Garry Ivan Hirsekorn v. Her Majesty the Queen

(Alberta) (Civil) (By Leave)


Aboriginal law - Aboriginal rights, Hunting, Métis.


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Aboriginal law — Aboriginal rights — Hunting — Métis — Applicant charged with hunting contrary to provincial statute — Whether Court of Appeal erred in its interpretation and application of R. v. Powley, 2003 SCC 43 to the facts of this case — What is the proper interpretation and application of Powley to prairie Métis — Wildlife Act, R.S.A. 2000, c. W-10

The applicant, Garry Hirsekorn, is Métis. In 2007, he participated in a hunt organized by the Métis Nation of Alberta in response to the Alberta Government’s cancellation of the Interim Métis Harvesting Agreement which had been negotiated and entered into following this Court’s recognition of Métis harvesting rights in R. v. Powley, 2003 SCC 43. During the course of that hunt, the applicant shot a mule deer near Elkwater, a community on the western edge of the Cypress Hills in southeastern Alberta. He was and nineteen other Métis hunters were charged with hunting wildlife outside an open 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. Nineteen other hunters throughout Alberta were charged with various wildlife offences.

The applicant filed a constitutional notice claiming that ss. 25(1) and 55(1) of the Wildlife Act were of no force and effect in their application to him. He defended the charges against him on the ground that, as a Métis person within the meaning of s 35(2) of the Constitution Act, he had an aboriginal right to hunt for food and that the Wildlife Act unjustifiably infringed that right.

The legal proceedings against most of the other Métis hunters were adjourned pending the outcome of the applicant’s case. After a year-long trial, the applicant was convicted on both counts pending against him.