R. v. Badger

R. v. Badger
Collection
Supreme Court Judgments
Date
1996-04-03
Report
[1996] 1 SCR 771
Case number
23603
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank
On appeal from
Alberta
Subjects
Aboriginal law
Notes
SCC Case Information: 23603
Decision Content
R. v. Badger, [1996] 1 S.C.R. 771
Wayne Clarence Badger Appellant
v.
Her Majesty The Queen Respondent
and between
Leroy Steven Kiyawasew Appellant
v.
Her Majesty The Queen Respondent
and between
Ernest Clarence Ominayak Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Manitoba,
the Attorney General for Saskatchewan,
the Federation of Saskatchewan Indian Nations,
the Lesser Slave Lake Indian Regional Council,
the Treaty 7 Tribal Council,
the Confederacy of Treaty Six First Nations,
the Assembly of First Nations and
the Assembly of Manitoba Chiefs Interveners
Indexed as: R. v. Badger
File No.: 23603.
1995: May 1, 2; 1996: April 3.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
on appeal from the court of appeal for alberta
Indians -- Treaty rights -- Hunting on privately owned land in tract ceded by treaty -- Violations of Wildlife Act -- Whether status Indians have right to hunt for food on privately owned land lying within tract ceded by treaty -- Whether hunting rights extinguished or modified by Natural Resources Transfer Agreement -- Whether licensing and game limitations apply to status Indians -- Constitution Act, 1982, s. 35(1) -- Treaty No. 8 (1899) -- Natural Resources Transfer Agreement (Constitution Act, 1930, Schedule 2), para. 12 -- Alta. Reg. 50/87, ss. 2(2), 25 -- Alta. Reg. 95/87, s. 7.
The appellants were status Indians (under Treaty No. 8) who had been hunting for food on privately owned lands falling within the tracts surrendered by the Treaty. Each was charged with an offence under the Wildlife Act (the Act). Their trials and appeals proceeded together. The appellant Badger, who was hunting on scrub land near a run‑down but occupied house, was charged with shooting a moose outside the permitted hunting season contrary to s. 27(1) of the Act. The appellant Kiyawasew, who had been hunting on a posted, snow‑covered field that had been harvested that fall, and the appellant Ominayak, who had been hunting on uncleared muskeg, both had shot moose and were charged, under s. 26(1) of the Act, with hunting without a licence. All were all convicted in the Provincial Court. They unsuccessfully appealed their summary convictions, first to the Court of Queen's Bench and then to the Court of Appeal, challenging the constitutionality of the Act in so far as it might affect them as Crees with status under Treaty No. 8. The constitutional question raised: (1) whether status Indians under Treaty No. 8 have the right to hunt for food on privately owned land which lies within the territory surrendered under that Treaty; (2) whether not the hunting rights set out in Treaty No. 8 have been extinguished or modified by para. 12 of the Natural Resources Transfer Agreement, 1930 (NRTA); and, (3) the extent, if any, ss. 26(1) (requiring a hunting licence) and 27(1) (establishing hunting seasons) of the Act applied to the appellants.
Held: The appeals of Wayne Clarence Badger and Leroy Steven Kiyawasew should be dismissed. The appeal of Ernest Clarence Ominayak should be allowed and a new trial directed so that the issue of the justification of the infringement created by s. 26(1) of the Wildlife Act and any regulations passed pursuant to that section may be addressed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.: Treaty No. 8 guaranteed the Indians the "right to pursue their usual vocations of hunting, trapping and fishing" subject to two limitations, a geographic limitation and the right of government to make regulations for conservation purposes.
Certain principles apply in interpreting a treaty. First, a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. Second, the honour of the Crown is always at stake; the Crown must be assumed to intend to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions must be resolved in favour of the Indians and any limitations restricting the rights of Indians under treaties must be narrowly construed. Finally, the onus of establishing strict proof of extinguishment of a treaty or aboriginal right lies upon the Crown.
