessary for me to consider this issue. 155 However, while the Supreme Court of Canada stated in Powley that the right to hunt for food is not species specific, the unconverted fact is that as the buffalo retreated from Canada and were hunted to the point of extinction, the nomadic practice of following and surviving off the herds died.

Continuing the same practice without the existence of the buffalo was impossible, as is demonstrated by the need to distribute food rations to starving Indians and peoples of mixed ancestry in the latter part of the 1800 ’ s. 156 Therefore, even if I am wrong in my conclusion that there was no historic Metis community in southern Alberta, another problem is that any such historic community, based upon the practice of roaming lands to hunt animals which sustained families, perished with the collapse of the buffalo herds.

It is therefore impossible to prove any continuity between a historic community with this nomadic practice of survival, and any modern community.

Positions of the Parties A. The Appellant [ 26 ] The Appellant submitted that ss. 25(1) and 55(1) of the Wildlife Act do not apply to him by virtue of his right to hunt for food, qua Métis, under s. 35 of the Constitution Act, 1982 . [ 27 ] The Appellant submitted that contrary to the trial judge ’ s conclusion, there was no impermissible collateral attack on the legislation. Moreover, all the parties confirmed that they were not seeking the trial judgment to be upheld on this ground.

All parties agreed that the collateral attack was not inappropriate. [ 28 ] The Appellant also submitted that the trial judge erred in law when he dismissed the constitutional challenge on the basis that he was hunting for political purposes and not for food. He argued that the fact that the hunting was part of a communal action plan, was publicized and symbolic cannot be used to dismiss the constitutional challenge. [ 29 ] According to the Appellant, the trial judge was right when he concluded that Powley was the governing law, but he argued that the trial judge erred in the application of the test.

The Appellant argued that the trial judge made two fundamental errors of

interpretation and application of the test which relate to the distinct concepts of the determination of the historic Métis community and the determination of the site-specific harvesting area. [ 30 ] The Appellant submitted that there are four separate and distinct concepts at issue in this case: (1) the historic community; (2) the area where the historic practice took place; (3) the contemporary community; and (4) the area where the contemporary hunting took place.

The Appellant argued that the Court needs to identify the existence of these geographic concepts, but added that it is not necessary to define them with precision. [ 31 ] Regarding the issue of the constitutional notice and the historic rights-bearing Métis community, the Appellant argued that he did not attempt to expand the definition of the historic rights-bearing Métis community at trial.

The Appellant argued that the “ Métis Nation ” - the claimed historic community- was squarely before the trial judge in the Notice of Constitutional Question, opening comments, evidence presented by the defence throughout the trial and in closing argument. The Appellant submitted that for the purposes of this case the historic Métis community is the Métis Nation, which is geographically described as the Métis of the Northwest or the Northwest Métis.

The Appellant submitted that in asking the Court to consider the Northwest Métis as the historic rights-bearing Métis community, it is not necessary to define the Northwest Métis with complete precision.

The Appellant stated that the Court needs to determine in this case whether he was hunting within the historic hunting territory of the Métis of the Northwest, but that it is unnecessary to determine whether the Northwest Métis community extends to British Columbia or Ontario. [ 32 ] The Appellant argued that the trial judge also erred in holding that the evidence needed to show the existence of the historic Métis community in southern Alberta by occupation in the form of permanent or semi-permanent settlements, in place, prior to effective control.

The Appellant submitted that the exercise of delineating smaller communities within the Northwest would be artificial and would result in a legal fiction. He argued that the evidence shows that the Métis within the boundaries of Alberta were not a discrete

historic Métis community from the Northwest Métis. The political border of the province of Alberta did not come into existence until long after effective control. The Appellant argued that the historical facts about these highly mobile, plains buffalo hunters are not consistent with conducting a further search for discrete physical settlements within southern Alberta and then arbitrarily labeling them “ Métis communities ” .

The Appellant argued that using the correct application of the Powley test, the historic Métis community must be defined to reflect the actual lifestyle of this distinctive and well-known aboriginal people. The Appellant submitted that the Northwest Métis buffalo hunters were historically and continue to be, the best-known face of the Métis Nation.

The Appellant specified that they were present on the land and they were hunting in central and southern Alberta prior to effective control, and that these facts are sufficient to meet the Powley test. [ 33 ] The Appellant argued that the trial judge also misdirected himself regarding the site-specific requirement of Powley . The Appellant submitted that the trial judge erred when he held that this part of the test required more specificity than “ the plains ” in central and southern Alberta.

The Appellant submitted that the trial judge also erroneously held that Powley required evidence of a frequent and consistent pattern of usage in a site-specific area. He argued that the evidence presented at trial showed that many of the Northwest Métis were buffalo hunters on the “ plains ” . The plains, which were described as a “ storehouse of plenty ” , are a roughly shaped triangle that stretch between fixed settlements in Red River in the east, the Fort Edmonton area in the northwest, and Fort Benton, Montana in the southwest.

The Appellant stated that the Métis of the Northwest had a highly mobile lifestyle, largely centred around the buffalo that took them back and forth across the plains within this large triangle. [ 34 ] It was the Appellant ’ s submission that the evidence showed that the Métis were in large camps in southern Alberta hunting buffalo prior to effective control. The Appellant submitted, more specifically, there is evidence that the Métis hunted in and around Cypress Hills, which is where the Appellant ’ s hunting took place.

