MEDICINE HAT — Alberta’a Metis have lost a key legal battle in their fight to exercise what they consider their constitutional rights to hunt and fish in the province.
Provincial court Judge Ted Fisher found Garry Hirsekorn, 51, of Redcliff, Alta., guilty Wednesday of breaking the law when he took part in two hunts in southern Alberta. He was fined $700.
“An aboriginal hunter may not just ignore apparently valid hunting laws because he subjectively decided that they breach a constitutional right, nor because that hunter is part of a bigger action plan conceived by the Metis Nation of Alberta to force the Alberta government into negotiating a new agreement,” he said.
Hirsekorn expressed disappointment in the ruling as supporters passed a bucket to collect donations to pay the fine imposed by the court.
“I know who I am,” he said. “I know who my children are. I’ll do whatever I have to do to keep our people strong.”
Hirsekorn was charged in October 2007 after taking a deer near the Cypress Hills, 40 kilometres southeast of Medicine Hat.
His actions — as well as those of nearly 30 other Metis hunters in south and central Alberta during late-2007 to early-2008 — were part of an organized plan to put the aboriginal group’s rights claims before the courts.
“The hunts were organized pursuant to the plan for a political purpose,” Fisher stated to the court.
He said that meant Hirsekorn was neither hunting for subsistence nor ceremonial purposes, “therefore, the constitutional argument before the court fails.”
Fisher suggested the rights issue should have been dealt with by pursuing the matter in civil court.
The judge sided with the Alberta government’s lawyers, who argued the Supreme Court’s 2003 Powley decision put the onus of the defence to prove the existence of a historic Metis community if hunting rights were to be recognized.
Fisher said in this case, the defence did not prove the Metis were present as a community in southern Alberta until after 1874 and the arrival of the North West Mounted Police.
Under provincial law, Metis can hunt and fish year-round near traditional Metis settlements in the north.
Hirsekorn’s lawyers, Jean Teillet and Jason Madden, said they intend to appeal the decision, particularly on Fisher’s point about the political purpose behind the hunt.
Madden said other aboriginal rights cases that have ended in the Supreme Court have also been political.
“The idea Metis and First Nations cannot use quasi-criminal proceedings and defend on constitutional rights — we don’t agree with that,” said Madden.
“We asked the court to take a more generous approach to understanding the Metis on the Prairies and that was rejected. We are going to continue the fight. We see this as the next case that will move toward the higher courts to get greater clarity and understanding on Metis harvesting rights.”
Outside the courtroom, Alberta Justice lawyer Tom Rothwell said it will take time to decide whether to apply Fisher’s ruling to other Metis hunters facing hunting charges in southern Alberta.
Rothwell said he agreed with the judge’s decision that Metis in southern Alberta did not meet the definition of a historic community as outlined by the Supreme Court.
“The test is complex,” he said. “However, aboriginal rights are important in Canada and it’s important to ensure rights-holders are recognized.”
The president of Alberta Fish and Game Association also applauded the judgment. Quentin Bochar said all Albertans should have equal rights to enjoy and appreciate wildlife.
“Hopefully the same level headed decisions will be achieved in the remaining cases yet to be heard,” he said.
Two other Metis men were originally charged with Hirsekorn. Bruce Bates pleaded guilty near the beginning of the trial and was fined $700. Ron Jones was found dead earlier this year in an apparent murder-suicide.