The NRTA did not extinguish and replace the Treaty No. 8 right to hunt for food. Paragraph 12 of the NRTA clearly intended to extinguish the treaty protection of the right to hunt commercially but the right to hunt for food continued to be protected and, indeed, was expanded. Treaty rights, absent direct conflict with the NRTA, were not modified. The Treaty right to hunt for food accordingly continues in force and effect.
Three preliminary observations were made regarding the NRTA. First, the "right of access" in the NRTA does not refer to a general right of access but, rather, is limited to a right of access for the purposes of hunting. Second, the extent of the treaty right to hunt on privately owned land may well differ from one treaty to another, given differences in wording. Finally, the applicable interpretative principles must be applied. The words must be interpreted as they would naturally have been understood by the Indians at the time of signing.
The geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use. This approach is consistent with the oral promises made to the Indians at the time the Treaty was signed, with the oral history of the Treaty No. 8 Indians, with earlier case law and with the provisions of the Act itself. It is neither unduly vague nor unworkable. Land use must be considered on a case-by-case basis, however, because the approach focuses upon the use being made of the land.
The appeals of Messrs. Badger and Kiyawasew must be dismissed. The land was being visibly used. Since they did not have a right of access to these particular tracts of land, their treaty right to hunt for food did not extend there. The limitations on hunting set out in the Act accordingly did not infringe upon their existing right and were properly applied. The geographical limitations upon the Treaty right to hunt for food did not affect Mr. Ominayak who was hunting on land not being put to any visible use.
The Indians would have understood that, by the terms of the Treaty, the government would be permitted to pass regulations with respect to conservation given the existence of conservation laws existing prior to signing the Treaty. The provincial government's regulatory authority under the Treaty and the NRTA (which transferred regulatory authority for conservation purposes to the provincial authorities) did not extend beyond the realm of conservation. The constitutional provisions of s. 12 of NRTA authorizing provincial regulations made it unnecessary to consider s. 88 of the Indian Act which provided that provincial laws of general application applied to Indians provided that those laws were not in conflict with aboriginal or treaty rights.
The public safety regulations, which formed the first step of a two-step licensing scheme, did not infringe any aboriginal or treaty rights. These regulations required all hunters to take gun safety courses and pass hunting competency tests and accordingly protected all hunters, including Indians. Reasonable regulations aimed at ensuring safety do not infringe aboriginal or treaty rights to hunt for food.
The second step of the licensing scheme, the conservation component, constituted a prima facie infringement. Under the Treaty, no limitation as to method, timing and extent of Indian hunting can be imposed. The present licensing scheme, however, imposes conditions on the face of the licence as to hunting method, the kind and numbers of game, the season and the permissible hunting area. These limitations are in direct conflict with the treaty right. Moreover, no provisions currently exist for "hunting for food" licences.
Any infringement of the rights guaranteed under the Treaty or the NRTA must be justified using the Sparrow test. This analysis provides a reasonable, flexible and current method of assessing the justifiability of conservation regulations and enactments. It must first be asked if there was a valid legislative objective, and if so, the analysis proceeds to a consideration of the special trust relationship and the responsibility of the government vis-à-vis the aboriginal people. Further questions might deal with whether the infringement was as little as was necessary to effect the objective, whether compensation was fair, and whether the aboriginal group was consulted with respect to the conservation measures.
The government led no evidence with respect to justification. The Court could not find justification in the absence of such evidence.
Per Lamer C.J. and Sopinka J.: The treaty rights were restated, merged and consolidated in the NRTA and so their preservation was assured by being placed in a constitutional instrument. The sole source for a claim involving the right to hunt for food is, therefore, the NRTA. The Treaty may be relied on for the purpose of assisting in the interpretation of the NRTA but it has no other legal significance.
Two key interpretative principles apply to treaties. First, any ambiguity in the treaty will be resolved in favour of the Indians. Second, treaties should be interpreted in a manner that maintains the integrity of the Crown, particularly the Crown's fiduciary obligation toward aboriginal peoples. These interpretative principles apply equally to the rights protected by the NRTA.
The rights of Indians pursuant to either the Treaty or the NRTA would, at the time either was agreed to, be understood to be subject to governmental regulation for conservation purposes. The rights protected by the NRTA are not constitutional rights of an absolute nature precluding any governmental regulation.