He argued that considering the lifestyle and hunting practices of the Métis, these facts are sufficiently site-specific for the purposes of the Powley test. [ 35 ] The Appellant submitted that the trial judge erred in law when, with respect to the continuity requirement, he found that the Métis could not claim a right to hunt because, with the demise of the buffalo hunt, there was a complete break in their lifestyle. The Appellant argued that Powley needs to be interpreted purposively. He submitted that hunting is an integral part of the Métis lifestyle and that the right is not species specific.

The law contemplated the evolution of the lifestyle and hunting practices. [ 36 ] The Appellant also submitted that the trial judge erred when he concluded that there was no contemporary Métis community in southern Alberta in continuity with the historic community. The Appellant argued that this error flows from the trial judge ’ s initial error that there was no historic Métis community in southern Alberta. [ 37 ] The Appellant also argued that the trial judge erred when he found that he was not genealogically connected to the relevant Métis community.

He submitted that the evidence shows that the Appellant traced his Métis ancestry to various settlements in central Alberta and the Red River. The Appellant argued that these facts do not disqualify him from claiming a Métis right to hunt for food in southern Alberta because he is ancestrally connected to the historic Métis community and he is an accepted member of the contemporary Métis community. He argued that individual members should be able to relocate to various settlements throughout the territory without being denied fundamental parts of their Métis identity and culture. B.

The Respondent and Intervenors [ 38 ] The Intervenors, the Siksika Nation and the Blood Tribe, and the Respondent, argued that the appeal should be dismissed. [ 39 ] The Respondent agreed with the trial judge that the Appellant attempted to unilaterally amend his Notice of Constitutional Question by extending the community at issue to the Métis of the Northwest.

The Respondent argued that determining whether to allow an amendment is discretionary and the issue in this appeal is whether the trial judge failed to exercise his discretion judicially, which resulted in a miscarriage of justice; that it was appropriate and it should not be overturned.

The Respondent added that it should not be required to infer what community the Appellant was seeking to establish membership in based upon submissions of counsel or the evidence of witnesses. [ 40 ] In the context of this appeal, the Respondent conceded that hunting for food is integral to Métis culture, but took issue with the location of the harvest and the ancestry of the Appellant. The Respondent submitted that aboriginal rights are site-specific.

[ 41 ] The Intervenor Blood Tribe submitted that the correct statement of the Powley test must take into account its origins in addressing the need to define s. 35 rights from the Métis perspective, as people who had a special connection to lands, through practices or traditions, dating back to between European contact and effective European legal and political control.

The Blood Tribe submitted that a s. 35 right claimant must identify a particular land location or situs within reasonable proximity to where the claimant exercised the claimed practice or tradition. [ 42 ] In addition, the Blood Tribe submitted that, under s. 35 , such a claimant must prove the existence of a specific historic rights- bearing community that exercised the asserted right, and that specific community must have exercised the practice both within reasonable proximity to the land situs claimed, with sufficient notoriety and exclusivity, and at the relevant time.

According to the Blood Tribe, the application of the Powley principles leads to the conclusion that the claim is not supported by evidence sufficient to prove that the Appellant ’ s claimed community exercised the right asserted in southern Alberta at the requisite time which is prior to between 1874 and 1878. The Blood Tribe submitted that accordingly, the trial judge did not err when he dismissed the Appellant ’ s defence. [ 43 ] The Siksika Nation argued that the Appellant sought to substantially alter the Powley test.

The Siksika Nation argued that although there need not be evidence of a Métis settlement, there must be evidence suggesting that a Métis community was present on the land, participating in a distinctive culture for generations. The Siksika Nation added that in order to prove an aboriginal right, occupation of land from a time prior to contact must be shown, although the occupation need not be an exclusive occupation. [ 44 ] The Siksika Nation argued that the regional approach which focused on local, individual communities is the correct approach and was the approach adopted by the trial judge.

The Siksika Nation argued that the regional approach is also consistent with the purposive reading of aboriginal rights under s. 35 , being the protection of historical features of distinctive communities. The Siksika Nation submitted that in this case, the Court must focus on the existence of a specific community or a discernible cluster of communities which have existed within the environs of southern Alberta for generations. The Siksika Nation submitted that the evidence shows that hunting in central and southern Alberta is not integral to the Métis culture and it did not make them who they are.

The Siksika Nation argued that there was no custom, practice or tradition of a historic rights-bearing community which involved hunting in central and southern Alberta. The Siksika Nation submitted that the hunting in central and southern Alberta was done under caution, infrequently and was few and far between, which did not support the use necessary to establish an aboriginal right. The Siksika Nation argued that the exercise of such sporadic and occasional rights could not be integral to the distinctive culture of any Métis community.

The Siksika Nation also argued that the Appellant failed to prove that he had an ancestral connection with respect to the area where he is seeking the right to hunt. Issues [ 45 ] The issues before the Court in the present appeal are as follows: 1. Did the trial judge err in characterizing the constitutional challenge as an impermissible collateral attack on Alberta ’ s Wildlife Act ? 2. Did the trial judge err in finding that the Appellant attempted to expand upon his filed Amended Constitutional Notice without giving reasonable notice of such proceeding and without bringing an application before the Court? 3.

Did the trial judge err in dismissing the constitutional challenge by characterizing the hunting in issue was for political purposes? 4.

Did the trial judge err in his application of the Powley test regarding the characterization of the right, the identification of the historic rights-bearing community, the identification of the contemporary rights-bearing community, the verification of membership to the relevant contemporary Métis community, the identification of the relevant time frame, the continuity between the historic practice and the contemporary right being claimed, by failing to apply the determination of whether the practice is integral to the claimant ’ s distinctive culture test and by failing to apply the infringement test?

