The status of Métis harvesting in Alberta

   In past issues of the Alberta Game Warden, I wrote about a Métis harvesting case (R v Kelley ). Kelley was originally charged with hunting wildlife during a closed season when he trapped squirrels for the purpose of teaching his son to trap. The charge was laid during the time when the Interim Métis Harvesting Agreement (IMHA) was in place between the Métis Nation of Alberta (MNA) and the Métis Settlements General Council (MSGC). The IMHA granted those who were members of either group virtually the same hunting and fishing exemptions that a Canadian treaty or status Indian had. The spirit of the agreement was to grant “no more or no less” than what was afforded a treaty or status Indian. The case concluded at provincial court with a conviction, and after appeal at the Court of Queen’s Bench, with an acquittal. The Court of Queen’s Bench justice also concluded that the IMHA was “unenforceable”.

   Over the past two years, an MLA committee reviewed the IMHA together with the Supreme Court decision R v. Powley. Powley was a Métis person from Sault St. Marie, Ontario who shot a moose contrary to the provincial wildlife laws and challenged the law constitutionally. The case affirmed a Métis person’s aboriginal constitutional right to harvest wildlife for subsistence under specific circumstances when a four-part test was applied and interpreted. The MLA committee tabled recommendations that were more closely tied to the Powley decision and wildlife and fisheries management in Alberta.

   The IMHA was an interim agreement that was in force from October 21, 2004 until July 1, 2007. During that time, Alberta and the MNA and MSGC were not able to reach a final Métis harvesting agreement. Where does that leave Métis individuals and communities with respect to hunting and domestic fishing as an aboriginal right?

   Alberta is left with interpreting the Supreme Court decision R v. Powley on a case-by-case basis when issuing a Métis Domestic Fishing Licence or when a Métis person hunts wildlife outside of the regular season without a recreational hunting licence. The following document is available for public distribution.

Métis Harvesting in Alberta – July 2007

In the case 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. FINAL VERDICT Métis Harvesting The two colour variations of the Métis flag bearing the symbol of infinity.
 

Three elements are essential to the Government of Alberta’s recognition of those rights:

1. Determining who are Métis harvesters,

2. What comprises Métis harvesting rights, and

3. 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;

• that you have an ancestral connection to an historic Métis community 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 1800's;

• that you belong to a contemporary Métis community in Alberta;

• name that community and demonstrate acceptance by and involvement in that community; and

• that you are a resident of Alberta.

   Thorough information will help make the decision making process efficient.

   At this time, Alberta recognizes the eight Métis Settlements and the following 17 communities as both historic and contemporary Métis communities: Fort Chipewyan, Fort McKay, Fort Vermilion, 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.

When Hunting Can Take Place

Métis harvesters may hunt for food at all times of the year.

Where Hunting Can Take Place

   A Métis harvester may hunt for food only within the community harvesting area* of his or her community. Within that harvesting area, a Métis harvester may hunt on:

• unoccupied Crown land; and

• other land to which they have a right of access for hunting (e.g., privately-owned lands if they have first obtained the landholder’s permission to enter for the purpose of hunting).

The Recreational Access Regulation applies to Métis harvesters.

* In the absence of a more definitive description of a community’s historical harvesting area, Alberta presently considers a harvesting area to comprise the area within 160 kilometres of a community.

Where Hunting Can Not Take Place

   A Métis harvester may not hunt on land that is being put to any other use that is visibly incompatible with hunting. This determination must be made on a case-bycase basis. The safety of other persons, livestock and domestically raised animals is of primary importance. The presence of fences, signs, fields, buildings, domesticated animals or indications of farming or industrial activities all suggest uses that are visibly incompatible with hunting.

  For example, unless permission has first been obtained for hunting on such lands, Métis harvesters may not hunt on lands:

• being actively used for mining, lumbering or other industrial purposes;

• that are fenced, posted, or cultivated;

• that contain buildings that may be used or occupied;

• on which livestock or other domestically raised animals may be present.

A Métis harvester may not hunt in:

• provincial parks, recreation areas, ecological reserves or other similar lands where no hunting is allowed;

• wildlife sanctuaries, including road corridor wildlife sanctuaries.