Section 35(1) of the Constitution Act, 1982 should not be the standard against which governmental regulation permitted by the NRTA, and the extent of the protection of the appellants' rights in the face of such regulation, should be assessed. Section 35(1) cannot provide constitutional protection to rights already constitutionally protected; nor does it apply to another constitutional provision.
In the absence of a mechanism in the NRTA, the Court must develop a test through which the province's right to legislate with respect to conservation can be balanced against the Indians' right to hunt for food. The Sparrow test, developed in the context of s. 35(1) , protects aboriginal rights while also permitting governments to legislate for legitimate purposes where the legislation is a justifiable infringement on those protected rights. This test applies equally well to the regulatory authority granted to the provinces under para. 12 of the NRTA. In applying the Sparrow criteria here, it is important to bear in mind that what is being justified is the exercise of a power granted to the provinces which is made subject to the right to hunt for food.
Cases Cited
By Cory J.
Applied: R. v. Sparrow, [1990] 1 S.C.R. 1075; considered: R. v. Horse, [1988] 1 S.C.R. 187; Myran v. The Queen, [1976] 2 S.C.R. 137; R. v. Mousseau, [1980] 2 S.C.R. 89; R. v. Bartleman (1984), 55 B.C.L.R. 78; referred to: R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Cardinal (1977), 36 C.C.C. (2d) 369; R. v. Ominayak (1990), 108 A.R. 239; R. v. Sioui, [1990] 1 S.C.R. 1025; Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. Taylor (1981), 34 O.R. (2d) 360; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Frank v. The Queen, [1978] 1 S.C.R. 95; R. v. Wesley, [1932] 2 W.W.R. 337; Prince v. The Queen, [1964] S.C.R. 81; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; R. v. Sutherland, [1980] 2 S.C.R. 451; R. v. Smith, [1935] 2 W.W.R. 433; R. v. Mirasty, [1942] 1 W.W.R. 343; R. v. Strongquill, [1953] 8 W.W.R. (N.S.) 247; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; Kruger v. The Queen, [1978] 1 S.C.R. 104; R. v. Sikyea, [1964] 2 C.C.C. 325, aff'd [1964] S.C.R. 642; Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Eninew (1984), 12 C.C.C. (3d) 365; R. v. Agawa (1988), 65 O.R. (2d) 505; R. v. Napoleon, [1986] 1 C.N.L.R. 86; R. v. Fox, [1994] 3 C.N.L.R. 132.
By Sopinka J.
Applied: R. v. Sparrow, [1990] 1 S.C.R. 1075; followed: Frank v. The Queen, [1978] 1 S.C.R. 95; referred to: R. v. Sutherland, [1980] 2 S.C.R. 451; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; R. v. Horseman, [1990] 1 S.C.R. 901; Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.
Statutes and Regulations Cited
Alta. Reg. 50/87, ss. 2(2), 25.
Alta. Reg. 95/87, s. 7.
Canadian Charter of Rights and Freedoms, s. 15 .
Constitution Act, 1867, s. 93 .
Constitution Act, 1930, s. 1.
Constitution Act, 1982, s. 35(1) .
Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Schedule 2), para. 12.
Treaty No. 8, made June 21, 1899 and Adhesions, Reports, etc. Reprinted from the 1899 edition by Roger Duhamel, Queen's Printer and Controller of Stationery, 1966.
Wildlife Act, S.A. 1984, c. W‑9.1, ss. 15(1)(c), 26(1), 27(1).
Authors Cited
Daniel, Richard. "The Spirit and Terms of Treaty Eight". In Richard Price, ed., The Spirit of the Alberta Indian Treaties. Montreal: Institute for Research on Public Policy, 1979.
Friesen, Jean. Grant me Wherewith to Make my Living. Winnipeg: T.A.R.R. Centre, 1985.
Fumoleau, René. As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870‑1939. Toronto: McClelland and Stewart, 1973.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Toronto: Carswell, 1992.
Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba. Winnipeg: The Public Inquiry, 1991.
Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North‑West Territories. Toronto: Belfords, Clarke, 1880.
APPEALS from a judgment of the Alberta Court of Appeal (1993), 8 Alta. L.R. (3d) 354, 135 A.R. 286, 33 W.A.C. 286, [1993] 5 W.W.R. 7, [1993] 3 C.N.L.R. 143, affirming a judgment of the Court of Queen's Bench affirming the appellants' convictions for offences under the Wildlife Act. Appeals of Wayne Clarence Badger and Leroy Steven Kiyawasew dismissed; appeal of Ernest Clarence Ominayak allowed and a new trial directed.
Leonard Mandamin and Alan D. Hunter, Q.C., for the appellants.
Robert J. Normey and Margaret Unsworth, for the respondent.
I. G. Whitehall, Q.C., and R. Stevenson, for the intervener the Attorney General of Canada.
Kenneth J. Tyler, for the intervener the Attorney General of Manitoba.
P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.
Mary Ellen Turpel, Donald E. Worme and Gerry Morin, for the intervener the Federation of Saskatchewan Indian Nations.
Priscilla Kennedy, for the intervener the Lesser Slave Lake Indian Regional Council.
Gerard M. Meagher, Q.C., and Eugene J. Creighton, for the intervener the Treaty 7 Tribal Council.
Edward H. Molstad, Q.C., James A. O'Reilly and Wilton Littlechild, for the intervener the Confederacy of Treaty Six First Nations.
Peter K. Doody and John E. S. Briggs, for the intervener the Assembly of First Nations.
Jack R. London, Q.C., and Martin S. Minuk, for the intervener the Assembly of Manitoba Chiefs.
The reasons of Lamer C.J. and Sopinka J. were delivered by
1 Sopinka J. -- I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleague, Justice Cory, and I am in agreement with his disposition of the appeal and with his reasons with the exception of his exposition of the relationship between Treaty No. 8, the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Schedule 2) (NRTA), and s. 35 of the Constitution Act, 1982 .
2 In my view, the rights of Indians to hunt for food provided in Treaty No. 8 were merged in the NRTA which is the sole source of those rights. While I agree that the impugned provision of the Wildlife Act, S.A. 1984, c. W-9.1, infringes the constitutional right of Indians to hunt for food, I disagree that this constitutional right is one covered by s. 35(1) of the Constitution Act, 1982 . I agree, however, that the constitutional right to hunt for food must be balanced against the right of the province to pass laws for the purpose of conservation and that this balancing may be carried out on the basis of the principles set out in R. v. Sparrow, [1990] 1 S.C.R. 1075.
3 There is no disagreement that the NRTA:
(a)duplicated the right of Indians to hunt for food which was contained in Treaty No. 8;
(b)widely extended the geographical area to include the whole of the province rather than being limited to the tract of land surrendered;
(c)shifted responsibility for passing game laws from the federal government to the provinces;
(d)eliminated the right to hunt for commercial purposes;
(e)is a constitutional document and the Treaty is not, although the Treaty receives constitutional protection by virtue of s. 35(1) of the Constitution Act, 1982 .
4 In these circumstances, I am of the view that it was clearly the intention of the framers to merge the rights in the Treaty in the NRTA. To characterize the NRTA as modifying the Treaty is to treat it as an amending document to the Treaty. This clearly was not the intent of the NRTA. In enlarging the area in which hunting for food was permitted to extend to the whole of the province, it could not be suggested that the NRTA extended the Treaty to all of the province. Rather, the right to hunt for food was extended by the NRTA to the whole of the province, including the area covered by the Treaty. An Indian hunting on land outside the Treaty lands could not claim to be covered by the Treaty. If the NRTA merely modified the Treaty, an Indian hunting on Treaty lands could claim the right under the Treaty while an Indian hunting in other parts of the province could claim only under the NRTA. This would invite bifurcation of the rights of Indians hunting for food in the province.
