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 with Rob Miskosky

Oh, the webs we weave

When the Alberta Government signed off on the Interim Métis Harvesting Agreement (IMHA) back in September of 2004, I’m not sure those who signed the document were fully aware of just how far-reaching that Agreement would be. From impacting Alberta’s fish and wildlife to creating social tension clear across this province, and in many cases this country—a tension I might add that did not previously exist—the IMHA has been a burr in the saddle of outdoorsmen and women everywhere, on all sides.

Even our First Nations people have been against this Agreement as pointed out by the passing of a resolution by the Assembly of Chiefs of Treaty 6, 7, and 8 that demanded the Alberta government immediately terminate the IMHA. The Métis Nation of Alberta (MNA) did not take this resolution lightly for obvious reasons and then passed their own resolution calling for the Alberta government to allow them (the MNA) to be involved in any negotiations the provincial government had with the First Nations that might affect Métis rights.

Oh, what a tangled web the Alberta government has weaved itself.

Red squirrels are considered a furbearer and as such fall under a regulated season in Alberta.

Had due diligence taken place and this Agreement properly written following the guidelines as set down by the Powley Case, where Métis harvesting rights were limited to the Powley’s traditional lands and not the entire province of Ontario—and many would argue that was already the case in Alberta—we may not be where we are today.
And just where are we today?

Due to the over-whelming negative response created by the IMHA, as you know, an MLA committee was struck to come up with recommendations for the writing of a final agreement (read Neil Waugh’s Covers and Riffles on page 36). Those recommendations are now sitting with our Justice Department and no time frame has been given for the writing of the final agreement.

But a recent decision in a Hinton courtroom has just tangled the strands of the web a little bit more, and not favourably if you are one of the MNA’s executive who have fought so hard to obtain rights equal to those of our true First Nations people.

On December 1st, 2004, Hinton Fish and Wildlife officer Tony Brooks charged Kipp Kelley for “hunting without a licence”. Mr. Kelley was teaching his kids how to snare squirrels. Which is fine at first glance. But few realize that red squirrels are considered a furbearer and as such fall under a regulated season of which licenced trappers, be they resident or registered, must follow. That season runs from November 1 to February 28 in Alberta.

Mr. Kelley’s defence was that it was his right as a Métis under the Interim Métis Harvesting Agreement to hunt red squirrels regardless of season, and without licence. The Judge in this case, Judge Don Norheim, refuted Mr. Kelley’s defence and as such, on March 10, 2006, imposed a $25.00 fine on him—effectively convicting him of “hunting without a licence”. Mr. Kelley has since paid his fine.

But what is really interesting in this case are statements made by Judge Norheim. While I don’t have a copy of his written judgement as it has yet to be released, a source that was in the courtroom told me that Judge Norheim basically ruled that the IMHA is not outside of the law. He also said that the IMHA went well-beyond what was intended by the Supreme Court in the Powley decision.

Only those who truly need to hunt for food without licence or season should be allowed, regardless of lineage.

The fact that Mr. Kelley was charged and convicted must mean that the Interim Métis Harvesting Agreement is not worth the piece of paper it was written on. And consequently, any Métis hunting without licence and out-of-season can, and should be, charged under the Wildlife Act.
After contacting Alberta’s Justice Department in regards to the implication’s of Mr. Kelley’s case where the IMHA was concerned, I was told by Spokesperson David Dear that the Justice Department couldn’t comment at this time as the case was still before the courts. He did say, however, “He (Judge Norheim) would be delivering a written judgement and it would supercede what he (Judge Norheim) said in court.”
Now, I’m not a lawyer by any stretch of the imagination, but I would find it completely unimaginable that a judge could say one thing in a courtroom and then something entirely different in his written judgement.

According to a lawyer I talked with, if a judge did such a thing, it would make a mockery of the entire justice system. The lawyer, who asked to remain anonymous, also said he doubted we would ever see that happen.

So, where does that leave us?

Mr. Kelley was convicted and fined, meaning his Métis status does not allow him to hunt without a licence and/or hunt outside of established seasons, and Judge Norheim basically trashed the IMHA rendering it, by my estimation, useless.
The questions now are, how will this affect the way our Fish and Wildlife officers perform their duties? And, will we be seeing more charges laid against Métis harvesters hunting, fishing or trapping under the IMHA umbrella?

In an attempt to get an answer to those questions, I was told by Dave Ealey, Communications, Sustainable Resource Development, they would be unable to respond until more was known about the case. “Until we see the written interpretation we just can’t comment,” said Ealey. He did, however, admit that it certainly was an interesting case.
So once again we wait. Only this time, depending on Judge Norheim’s written judgement, the wait may be for reasons other than just a final written agreement. The wait may be because of a legal battle played out in the courts by the Métis Nation of Alberta.

I would think our Justice Department will also wait until this all plays out before rendering a decision on the final writing of a new Agreement.

Oh, the webs we weave! ■

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