Standard of Review

[46] The Appellant submitted that the trial judge made palpable and overriding errors with respect to certain findings of fact andmixed fact and law. The Appellant also argued that the trial judge erred in law. I cannot interfere with findings of fact or of mixed factand law except in cases of palpable and overriding errors unless there exists an extricable error of law. Courts must be cautious, becausewhat may appear to be a question of mixed fact and law may in fact be an error of pure law and therefore be subject to the correctnessstandard: Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, para. 27. [47] The Respondent submitted that the Appellant was offered the opportunity to put all the evidence in front of the trial judgeand added that Appellant should not ask an appellate court to look at snippets of evidence and draw conclusions in isolation. Deference iswarranted on findings of fact. [48] The standard of review applicable is correctness for questions of law, and palpable and overriding error for questions of factor of mixed fact and law, absent an extricable error of law: Housen, paras. 8, 24-36. Analysis A.

Collateral Attack [49] The trial judge relied on R. v. Lefthand, 2007 ABCA 206, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 470; [2007]S.C.C.A. No. 468, where the majority of the Court was of the opinion that the issue regarding the collateral attack did not need to bedetermined. In Lefthand, Slatter J.A. expressed concerns with the fact that some individuals will choose to disobey the law and then raiseas a defence that the law was invalid. He wrote: 31 Aboriginal rights must clearly be subject to the rule of law.

The rule of law is a “highly textured expression, importing manythings”: Reference Re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at para. 70. One aspect of the rule is that weare governed by validly enacted laws, and that therefore no citizen should be subject to an unconstitutional law or act: ConsolidatedMaybrun Mines at para. 25; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at pp. 313-4; Boddington v. BritishTransport Police, [1999] 2 A.C. 143 at pg. 173 (H.L.). Another is that all persons and groups are subject to the law: we are ruled by law,not power or force.

No group or person, no matter how powerful or righteous, can be immune from the authority of the laws asadministered by the courts. No person can avoid the jurisdiction of the courts to declare what the laws are, and which of them areunconstitutional. It follows that self-help remedies are generally in conflict with the rule of law, as they favour the powerful over the law.Collateral attack of government action creates a conflict between these principles.

On the one hand a citizen should not be subjected to aninvalid law, but on the other hand a citizen should not be encouraged to ignore the law because of a subjective determination that the lawis invalid. In most cases the principle of orderly government underlying the rule of law supports the latter principle over the former.Citizens, groups and governments should challenge disputed laws by the legally available means, not just disobey them.

That isparticularly so when an individual citizen is asserting a breach of a collective right, where the alleged breach arises from a regulatoryregime that has been, on it face, validly enacted. Thereafter, Slatter J.A. concluded that the Crown did not object to the collateral attack and thus the defence had to be considered. [50] The Appellant submitted that there was no impermissible collateral attack on the Wildlife Act. First, the Appellant submittedthat a constitutional defence against the applicability of legislation is not a collateral attack where there is no existing decision or order atissue.

The Appellant added that the rule against collateral attack is not intended to prohibit defences to regulatory charges. The Appellantsubmitted that therefore the trial judge erred in law on this issue. [51] The Respondent and Intervenors agreed with the Appellant that the challenge to the constitutionality of the offence did notamount to an impermissible collateral attack on the legislation.

The Respondent considered that, in any event, this issue should not beraised after a lengthy trial with numerous witnesses. [52] In light of the trial judgment, I find that it is unclear as to whether the trial judge actually dismissed the Appellant’s defenceon this basis. However, if it is the case, I agree with the parties that the raising of a constitutional defence to a criminal or quasi-criminalcharge is not, without more, an impermissible collateral attack. In this case, it was not inappropriate. Although, in most cases, it may be

more efficient to have a case decided in a civil process, there is no legal principle that prevents an accused charged with an offence fromraising an appropriate constitutional defence. The Court is the guardian of the Constitution; if a statute is inconsistent with theConstitution, the overriding effect of s. 52 of the Constitution Act “is to give the Court not only the power, but the duty, to regard theinconsistent statute, to the extent of the inconsistency, as being no longer ‘of force or effect’: R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at 312-316 and 353.

In other words, although many would agree that a civil process is a more suitableand effective way to determine aboriginal rights issues, especially in terms of defining the parameters of the right, it does not mean aconstitutional defence to a criminal or quasi-criminal charge is impermissible. [53] To the extent the trial judge rejected the Appellant’s constitutional defence on the basis that it was an impermissible orinappropriate collateral attack, he was in error. B.

Notice of Constitutional Question [54] The Appellant argued that the trial judge erred in fact and in law in refusing to allow an amendment to the ConstitutionalNotice to describe the historic rights-bearing community as the “Métis of the Northwest”. The Appellant submitted that there was noattempt to expand the definition of the historic rights-bearing community beyond the Notice. Moreover, the Appellant argued that theissue was raised at the beginning of the trial and therefore that there should not have been any surprise.

The Appellant further stated thetrial judge also erred in law because he adopted a too rigid

interpretation of the Notice. The Appellant argued that it is an error of law togive such a strict

interpretation to a Notice of Constitutional Question. [55] The Respondent submitted that the argument advanced by the Appellant at trial was not consistent with the Notice. The term“Métis of the Northwest” is not contained anywhere in the Notice. The Respondent argued that determining whether to allow anamendment is discretionary and the issue in this appeal is whether the trial judge failed to exercise his discretion in a judicial manner,which resulted in a miscarriage of justice.