5 Similarly, the provisions which transferred to the province the power to pass gaming laws for the purpose of conservation could not have been intended simply to amend the Treaty. As an amendment to the Treaty, this provision would have no constitutional force and could not alter the constitutionally entrenched division of powers. It might be suggested that the NRTA both amended the Treaty and, as an independent constitutional document, amended the Constitution. If this were the intent, it is difficult to understand why all the terms of the Treaty relating to the right to hunt for food were replicated in NRTA. It must have been the intention to merge these rights in the NRTA so that they could be balanced with the power of the provinces to legislate for conservation purposes. In order to achieve a reasonable balance between them, it was important that they both appear in one document having constitutional status.
6 I can suggest no reason why the framers of the NRTA would have wanted to maintain any aspects of the Treaty except as an interpretative tool. They surely did not do so in order to allow these rights to be recognized under s. 35(1) of the Constitution Act, 1982 which appears to be the sole present justification for preserving the Treaty. However, even that justification loses any force when considered in light of the fact that the NRTA is itself a constitutional document and recognition under s. 35(1) is unnecessary for the protection of these important Indian rights.
7 From the foregoing, I conclude that it was the intention of the framers of para. 12 of the NRTA to effectuate a merger and consolidation of the Treaty rights. This was the view of Dickson J. (as he then was), speaking for the Court, in Frank v. The Queen, [1978] 1 S.C.R. 95, at p. 100:
It would appear that the overall purpose of para. 12 of the Natural Resources Transfer Agreement was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food.
As pointed out, these rights were restated in the NRTA and their preservation was assured by being placed in a constitutional instrument.
8 If this was the intention, and I conclude that it was, then the proper characterization of the relationship between the NRTA and the Treaty rights is that the sole source for a claim involving the right to hunt for food is the NRTA. The Treaty rights have been subsumed in a document of a higher order. The Treaty may be relied on for the purpose of assisting in the interpretation of the NRTA, but it has no other legal significance.
9 The fact that the source of the appellants' rights to hunt and fish for sustenance is found within the provisions of the NRTA does not alter the analysis that has previously been employed in the interpretation of treaty rights. The key interpretative principles which apply to treaties are first, that any ambiguity in the treaty will be resolved in favour of the Indians and, second, that treaties should be interpreted in a manner that maintains the integrity of the Crown, particularly the Crown's fiduciary obligation toward aboriginal peoples. These principles apply equally to the rights protected by the NRTA; the principles arise out of the nature of the relationship between the Crown and aboriginal peoples with the result that, whatever the document in which that relationship has been articulated, the principles should apply to the interpretation of that document. I find support for this reasoning in the prior decisions of this Court concerning the interpretation of the NRTA. In R. v. Sutherland, [1980] 2 S.C.R. 451, for example, this Court specifically stated, at p. 461, that the NRTA should be given a "broad and liberal construction", and, at p. 464, that any ambiguity should be "interpreted so as to resolve any doubts in favour of the Indians". Moreover, this position is compatible with the concept that the NRTA constitutes a merger and consolidation of treaty rights, and with the view that it was through the enactment of the NRTA that the "federal government attempted to fulfil their treaty obligations" (see Moosehunter v. The Queen, [1981] 1 S.C.R. 282, at p. 293).
Validity of the provisions of the Wildlife Act
10 In light of my conclusion that the right of Indian persons to hunt for food is constitutional in nature, the issue remaining for determination is whether the provisions of the Wildlife Act under which the appellants were convicted are constitutionally permissible. On the bare wording of para. 12 of the NRTA, it appears as though such an issue could never arise. The NRTA grants legislative power over "gaming" subject to the Indians' right to hunt for food, apparently suggesting that the province has no jurisdiction to legislate in relation to those rights. This interpretation arises out of the mandatory language used in para. 12, wherein the legislative power is granted to the province, but qualified by the statement that the power exists "provided, however, that the said Indians shall have the right. . . ."
