Credits: Bob Tymczyszyn/St. Catharines Standard/QMI AGENCY
Garry Hirsekorn, who asserted his Metis right to hunt for food was protected by the Constitution, was found guilty after shooting the deer in the fall of 2007.
The trial judge ruled that the Metis people had not established a site-specific settlement in southern Alberta prior to the arrival of the Northwest Mounted Police in 1874, which meant hunting in the area wasn't part of their history.
Jason Madden, one of the appeal lawyers, argued although the Metis had no site-specific settlement they were present in southern Alberta, but a majority of them were in the northwest area of the prairies.
"What we're saying is that in order to understand the Metis on the prairies we have to look at them as one community in the prairie not as separate little dots of communities on the map," he said.
He said the Metis in the northwest had harvesting rights throughout the area and it should apply to those who moved to southern Alberta.
"The purpose and the promise of Section 35 in the Constitution of 1982 was to protect the right of the Metis buffalo hunters of the plains."
Crown prosecutor Thomas Rothwell said he's hoping the three judges will dismiss the appeal.
"The Metis was not historically in southern Alberta and the absence of Metis preclude them from being able to establish an aboriginal right (to hunt for food)," he said.
A number of aboriginal groups including the Blood Tribe, Siksika Nation and the Metis National Council have gained interveners' status in the case.
Gary Befus, one of the lawyers for the Blood Tribe, argued that the Metis didn't have the right to hunt in the area.
Befus reinforced Rothwell's argument that the Metis people "were not there" historically.
Madden said the case can set precedence in Alberta and they're using the landmark Powley case in Ontario which reached the Supreme Court of Canada to argue for Hirsekorn.
The Powley case involved two Metis men, Steve and Roddy Powley who killed a moose in 1993, were charged, convicted and later won their appeal.
The Supreme Court decision stated that the Metis in and around Sault Ste. Marie, Ont. has aboriginal right protection by the constitution.
The Alberta Court of Appeal reserved their decision.