The Respondent submitted that the trial judge’s decision to deny the application foramendment contained no misapprehension of the circumstances, was well founded in law and there was more than adequate regard forthe interests of justice. The Respondent added that it should not be required to infer what community the Appellant is seeking to establishmembership in based upon submissions of counsel or the evidence of witnesses. The Respondent also referred to R. v. Goodon, 2008MBPC 59, 234 Man.

R. (2d) 278, paras. 19-21 where the trial judge refused to extend the site for the hunting right claimed to include theNorthwest, a larger geographical area more extensive than the environs of the Turtle Mountains where Goodon was hunting. [56] The Appellant disagreed with the Respondent’s statement that a similar situation occurred in Goodon.

The Appellant arguedthat in this case, the issue is the historic community, not the site-specific location where the Appellant was hunting. [57] The Respondent submitted that the effect of allowing a larger community is that the members would have more rightsbecause one is a member of the community of the Northwest and people hunted in the Northwest, then that right would extendthroughout the Northwest, which the Respondent argued is inconsistent with the case law: Powley, para. 24; R. v. Laviolette, 2005 SKPC70, 267 Sask. R. 291, para. 51; R. v. Belhumeur, 2007 SKPC 114, 301 Sask.

R. 292, para. 173; Goodon, para. 48. [58] The Constitutional Notice Regulation, AR 102/1999 and the Judicature Act, R.S.A. 2000, c. J-2, s.24 require that writtennotice be given to the Attorney General of Canada, the Minister of Justice and the Attorney General of Alberta when the constitutionalvalidity of an enactment is challenged. [59] Hirsekorn’s AMENDED CONSTITUTIONAL NOTICE (exhibit 4) reads as follows: TAKE NOTICE THAT the Defendant, Garry Hirsekorn intends to question the constitutionality, both generally and in its applicationto this Defendant, of ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c.

W-10 (the “Wildlife Act”). The following are the material facts giving rise to the constitutional issues to be raised at trial:

Section 35 of the Constitution Act, 1982 , states as follows:

(1) The existing Aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “ aboriginal peoples of Canada ” includes the Indian, Inuit and Métis peoples of Canada. 2. The Métis Nation is one the “ aboriginal peoples of Canada ” within the meaning of s. 35(2) of the Constitution Act , 1982. The Métis Nation lives in, uses and occupies a territory that spans the three Prairies Provinces (Manitoba, Saskatchewan and Alberta) and extends in Ontario, British Columbia, the Northwest Territories and the northern United States. 3. The Métis Nation of Alberta ( “ MNA ” ) represents the members of the Métis Nation living in, using and occupying Alberta.

The Defendant is a member of a rights-bearing Métis community that lives in, uses, and occupies what is now known Alberta and includes as central and southern Alberta. This rights-bearing Métis community has always harvested and continues to harvest throughout its traditional territory, which includes the area at or near Cypress County, Alberta. 4. The Defendant self-identifies as Métis, is ancestrally connected to the historic rights-bearing community in Alberta, which includes central and southern Alberta and has been accepted as a member of that Métis community.

This Defendant asserts that he is Métis within s. 35(2) of the Constitution Act, 1982 . 5. This Defendant participates in his Métis culture, by among other things, exercising his Aboriginal right to harvest for food, social and ceremonial purposes. On or about October 20 th , 2007, this Defendant, under the authority of and consistent with the Métis Nation of Alberta ’ s Harvesting Policy, was exercising his Métis harvesting right near Cypress County, Alberta, when he was apprehended. charged with. The following is the legal basis for the constitutional issues: 1.

The Alberta Métis community, which includes central and southern Alberta is part of the Métis Nation of Alberta, which in turn is part of the Métis Nation. The Métis Nation is one of the “ aboriginal peoples of Canada ” within the meaning of s. 35(2) of the Constitution Act, 1982 . 2. Aboriginal rights are collective rights. The Alberta Métis community, which includes central and southern Alberta has Aboriginal harvesting rights within its traditional territory that are recognized and affirmed by s. 35(1) of the Constitution Act, 1982 . 3.

The Aboriginal harvesting rights of the rights-bearing Métis community in Alberta, which includes central and southern Alberta have never been extinguished and are therefore existing Aboriginal rights within the meaning of s. 35(1) of the Constitution Act , 1982. 4. The MNA is the democratically elected political body that represents the Métis Nation in Alberta. As the representative body for Alberta Métis, the MNA has the duty and authority to ensure the Métis harvest is conducted in an orderly manner that respects safety and conservation principles.

The MNA is actively fulfilling this duty by, among other things, implementing a MNA Harvesting Policy and issuing MNA Citizenship Cards based on an objectively verifiable Registry. 5. The Defendant is an accepted member of the rights-bearing Métis community and has been identified by the MNA as a Métis harvester who can legitimately exercise the collective ’ s food harvesting right. 6. On October 20 th , 2007, this Defendant was exercising his right to hunt for food that is protected by s. 35(1) of the Constitution Act, 1982 when he was charged under ss. 25(1) and 55(1) of the Wildlife Act .

7. Sections 25(1) and 55(1) of the Wildlife Act were unjustifiably applied to this Defendant without consideration of his food harvestingright, qua Métis, protected by s. 35(1) of the Constitution Act, 1982. The following is the constitutional issue to be argued by the Defendant: 1.

That ss. 25(1) and 55(1) of the Wildlife Act are is inapplicable to this Defendant by virtue of his Métis food hunting right protected bys. 35(1) of the Constitution Act, 1982, and are therefore of no force and effect by virtue of s. 52 of the Constitution Act, 1982. [60] Generally, the Appellant submitted that he used the term “Métis Nation” and “Métis of the Northwest” interchangeably andthat the geographic description remains the same. [61] The Appellant submitted that Counsel for the Respondent had the opportunity to ask further questions considering theopening submissions and the fact that the evidence presented at trial was about a large geographic territory.

