Justice Verville, of the Alberta Queen’s Bench has released his decision in the Kipp Kelley appeal. Without question, it is a win for Mr. Kelley and a win for the Métis Nation of Alberta.

At trial, Judge Norheim, of the Alberta Provincial Court, found Mr. Kelley guilty of trapping without a license even though Mr. Kelley was eligible and was harvesting within the terms of the IMHA. Judge Norheim found that Mr. Kelley had not established he had a Métis right to hunt and could not rely on the IMHA as a defence.

Yesterday, Justice Verville overturned Judge Norheim’s decision. The Alberta Court of Queen’s bench held that Mr. Kelley could rely on the IMHA as a defence to the charge against him. The court set aside Mr. Kelley’s conviction and Mr. Kelley as well as the IMHA were vindicated by the courts.

The appeal court was very clear: Métis harvesters in Alberta can rely on the IMHA as a defence if the Crown decides to lay unwarranted charges against them. Justice Verville said it would offend the conscience of the community and bring the administration of justice into disrepute if the courts allowed the Alberta Crown to proceed with charges against a Métis harvester who was harvesting within the terms of the IMHA. This is very strong language from the court and Métis can take comfort in the fact that the judiciary is willing to uphold the deal the Métis Nation made with the Alberta Government.

Now some people have seized on the part of the judgment where the court finds that the IMHA is not a “legally enforceable” part of Alberta regulatory regime. This is true. The Alberta Government has not done a technical legal step of making the IMHA a part of its regulatory regime.

However, the court also points out to the Alberta Government that this could be easily accomplished. All they have to do is deem the IMHA to be a regulation under the legislation. I will be writing to the Alberta Government to request that this be done in order to overcome this technical issue.

I am going to let Mr. Kelley’s legal counsel explain this issue in more detail, but I want to be clear this does not diminish the fact that the court, in fact, upheld the IMHA and recognized it as a reasonable accommodation of Métis harvesting in Alberta. Even if this technical legal issue is not resolved right away by the Alberta Government, the court has clearly said our members can rely on the IMHA for ensuring they will not be subject to prosecution.

If any of our Métis harvesters are issued a summons or charged, they should contact the MNA Head Office right away so we can engage the Alberta Government on these issues pursuant to the processes set out in the IMHA.

I also want to highlight a few other important points in the decision.

First, we are pleased that the court recognized that the Alberta Government and the MNA did the right thing following the Powley decision. The court found that following the release of the Supreme Court of Canada’s decision in Powley, the Alberta Government was under a “constitutional imperative” to consult, negotiate and accommodate Métis harvesting practices. Alberta fulfilled this constitutional imperative by negotiating the IMHA with the MNA.
At the time, entering into the IMHA was a bold step, but the court has now validated that it was the right step.

Second, Justice Verville, throughout his decision, emphasized that negotiations and accommodations, like the IMHA, are the preferred route to resolve rights issues. He noted that the IMHA not only benefits the Métis, but it benefits Alberta too since we are able to avoid the expenses related to time consuming and costly litigation.

Third, the court has now confirmed that the principles for consultation and accommodation set out by the Supreme Court of Canada in its decisions in Haifa Nation and Take River apply equally to the Métis people. This means that when Alberta consults with First Nations, it should also be consulting with Métis. We look forward to working with the Alberta Government to implement a Métis Consultation Policy in order to ensure Métis are being adequately consulted throughout the province.

Finally, I think an important point in the decision - for all Aboriginal peoples - is that the courts are willing to ensure the Crown upholds its commitments to Aboriginal peoples that are arrived at through negotiations and included within accommodation agreements.

For years, the Supreme Court has been urging the Crown and Aboriginal peoples to negotiate and reconcile their interests, rather than just resorting to litigation. However, for this reconciliation to be achieved, Aboriginal peoples need to be secure that the Crown will fulfill and implement its commitments that are arrived at through negotiations and agreements.

With this judgment, the Alberta Court of Queen’s Bench has confirmed that the courts are willing to uphold these agreements and ensure they are honorably implemented. For Alberta Métis, this means they can rely on the IMHA to exercise their harvesting practices without fear or prosecution.