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R. v. Hirsekorn.

Country/Territory
Canada
Type of court
Others
Date
Mar 14, 2011
Source
UNEP, InforMEA
Court name
Queen’s Bench
Seat of court
Medicine Hat
Judge
Wittmann.
Reference number
2011 ABQB 156
Language
English
Subject
Wild species & ecosystems, Legal questions
Keyword
Traditional rights/customary rights Indigenous peoples
Abstract
This is a summary conviction appeal of convictions for shooting wildlife not in regular season and being in possession of wildlife without a valid permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c. W-10. At trial, Provincial Court rejected Hirsekorn’s argument that the charges should be dismissed because he had an unextinguished Métis right to hunt for food under s.35 of the Constitution Act, 1982. The Blood Tribe and Siksika Nation applied to the Alberta Court of Queen’s Bench for intervenor status in the appeal. The Judge cited Rule 2.10 of the new Alberta Rules of Court, Alta. Reg. 124/2010, which provides that 'a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court'. He cited a number of cases related to intervenor status decided before the new Rules of Court came into effect. He found it unnecessary to decide whether the new Rules of Court apply to a summary conviction appeal. It appears, then, that the new Rules have not changed the approach to granting intervenor status in Alberta. Applying the test for intervenor status, the Judge held that the proposed intervenors had a 'specific and significant interest in the outcome of the appeal', as a finding of a Métis right to hunt and fish in their traditional and Treaty #7 territories 'would logically dilute the fish and game available' to members of the Blood Tribe and Siksika Nation. On the question of whether the proposed intervenors would bring a special perspective to the appeal, he noted that the Alberta government had raised concerns about the introduction of arguments related to the balancing of the s. 35 rights of First Nations and Métis, as this matter was not in evidence or argued at trial. Nevertheless, he held that the proposed intervenors 'may bring a fresh perspective to the issues the Court must decide' (at para. 24), and granted them intervenor status with several conditions attached. The intervenors may only address issues related to the content and application of the test for Métis rights from R v. Powley, [2003] 2 S.C.R. 207 as well as whether the appeal should be dismissed as a collateral attack on the Wildlife Act, they can only rely on the facts and evidence set out in the record, they have no right of appeal, and they must bear their own costs of the intervention.
Full text
COU-156909.pdf