The Appellant noted that atthe time of the opening statement, the Respondent’s expert report had not been finalized or filed. The Appellant argued that theRespondent had every opportunity to respond to the issue of the larger historic Métis community and that, even if the Respondent madeits opening statement immediately after, it raised no objection. The Appellant argued that in any event, there is no prejudice. [62] As stated in Bekker v. R., 2004 FCA 186, a constitutional notice serves a very important purpose.

It is not a mere technicality: 8 This Court will not entertain a constitutional challenge in the absence of a Notice being served on the Attorney General of Canadaand on each Attorney General of the Provinces: see Gitxsan Treaty Society v. Hospital Employees Union et al. (1999), 238 N.R. 73(F.C.A.); Giagnocavo v. M.N.R. (1995), (FCA), 95 D.T.C. 5618, where this Court said that it was withoutjurisdiction to hear the issue. Such Notice is not a mere formality or technicality that can be ignored or that the Court can relieve a partyof the obligation to comply with: see The Queen v.

Fisher (1996), 96 D.T.C. 6291, where this Court ruled that the Notice must be givenin every case in which the constitutional validity or applicability of a law is brought in question in the manner described in

section 57,including proceedings before the Tax Court governed by the Informal Procedure. Indeed, a judge cannot, proprio motu, raise aconstitutional issue without giving a notice to the Attorney General: see Reference re Remuneration of Judges of Provincial Courts, (SCC), [1997] 3 S.C.R. 3. 9 The Notice serves a useful and essential purpose. The Attorney General, whether for Canada or for a province, bears theresponsibility of enforcing legislation and defending the constitutionality of the laws enacted by Parliament or provincial Legislatures, asthe case may be.

The Notice enables them to discharge that duty: on the duty, see Thorson v. Canada (Attorney General), (SCC), [1975] 1 S.C.R. 138, at page 146; Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607, atparagraph 28; Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418. It also alerts the provincial Attorneys General to challengesmade to federal laws that may have an impact on their provinces although the duty to sustain the constitutionality of these laws is nottheirs.

This is why the Notice has to provide its recipients with adequate and sufficient information in terms of the material facts givingrise to the constitutional question and the legal basis for that question, otherwise it will be found insufficient and the Court will assumethat there is no serious question to be addressed: see Gitxsan Treaty Society v. Hospital Employees Union et al., previously cited.

Finally,it ensures that no injustice is created to the elected representatives who enacted the law and to the people that they represent: see Eaton v.Brant (County) Board of Education, (SCC), [1997] 1 S.C.R. 241, at pages 264-65 per Sopinka J. See also Beattie v.

Canada, 2006 FC 24 at para. 18. [63] In light of the Appellant’s Notice, particularly paragraphs 2 and 3 of the material facts giving rise to the constitutional issuesas well as paragraph 1 of the legal basis for the constitutional issues, the issue of a smaller community - the Alberta Métis community -being part of the larger community - the Métis Nation - is included in the Notice.

The precise term referring to a larger community“Métis of the Northwest” does not appear in the Notice, but as submitted by the Appellant, it is also important to note that there is nostatement in the Notice limiting or defining the historic rights-bearing Métis community to the smaller group. Clearly, the Notice refersto a larger community: the Métis Nation. The difference in wording used in the Notice and used at trial does not render the Noticeinconsistent with what was presented at trial.

[ 64 ] In addition, the trial opening statement unequivocally demonstrated that the issue was raised at the beginning of the trial. The transcript from the trial does not support the trial judge ’ s conclusions that the reference to the Métis of the Northwest came as a surprise: So you ’ re going to hear the Metis perspective, sir.

You ’ re going to hear that they hunted for food at all times throughout the northwest, and you ’ re going to see a lot of documents where they describe themselves as planes [sic] hunters, or northwest half-breed hunters, or buffalo hunters [...] [...] you ’ re going to hear a lot of evidence that the Metis perspective is that they saw themselves as hunters, and that that was throughout a vast territory [...] you ’ re going to hear a lot of talk about a territory called The Northwest.

So we ’ ll ... give you evidence about what that entails, that idea, but generally the evidence is going to show you that it sort of goes from the upper Great Lakes to the Rocky Mountains, and up to probably Great Slave Lake in the Northwest Territories. It ’ s a very large area. So -- and why it ’ s called that, Your Honour, although it ’ s probably a little bit obvious in that all of that used to be the Northwest Territories, right. That ’ s what it used to be called, so this is a historical perspective here. [Trial transcript, vol.

I, p. 77, line 29 - p. 78 line 7] [...] And you ’ ll be hearing the evidence about the [...] traditional territory that they [the Metis] have. And as we said [...] the historical Metis community is the Metis of the northwest, and it ’ s large, Your Honour. There ’ s no question that it ’ s large. What we say to you though is that it ’ s really not much different from the Inuit territory that came up before the court in the Baker Lake case. [...] And in that one [...] Judge Mahoney says something like the Inuit were few, the barrens were large. [...] [I]t ’ s the same.

The prairies were huge, and there weren ’ t a lot of people here, but the Metis were here. So it ’ s the same kind of idea that we ’ re looking at. It ’ s a very large territory [...] but we ’ re not claiming the right to hunt everywhere in Canada [...] [I]f they ’ re [the Metis] going to go outside [...] of the northwest then they need to prove that they have a right out there. [...] This is a case about within the northwest. [...] [T]he facts are going [...] to be pretty simple.

