Court Ruling Backs Alberta Metis Hunting Rights

By Clint Buehler

EDMONTON – The Alberta Metis battle to maintain their Aboriginal hunting rights in the province have been given another boost with a Provincial Court judgment.

Judge Brian Hougestol dismissed illegal hunting charges against an Alberta Metis hunter who refused to produce genealogical records to prove to provincial wildlife officers that he was Metis.

In his ruling released at the end of September, the judge said that moose hunter Dion Lizotte proved his ancestry when he produced a card identifying him as a member of the Paddle Prairie Metis Settlement, and no further proof was required.

The ruling is just the latest development in the ongoing battle between the Metis and Alberta Sustainable Resource Development (SRD)—and particularly SRD Minister Ted Morton—over Metis hunting rights. At the heart of the dispute is disagreement over who should determine who is Metis, the Metis themselves or “nameless bureaucrats” in SRD, and where in the province they should be allowed to hunt.

In his judgment, Hougestol ruled that when the province passed the Metis Settlement Act in 1990, it set out a comprehensive framework for determining membership, which suggests that the people of Alberta trusted Metis settlements to determine for themselves who was Metis.

Hougestol wrote in his judgment that “the Crown wants to create a parallel world of unnamed bureaucrats to analyze Metis genealogical records and second-guess the work of the settlements. This is inconsistent with the act, and with common sense.”

Lizotte, who is a member of his settlement’s governing council, shot a large bull moose on September 21, 2007 in the forest about 70 kilometres south of Paddle Prairie. (According to current SRD rulings, Metis living on settlements can only hunt within a 160-kilometre radius of their communities.)

He says the 6,000 members of Alberta’s eight Metis settlements should not be charged as long as they have their membership cards. “I’m a fifth-generation Metis living on the settlement. We shouldn’t have to go through this,” but some Metis say they are harassed by wildlife officers when they exercise their rights and are fearful of hunting off the settlement after he was charged and the moose he shot was seized.

“I feel a lot better that I don’t have to be scared to feed my family anymore,” he said after the judge’s decision, but that the case should never have gone to court. “We’re a land-based settlement. This should have been negotiated at the table, not in court. It would have saved a lot of people a lot of money.”

Commenting on the Lizotte decision, Gerald Cunningham, president of the Metis Settlements General Council, said “Mr. Lizotte and the Metis Settlements have won an important hunting decision for Metis settlement members.”

“We’re very pleased,” said Lizotte’s lawyer, Sean Beaver. “Ultimately we wanted the Metis people—at least those on settlements—to be able to hunt without questions about their right to do so.”

A lawyer for the Metis Nation of Alberta, said the decision challenges Morton’s approach to dealing with Metis and will help the court cases being fought by Metis who don’t live on settlements.

“We take it as a win for all Metis,” he said, and will be helpful for southern cases as well. The MNA is defending two ongoing illegal hunting cases in southern Alberta in its bid for reinstatement of IMHA policies that allowed Metis to hunt anywhere in the province.

Judge Hougestol declined to rule on the larger issue of whether Morton’s policy is valid or whether the province has failed to accommodate Aboriginal rights.

The Lizotte decision is the latest turn of events in the efforts of Alberta Metis to establish harvesting rights after the Supreme Court of Canada ruled in the Powley case in 2003 that Metis have constitutionally protected harvesting rights.

Following the Powley decision, the Metis Nation of Alberta negotiated with then Alberta Aboriginal Affairs Minister Pearl Calahasen—herself Metis—and her officials and they entered into an Interim Metis Harvesting Agreement (IMHA) to accommodate Metis hunting practices throughout the province.

That agreement worked for two and one-half years—until a change in government leadership. When Ralph Klein resigned as premier, he was replaced by Ed Stelmach. One of Stelmach’s rivals for the leadership was Ted Morton who, among his campaign promises was one to the Alberta Fish and Game Association, which had strongly objected to the IMHA, that he would revisit the agreement.

When Stelmach dropped Calahasen from cabinet and appointed Morton minister of Sustainable Resource Development—which includes fish and wildlife—Morton acted quickly, implementing a unilateral and arbitrary Metis Harvesting Policy where SRD officers now attempted to determine who is Metis in Alberta, and also excluding Metis in most of central and southern Alberta.

In August of 2007, the Metis Nation of Alberta Annual Assembly unanimously rejected Morton’s new policy and adopted its own Metis laws of the hunt, and has been defending Metis harvesters abiding by Metis laws who have been charged by the Alberta government. To date, more than two dozen Metis harvesters, including mothers, Elders and entire families have charged from across Alberta.

In April 2008, the Provincial Court of Alberta appointed one case management judge to oversee all of the Metis harvesting cases in the province.

On December 2, 2008, the Metis Nation of Alberta (MNA) launched a historic legal action against the Alberta government in the Alberta Court of Queen’s Bench. The action seeks a series of declarations that Metis in Alberta have the right to harvest throughout Alberta, and that the province’s current regulatory regime is unconstitutional in its application to the Metis.

The MNA decided to file the claim because the recent actions of the provincial government, including the termination of the IMHA, the unilateral implementation of a restrictive Metis harvesting policy and the laying of 25 charges “have created a repressive climate in Alberta that is deterring the Metis from exercising their right to harvest. This climate undermines the ability of the Metis to enjoy their way of life, maintain their relationship to the land and pass on their customs, practices and traditions to future generations.”