Garry Hirsekorn was convicted in 2010 of hunting out of season after he shot a mule deer in 2007 near the Cypress Hills area in southeast Alberta.
His lawyers had argued that he was exercising his aboriginal rights as a Metis. The province only recognizes those rights around several northern Alberta Metis settlements.
The court denied Hirsekorn's appeal Thursday. It ruled that his lawyers failed to prove that Metis had a significant long-standing historic presence in the area before the North West Mounted Police began patrolling the region during the 1870s.
"At that point in Metis history, the Cypress Hills were not part of the traditional territory of the historic community, however defined," Justice Marina Paperny wrote in the judgment.
"Having reviewed the evidence and fact findings in this case with this test and these indicia in mind, I conclude that it falls short of meeting this lower threshold to establish a right to hunt in the environs of the Cypress Hills."
Paperny said the case did not meet the test for Metis hunting rights set out in the Supreme Court of Canada's Powley ruling. The 2003 decision granted hunting rights to Metis who live in settled communities that were established before they came under the effective control of European laws and customs.
"The plains Metis lived a more nomadic lifestyle, sometimes rarely or never returning to an established settlement. In that context, over what geographical area can the descendants of those people claim the right to hunt?" she wrote.
The Metis Nation of Alberta, which has been using the Hirsekorn case to press Alberta to recognize Metis hunting rights across the province, says it hopes the Supreme Court of Canada will hear an appeal.
Lawyer Jason Madden said the Alberta ruling is at odds with similar rulings on Metis hunting rights in Saskatchewan and Alberta.
"Aboriginal communities don't see themselves as dots on a map. She rejected our argument that the Metis on the Prairies are one community and have harvesting rights throughout that area," Madden said.
"She acknowledges that they were there and hunting, but it is not enough to meet the threshold to establish aboriginal harvesting rights, and we dispute that."
The Supreme Court's Powley ruling involved two Metis men, Steve and Roddy Powley, who shot a moose in 1993 and were charged with breaking Ontario hunting law. The men argued the Constitution protects the right of Metis to hunt for food.
The Supreme Court ruled in their favour, saying that people in their Metis community in and around Sault Ste. Marie, Ont., have the aboriginal right under the Constitution to hunt for food.
Madden said any appeal will argue that the Powley ruling was based on Metis people who generally live in woodland areas of the upper Great Lakes of Ontario. The Powley test should therefore also be applied within the context of historic Metis buffalo hunters who followed the animals across what is present-day Alberta, Saskatchewan and Manitoba.
"The (Alberta) court misapplied the Powley test in relation to the Metis of the Prairies," he said.
"It is the reality of an aboriginal people following a migratory herd. They are never going to be actively harvesting in the same location repetitively again and again."
Madden said the Metis Nation of Alberta hopes the Supreme Court will hear the appeal sometime this fall, which would be 10 years after the original Powley ruling.
— By John Cotter in EdmontonSuggest a correction