The Metis had a tradition of hunting throughout the northwest [...] and the court has said that you have to look at the actual pattern of exercise. [...] And as in Sappier , what we ’ re saying is that the lands in question are the lands that were traditional [sic] used for hunting by the Metis of the northwest. [Trial transcript, vol. I, p.80, line 35- p.81, line 28]. [...] In this case, you ’ re going to hear evidence about mobility that ranges from Red River to the Rocky Mountain House up to Great Slave Lake down into Montana, and back to Red River in one year.

So you ’ re talking about a huge - - a magnitude of scale of mobility that is very, very, very different. So what we ’ re saying is that needs to be reflected in the discussion of what the historic Metis community is. [...] We don ’ t take this [the fact that in Powley the court was not asked to decide whether the community is a part of a larger Metis people] to mean that you can never ask that question; that you can never ask whether the right actually belongs to the larger body or, in fact, appropriately belongs to the larger body and that you shouldn ’ t only look at the smaller body.

Just because it wasn ’ t done in Powley doesn ’ t mean it cannot be done. We don ’ t take this as prescriptive [...] but here, Your Honour, we are putting that question squarely before you. That ’ s the question here. [...] [W]e say that the right belongs to the larger body; that the right does not only belong to the little local settlement. [Trial transcript, vol.

I, p. 86, line 10- p. 87, line 2]. [...] [A]s you know, we ’ ve been trying to restructure this case for some time into a larger case, because we think that the right claimed here -- the historic community is the Metis of the Northwest, which we say includes all of Alberta. [...] the defendants position is that all of the Metis in Alberta who are part of that -- the modern day continuation of the historic community, have a right to hunt throughout Alberta. And I ’ d -- I ’ d sort of qualify that a little bit, Your Honour, by saying we ’ re a substantial portion thereof. [Trial transcript, vol.

I, p. 91, lines 21-28]. [ 65 ] In light of the above, I find that the Appellant ’ s Amended Notice was sufficient and adequate with respect to the historic rights-bearing community. I find that the issue of the larger community was not a new issue raised at trial. Therefore, I conclude that the trial judge erred when he decided that Hirsekorn and Jones attempted to expand upon their filed Amended Constitutional Notices without giving reasonable notice of such proceeding and without bringing an application before the Court.

The Amended Notice provided its recipients with adequate and sufficient information in terms of the material facts giving rise to the constitutional question and the legal basis for that question. C. Powley Test 1. R. v. Powley [ 66 ] In Powley , the Supreme Court of Canada had to determine whether members of the Métis community in and around Sault Ste.

Marie in Ontario had a constitutionally protected right to hunt for food under s. 35 of the Constitution Act, 1982 . [ 67 ] Steve Powley and his son shot and killed a bull moose near Old Goulais Bay Road without a valid Outdoor Card, a valid hunting licence to hunt moose, or a validation tag issued by the Ministry of Natural Resources. Instead of these documents, Steve Powley affixed a handwritten tag to the ear of the moose which indicated the date, time and location of the kill as required by the hunting regulations. It stated that the animal was to provide meat for the winter.

Steve Powley signed the tag and included his Ontario Métis and Aboriginal Association membership on it. Two conservation officers went to the Powleys ’ residence later that day. The Powleys told the officers that they had shot the moose. One week later, the Powleys were charged with unlawfully hunting a moose and knowingly possessing game hunted in contravention of the Ontario Game and Fish Act . They entered pleas of not guilty. [ 68 ] The Powleys admitted that they shot, killed and took possession of a bull moose without a hunting licence.

However, they argued that as Métis they have an aboriginal right to hunt for food in the Sault Ste. Marie area that could not be infringed by the Ontario

government without proper justification. The trial court, Superior Court and Court of Appeal agreed with the Powleys and found that themembers of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food that was infringed withoutjustification by the Ontario hunting regulations. The Supreme Court of Canada also agreed. The Court concluded that the members of theMétis community in and around Sault Ste.

Marie have an aboriginal right to hunt for food under s. 35(1). [69] In Powley, the Supreme Court of Canada explained that in s. 35 “Métis” does not encompass all individuals with mixedIndian and European heritage. It stated that “Métis” refers to “distinctive peoples who, in addition to their mixed ancestry, developedtheir own customs, way of life, and recognizable group identity separate from their Indian or Inuit and Europeans forebears”: Powley,para. 10. The Court did not attempt to enumerate the various Métis peoples.

It stated that considering that the Métis are expresslyincluded in s. 35, it was only necessary for the Court’s purposes to verify that the Powleys belonged to an “identifiable Métis communitywith a sufficient degree of continuity and stability to support a site-specific aboriginal right”: para. 12. The Court specified that “[a]Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area andsharing a common way of life”: para. 12. Considering that the Powleys claimed membership in the Métis community in and around SaultSte.

Marie, the Court was of the opinion that it was unnecessary to decide whether this community was also a Métis People or whether itformed part of a larger Métis people that extends over a wider area such as the Upper Great Lakes: para. 12. The Court stated that thepurpose and promise of s. 35 is the protection of practices that were historically important features of these distinctive communities andthat remain in the present day as integral elements of their Métis culture. [70] In Powley, the Court agreed that the basic elements of the test stated in R. v.