11 The reasoning in R. v. Horseman, [1990] 1 S.C.R. 901, informs us that such a formalistic interpretation of the language of the NRTA is incorrect. At the time the treaties that preceded the NRTA were signed, there was already in place legislation enacted for conservation purposes which affected the Indians' rights. Indeed, there existed total bans on the hunting of certain species. As a result, at the time the treaties were signed and, even more so, at the time that the NRTA was agreed to by the provinces and the federal government, it would have been clearly understood that the rights of Indians pursuant to either document would be subject to governmental regulation for conservation purposes. The rights protected by the NRTA thus cannot be viewed as being constitutional rights of an absolute nature for which governmental regulation is prohibited.
12 How, then, is the governmental regulation permitted by the NRTA, and the extent of the protection of the appellants' rights in the face of such regulation, to be assessed? Cory J. has taken the position that the standard against which the validity of the Wildlife Act is to be assessed is s. 35(1) of the Constitution Act, 1982 , and the test set out in Sparrow, supra. I am unable to agree with my colleague on this point. Section 35(1) was intended to provide constitutional protection for aboriginal rights and treaty rights that did not enjoy such protection. It cannot have been intended to be redundant and provide constitutional protection for rights that already enjoyed constitutional protection. Moreover, para. 12 of the NRTA is a constitutional provision and, as such, s. 35(1) has no direct application to it. Infringements of constitutional rights cannot be remedied by the application of a different constitutional provision. As Estey J. stated in Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1207, the Canadian Charter of Rights and Freedoms "cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 ". That case concerned the application of s. 15 of the Charter to s. 93 of the Constitution Act, 1867 . Although the case is not directly on point with the issues arising in this appeal, in my view, Estey J.'s comment provides support for the position that constitutional provisions enacted later in time are not to be read as impliedly amending the earlier enacted provisions. (See Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 1183.) Nor are later provisions of the constitution applicable in terms of the interpretation of earlier provisions. On that reasoning, s. 35(1) is inapplicable to the provision of the NRTA that protects the right of aboriginal persons to hunt for food.
13 That is not to say, however, that the principles underlying the interpretation of s. 35(1) have no relevance to the determination of whether a particular legislative enactment has an acceptable purpose and whether it constitutes an acceptable limitation on the rights granted by the NRTA. There is no method provided in the NRTA whereby government measures that may impinge upon the rights the same document grants to Indians can be scrutinized. It is clear, however, that the NRTA does require a balancing of rights. The right of the province to legislate with respect to conservation must be balanced against the right granted to the Indians to hunt for food. Thus, it falls to the Court to develop a test through which this task can be accomplished. In Sparrow, this Court developed principles for balancing the constitutionally protected right to fish for food against the federal government's power to pass laws for conservation. Although the Sparrow test was developed in the context of s. 35(1) , the basic thrust of the test, to protect aboriginal rights but also to permit governments to legislate for legitimate purposes where the legislation is a justifiable infringement on those protected rights, applies equally well to the regulatory authority granted to the provinces under para. 12 of the NRTA as to federal power to legislate in respect of Indians.
14 In this way, the Sparrow test is applied to the NRTA by analogy, with the result that the Court will have a means by which to ensure that the rights in the NRTA are protected, but that provincial governments are also provided with some flexibility in terms of their ability to affect those rights for the purpose of legislating in relation to conservation. As Cory J. points out, the criteria set out in Sparrow do not purport to be exhaustive and are to be applied flexibly. In applying them in this context, it is important to bear in mind that what is being justified is the exercise of a power granted to the provinces, which power is made subject to the right to hunt for food. Both are contained in a constitutional document. The application of the Sparrow criteria should be consonant with the intention of the framers as to the reconciliation of these competing provisions.
15 I agree with Cory J. that, in the absence of evidence with respect to justification, there must be a new trial and I would dispose of the appeal as suggested by him.
16 The constitutional question and answers are as follows:
If Treaty 8 confirmed to the Indians of the Treaty 8 Territory the right to hunt throughout the tract surrendered, does the right continue to exist or was it extinguished and replaced by para. 12 of the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, 20-21 George V, c. 26 (U.K.)), and if the right continues to exist, could that right be exercised on the lands in question and, if so, was the right impermissibly infringed upon by s. 26(1) or s. 27(1) of the Wildlife Act, S.A. 1984, c. W-9.1, given Treaty 8 and s. 35(1) of the Constitution Act, 1982 ?