Laws that Apply to Métis Harvesters

   Safety – laws dealing with hunting safety apply to Métis harvesters. For example, a Métis harvester is not permitted to hunt in a dangerous manner, illegally discharge a weapon or firearm (such as from a primary highway, or within 200 yards of an occupied building, or at night), discharge a weapon from a vehicle or have a loaded firearm in a vehicle. Local municipal bylaws that prohibit the discharge of weapons in some areas may also apply.

Wastage of Meat – laws that require that the edible meat of any game animal or bird not be wasted, destroyed, spoiled or abandoned apply to Métis harvesters.

Sale of Wildlife (Trafficking) – selling, buying, bartering, soliciting or trading in wildlife or wildlife parts, and offering to do so, are activities governed by the Wildlife Act and Regulations. Many of these activities are strictly prohibited, while others are regulated. Hunting for the purpose of unlawful trafficking in wildlife, including parts such as meat, trophy heads, antlers, horns, or skins, is prohibited. However, the incidental sale of skins from deer, elk, moose or pronghorn antelope that were lawfully hunted (including by a Métis harvester) is permitted under the Wildlife Act.

Registration – for the purposes of conservation and management of the following species, all persons, including Métis harvesters, must register the kill of each of these animals in person and submit certain parts:

• bighorn sheep over the age of one year must be registered within 30 days of the kill (hunter must submit the complete and unaltered skull with horns and eyes intact);

• mountain goat must be registered within 30 days of the kill (hunter must submit the incisor bar);

• grizzly bear must be registered within four business days of the kill (hunter must submit the skull and skin, and evidence of sex must be attached to the skin and visible);

• cougar must be registered within two business days of the date of the kill (hunter must submit the skull and skin, and evidence of sex must be attached to the skin and visible).

Trapping – the right of Métis harvesters to hunt for food does not include the right to trap animals for the purpose of selling their fur.

Export of Wildlife from Alberta – the export of wildlife from Alberta is governed by both federal and provincial laws. Certain types of wildlife and certain wildlife parts cannot be exported from Alberta by any person, including a Métis harvester; this includes bear paws and bear gall bladders.

Migratory Birds – certain federal laws including the Migratory Birds Convention Act and the Migratory Birds Regulations apply to all hunters, including Métis harvesters. A Métis harvester may hunt migratory game birds at all times of the year, however, bag limits, permit requirements and other laws concerning migratory game bird hunting do apply. Sustainable Resource Development defers to the Canadian Wildlife Service to provide details of the application of these laws to Métis harvesters.

Fishing

   Métis harvesters must abide by all regulations pertaining to fishing, including holding applicable fishing licences.

Sportfishing licences – these licences authorize fishing by means of angling and other methods permitted by the regulations. This licence is available to any resident of Alberta. A person who is under 16 years of age or over 65 years old does not require a licence to fish in this manner.

Métis domestic fishing licences – these licences authorize fishing for food in a specified water body with one gill net that is not over 100 yards in length and of a minimum mesh size. The licences are issued to Métis harvesters based on the following criteria:

• the person must be eligible as a Métis harvester in accordance with the criteria set out by the Supreme Court in the Powley case (Note: in addition, pursuant to the Métis Settlements Act, a member of a Métis Settlement is eligible for a licence to fish in a lake that is within or bordering the Métis Settlement in which he or she lives);

• licences are issued only for those waters identified by fisheries managers as supporting domestic fishing; an eligible applicant may be considered for a Métis domestic fishing licence authorizing fishing only in waters that are within their community harvesting area.

Readers may also view the above document on the Sustainable Resource Development web site that explains Métis Harvesting in Alberta as of July 2007. The link to the site is:

www.srd.gov.ab.ca/fishwildlife/livingwith/huntingalberta/huntingnews.aspx#MetisFishing

  Sustainable Resource Development, Fish and Wildlife Division offices are currently accepting packages from Métis individuals who may meet the requirements that were set out in the Powley decision. With the absence of a formal policy or agreement respecting Métis harvesting in Alberta, the onus rests with the Métis person to prove that they are a Métis harvester under the criteria set down in the Powley decision.

Miles Grove is a member of the
Alberta Game Warden Association in Wetaskiwin.