Van der Peet, (SCC), [1996] 2S.C.R. 507 were applicable to Métis rights, but modified it to reflect the distinctive history and post-contact ethnogenesis of the Métis.The Court stated at para. 18 that “[s]ection 35 requires that we recognize and protect those customs and traditions that were historicallyimportant features of Métis communities prior to the time of effective European control, and that persist in the present day.” [71] The Court then elaborated a test to determine Métis hunting rights and stated that the following factors must be considered:

(1) Characterization of the right;

(2) Identification of the historic rights-bearing community;

(3) Identification of the contemporary rights-bearing community;

(4) Verification of the claimant’s membership in the relevant contemporary community;

(5) Identification of the relevant time frame;

(6) Determination of whether the practice is integral to the claimants’ distinctive culture;

(7) Establishment of continuity between the historic practice and the contemporary right asserted;

(8) Determination of whether or not the right was extinguished;

(9) If there is a right, determination of whether there is an infringement; and

(10) Determination of whether the infringement is justified.

[72] In Powley, the Court characterized the right being claimed as the right to hunt for food in the environs of Sault Ste. Marie.The Court agreed with the trial judge that the periodic scarcity of moose did not in itself undermine the respondents’ claim.

It determinedthat the relevant right was not the right to hunt moose, but the right to hunt for food in the designated territory: paras. 19-20. [73] Regarding the identification of the historic rights-bearing community, the Court concluded that the trial judge had made noreviewable error when he found that a distinctive Métis community emerged in the Upper Great Lakes region in the mid-17th century,and peaked around 1850. [74] In Powley, the Court upheld the trial judge’s finding that the Métis community has persisted in and around Sault Ste. Mariedespite its decrease in visibility.

The Court stated there was never a lapse but that the Métis community went underground and continued.The Court added that “the ‘continuity’ requirement puts the focus on the continuing practices of members of the community, rather thanmore generally on the community itself”: para. 27. [75] The Court found no reason to overturn the trial judge’s finding that the Powleys were members of the Métis community thatarose and still exists in and around Sault Ste. Marie.

The inquiry with respect to the verification of the claimant’s membership in therelevant contemporary community must take into account both the value of community self-identification as well as the need for theprocess of identification to be objectively verifiable.

In addition, under s. 35, the criteria for Métis identity must reflect the purpose of thisconstitutional guarantee which is “to recognize and affirm the rights of the Métis held by virtue of their direct relationship to thiscountry’s original inhabitants and by virtue of the continuity between their customs and traditions and those of their Métis predecessors”:para. 29. [76] With respect to the identification of the relevant time frame, the Court in Powley reiterated that the pre-contact aspect of theVan der Peet test needed to be adjusted “in order to take account of the post-contact ethnogenesis of the Métis and the purpose of s. 35 inprotecting the historically important customs and traditions of these distinctive peoples”: para. 36.

The Court stated that the focus shouldbe on the period after a particular Métis community arose and before the community came under the effective control of European lawsand customs. The pre-control test enables the courts to identify those practices, customs and traditions which predate the imposition ofEuropean laws and customs on the Métis: para. 37. The historical evidence showed that “the Sault Ste.

Marie Métis community thrivedlargely unaffected by European laws and customs until colonial policy shifted from one of discouraging settlement to one of negotiatingtreaties and encouraging settlement in the mid-19th century.”: para. 40. The trial judge found that effective control of the Upper GreatLakes areas passed from the aboriginal peoples of the area to European control between 1815 and 1850.

The Supreme Court of Canadaconcluded that the record supported the finding that the period just prior to 1850 was the appropriate date for finding effective control. [77] The determination of whether the practice was integral to the claimants’ distinctive culture was found in evidence thatsupported the trial judge’s finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie for the period just priorto 1850.

The evidence presented at trial indicated that subsistence hunting was an important aspect of Métis life and that it was a definingfeature of their special relationship to the land. The Court stated at para. 41 that the practice of subsistence hunting and fishing remaineda constant in the Métis community, even though the availability of particular species might have fluctuated. The Court also found that thecontinuity between the historic practice and the contemporary right asserted was established. The Court stated that hunting for food wasan important feature of the Sault Ste.

Marie Métis community and that the practice had been continuous to the present. [78] The Court noted that the province of Ontario did not recognize any Métis right to hunt for food or any special access rights tonatural resources for the Métis. The Court found that the lack of recognition and the application of the challenged provisions to thePowleys infringed their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. MarieMétis community. The Court also found that the infringement of the Powleys’ aboriginal right was not justified.

It found that even ifthere was evidence that the moose population was under threat, which there was not, the Métis would still be entitled to a priorityallocation in order to satisfy their subsistence need in accordance with the criteria set out in R v. Sparrow, (SCC),[1990] 1 S.C.R. 1075. The Court concluded that on the available evidence and considering the licensing system in place, the province’sblanket denial of any Métis right to hunt for food could not be justified. a.

Characterization of the Right [79] The purpose and promise of s. 35 with respect to Métis is the protection of practices that were historically important featuresof the Métis distinctive communities and that remain in the present day as integral elements of their Métis culture: Powley, para. 13. Thefirst step of the Powley test is to characterize the right being claimed. In Powley, the Court stated at para. 19 that hunting rights arecontextual and site-specific.

[80] The Appellant submitted that the trial judge made two errors of law with respect to the characterization of the right. First, heargued that the judge failed to apply the full test for the characterization of the right, which he submitted is an error of mixed fact andlaw that amounts to an error of pure law: Housen, para. 27.

Secondly, the Appellant argued that the trial judge erred in hischaracterization of the legal standard when he stated that in order to prove a Métis right to hunt, it was necessary to show a “consistentand frequent pattern of usage of a “site-specific area.” The Appellant argued that the test required an analysis of the actual practice on theland, but did not require the Appellant to meet the higher standard imposed by the trial judge. [81] The Respondent stated that it does not take issue with the characterization of hunting for food as being integral to a Métiscommunity.

