Can First Nations and Metis share harvested foods between them? Courts will decide

Twenty-three trial days have been set aside in early 2020 in Fort McMurray and St. Albert to hear arguments about whether Metis and First Nations have the Constitutional right to share harvested foods.

In March 2018, Kenton Klein, who at one time served as president of the Athabasca Metis local, was charged with eight counts under the federal Fisheries Act and provincial Fishery Regulations for accepting fish from Lee Ladouceur in October 2016.

Ladouceur, a member of the Athabasca Chipewyan First Nation, had caught the fish in Lake Athabasca. During Klein’s many regular fishing trips to Fort Chipewyan, Ladouceur gave Klein 22 whole whitefish and 20 bags of walleye fillets, according to information provided by Alberta Fish and Wildlife.

“Fish caught under the authority of a treaty right are only able to be shared with family members of the individual who caught the fish, says a statement of circumstances from Alberta Fish and Wildlife, “and may not be gifted to another person(s) who are not also an Indian.”

Dwayne Roth, counsel for Klein, said the Crown is saying that Metis and First Nations are not allowed to share food with each other which is “almost ridiculous (that) we would have to go to court to try to prove that Metis and First Nations people have shared food for as long as there’s been Metis and First Nations people.”

“So we’re going to have to prove that, yes, there’s a right for Aboriginal people to share food with each other.”

The second issue Roth and co-counsel Clement Chartier, president of the Metis National Council, are hoping to settle is whether Metis have the right to hunt, fish and harvest throughout the Metis Nation homeland, and not be confined by post-1900 boundaries.

“The defence is saying the Metis community, the historic community, is the nation which runs from Red River all the way to the Rockies,” said Roth. “The borders weren’t there until 1905 and they weren’t put up by the Metis people. We travelled all over the prairies … so we’re claiming the historic Metis community is much larger than what the Crown is saying in this case.”

At issue for the Crown is that Klein is not from Alberta. While he has called Athabasca home for a number of years and can trace his roots to the Red River in Manitoba, he was born in Saskatchewan. As such, the Crown alleges he is not part of the historic Metis community in northern Alberta.

Under Alberta’s Metis Harvesting Policy, which adheres to the 2003 Powley test established by the federal court, Klein does not have the same rights as Alberta Metis, who can harvest, hunt or fish within a 160 km radius of the eight Metis settlements and 17 provincially-recognized historic and contemporary Metis communities.

Fort Chipewyan, which is one of the recognized Metis communities, is located on the western tip of Lake Athabasca. Fort Chip is also home to members of the Athabasca Chipewyan First Nation and the Mikisew Cree Nation.

“There is no case in Alberta that establishes that Metis people have a constitutionally-protected right to hunt and fish,” said Roth.

In 2007, the Metis Nation of Alberta attempted, unsuccessfully, to argue that point, using the case of Metis hunter Garry Hirsekorn, who shot and killed a mule deer in the Cypress Hills area. Hirsekorn was charged under the Wildlife Act for hunting outside of open season without a permit.

HIs counsel failed to prove that a Metis community existed in southern Alberta and that he was part of that community, two points that comprise the 10-point Powley test. The lower court’s ruling was appealed at the two levels in Alberta, losing both times and the Supreme Court of Canada refused to hear a further appeal.

Trial dates were set in Fort McMurray Federal Court on Jan. 8. The anticipated lengthiness of the trial makes it impossible to be held in Fort McMurray. Proceedings will commence Feb. 10 to Feb. 28, 2020 in St. Albert. In March, the hearing will move to Fort McMurray for community witnesses and then will return to St. Albert in May for the Crown’s expert witnesses.

“This is a significant case, once it comes forward,” said Roth. “It’s right in the heart of the oil sands, so there’s a lot at stake when people can show they have rights in the areas where all this billion-dollar oil sands operations are occurring.”

He notes that northeastern Alberta has strong Metis communities with strong historic ties and traditional land users.

Roth says once the Crown looks at the expert reports from historians and genealogists, it may decide to stay or withdraw the charges.

A constitutional case like this, he says, costs close to $200,000 to defend. A significant portion of the cost will be covered by the Fort McKay Metis Nation, who is donating Roth’s time.  Roth also serves as CEO with the Fort McKay Metis Nation. 

Northeastern Metis communities have agreed to help fund some of the research to be undertaken by the University of Alberta, while Klein’s Metis local Athabasca has plans to fundraise. If appeals are necessary, that will run up the costs. A trip to the Supreme Court will take the bill past the million-dollar mark.

Roth says he has heard that the Hirsekorn case cost “well over a million dollars.”

“Because it’s a constitutional case, there’s a lot at stake. It doesn’t just apply to my client,” he said.

“We’re talking about the constitutional rights of Aboriginal peoples. These are very significant and we have to fight for these. We can’t continue to allow Aboriginal people to be charged for practicing their constitutionally-protected rights.”

Ladouceur, who was fishing without an Indian domestic fishing licence, also faces charges.