The Respondent submitted that the Appellant asserted and characterized the right himself: the aboriginal right to harvest forfood, social and ceremonial purposes. However, the Appellant needed to prove such a right. The Respondent argued that nowhere inHirsekorn’s evidence did he say he was hunting for food. The Respondent submitted that the trial judge’s finding that the Appellant washunting for a political purpose was supported by the evidence and should not be disturbed. [82] The trial judge erred when he found that the Appellant was not hunting for food.

Although it is true that the Appellant did notactually say that he was hunting food, he testified that he was hunting according to the MNA action plan which was designed for Métis toexercise their food hunting rights publicly as a means of obtaining a judicial ruling that would secure Métis food hunting rights insouthern Alberta. [83] I agree with the Appellant that the trial judge erred when he characterized the right by only identifying the event that gaverise to the litigation: see, for example R. v. Côté, (SCC), [1996] 3 S.C.R. 139, para. 56.

The fact that a right is exercisedfor a political purpose is not sufficient to dismiss the constitutional defence raised by the Appellant.

In this case, the following factorsshould have been taken into consideration by the trial judge in his characterization the right: a. the nature of the action which the Appellant is claiming was done pursuant to an aboriginal right; b. the nature of the governmental regulation, statute or action being impugned; and c. the practice, custom or tradition being relied upon to establish the right; Generally, the following considerations are also relevant in the characterization of the Appellant’s right: a. the sensitivity to the Métis perspective on the meaning of the right at stake; b. the geographic or “site-specific” area at issue; and c. the context.

See Van der Peet, paras. 46, 49, 53; R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686, paras. 20-26, 50, 51; Powley, para.19. [84] The first factor is the determination of the nature of the event giving rise to the litigation. [85] In Mitchell v. Canada (MNR), 2001 SCC 33, [2001] 1 S.C.R. 911, McLachlin C.J.C. writing for the majority of the Courtstated:

14 Before we can address the question of whether an aboriginal right has been established, we must first characterize the rightclaimed. The event giving rise to litigation merely represents an alleged exercise of an underlying right; it does not, in itself, tell us thescope of the right claimed. Therefore it is necessary to determine the nature of the claimed right. At this initial stage of characterization,the focus is on ascertaining the true nature of the claim, not assessing the merits of this claim or the evidence offered in its support.[Emphasis added.] [86] In R. v.

Gladstone, (SCC), [1996] 2 S.C.R. 723, Lamer C.J. writing for the majority stated the following: 23 The first step in applying the Van der Peet test is the determination of the precise nature of the claim being made, taking intoaccount such factors as the nature of the action said to have been taken pursuant to an aboriginal right, the government regulation arguedto infringe the right, and the practice, custom or tradition relied upon to establish the right.

At this stage of the analysis the Court is, inessence, determining what the appellants will have to demonstrate to be an aboriginal right in order for the activities they were engagedin to be encompassed by s. 35(1).

There is no point in the appellants’ being shown to have an aboriginal right unless that aboriginal rightincludes the actual activity they were engaged in; this stage of the Van der Peet analysis ensures that the Court’s inquiry is tailored to theactual activity of the appellants. [87] The Appellant argued that the trial judge identified the event that gave rise to the litigation and at that same time determinedthe scope of the right claimed, which the Appellant argued is an error of law because the trial judge did not apply the full test forcharacterizing the right.

The Appellant argued that the relevant event is that he participated in an organized community hunt and that hewas hunting for food. [88] The Appellant testified that he was hunting pursuant to the MNA action plan which the Appellant argued was meant forMétis to exercise their food hunting rights publicly as a means of obtaining a judicial ruling that would secure Métis food hunting rightsin southern Alberta: Testimony of Garry Hirsekorn, Trial Transcript, vol. II, p. 568; Métis Nation of Alberta Harvesting Policy,Compendium of Evidence for the Appellant’s Memorandum of argument, Volume 1, Tab 12. Ms.

Poitras, President of the Métis Nationof Alberta, testified that according to the action plan, they would defend harvesters that were charged as long as they were clearlyabiding by the MNA policy: Testimony of Audrey Poitras, Trial Transcript Vol. IV, p. 1046. In 2007, the Government of Albertaterminated the Interim Métis Harvesting Agreement (“IMHA”) with the MNA that recognized Métis food hunting throughout theProvince of Alberta.

It was in response to the termination of the agreement that the MNA adopted a Harvesting Policy and implementedan action plan. [89] I agree with the Appellant’s argument that the fact that an individual engaged in an activity in order to challenge the law doesnot prohibit a constitutional challenge.

While the Appellant’s actions were done by way of political means, the purpose was to secure theMétis right to hunt for food and, therefore, the event that gave rise to the litigation is that the Appellant was hunting for food pursuant tothe MNA action plan. [90] The second factor is the nature of the governmental legislation or action alleged to infringe the right; the conflict between theclaim and the limitation. The Appellant argued that the trial judge should have discussed the Wildlife Act in the context of the regulatoryregime (provincial and federal) and the context of this case.

The Appellant argued that taken together, the regulatory regime’sdeficiencies, the termination of the IMHA, the implementation of the Sustainable Resources Development (“SRD”) policy and the manyharvesting charges against Métis throughout Alberta have created a repressive climate in Alberta. The Appellant submitted that theregulatory regime is deterring many Métis in Alberta from exercising the Métis right to harvest. Furthermore, the Appellant argued thatthe regime undermines the Métis’ ability to enjoy their way of life, maintain their relationship

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