17 The right to hunt for food referred to in Treaty No. 8 was merged in the NRTA which is the sole source of the right.
18 Sections 26(1) and 27(1) of the Wildlife Act did not infringe the constitutional rights of Mr. Badger or Mr. Kiyawasew to hunt for food.
19 Mr. Ominayak was exercising his constitutional right to hunt for food. Section 26(1) of the Wildlife Act is a prima facie infringement of his right to hunt for food under NRTA and is invalid unless justified.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by
20 Cory J. -- Three questions must be answered on this appeal. First, do Indians who have status under Treaty No. 8 have the right to hunt for food on privately owned land which lies within the territory surrendered under that Treaty? Secondly, have the hunting rights set out in Treaty No. 8 been extinguished or modified as a result of the provisions of para. 12 of the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Schedule 2)? Thirdly, to what extent, if any, do s. 26(1) and s. 27(1) of the Wildlife Act, S.A. 1984, c. W‑9.1, apply to the appellants?
Factual Background
21 Each of the three appellants was charged with an offence under the Wildlife Act. Their trials and appeals have proceeded together.
22 The facts are straightforward and undisputed. The appellant Wayne Clarence Badger was charged with shooting a moose outside the permitted hunting season contrary to s. 27(1) of the Wildlife Act. The appellants Leroy Steven Kiyawasew and Ernest Clarence Ominayak, who had also shot moose, were charged, under s. 26(1) of the same statute, with hunting without a licence. All three appellants, Cree Indians with status under Treaty No. 8, were hunting for food upon lands falling within the tracts surrendered to Canada by the Treaty.
23 The lands in question were all privately owned. Mr. Badger shot a moose on brush land with willow regrowth and scrub. There were no fences or signs posted on the land, but a farm house was located a quarter mile from the place where the moose was shot. Mr. Kiyawasew was hunting on a snow‑covered field. There was no fence, but Mr. Kiyawasew testified that he had passed old run‑down barns shortly before he stopped to shoot the moose. He had seen signs which were posted on the land but he was unable to read them from the road. Mr. Ominayak was hunting on uncleared muskeg. There were no fences, signs or buildings in the vicinity.
24 The appellants were all convicted in the Provincial Court of Alberta. They appealed their summary convictions to the Court of Queen's Bench, challenging the constitutionality of the Wildlife Act in so far as it might affect them as Crees with status under Treaty No. 8. The Court of Queen's Bench affirmed the convictions. The appellants' appeals to the Alberta Court of Appeal were also dismissed.
Judgments Below
Alberta Court of Queen's Bench
25 Foster J., in brief reasons, held that R. v. Horseman, [1990] 1 S.C.R. 901, decided that Treaty No. 8 had been modified by the Natural Resources Transfer Agreement, 1930 (hereinafter "NRTA"). Accordingly, an individual who comes within the ambit of Treaty No. 8 may hunt in order to obtain food on unoccupied Crown lands or on other lands to which he or she may have a right of access. This is the existing hunting right which is protected by s. 35(1) of the Constitution Act, 1982 . Foster J. also relied upon R. v. Cardinal (1977), 36 C.C.C. (2d) 369 (Alta. C.A.), and R. v. Ominayak (1990), 108 A.R. 239 (Alta. C.A.), to hold that an individual does not, without more, have a right of access to private lands. As a result, hunting on those lands was not protected under s. 35(1) . Accordingly, she dismissed the appeals.
Court of Appeal (1993), 135 A.R. 286
26 Although all three judges of the Court of Appeal agreed that the appellants' appeals should be dismissed, they travelled by different routes to reach that conclusion.
Per Kerans J.A.
27 Kerans J.A. concluded that it was not necessary to decide either if the hunting in question was protected under Treaty No. 8 or if Alberta could make laws that derogated from treaty rights. Rather, he held that pursuant to Horseman, supra, any treaty right to hunt other than on Crown lands had been extinguished by the NRTA. The "merger and consolidation" theory applied in Horseman was effectively a theory of "extinguishment and replacement". Because the Treaty No. 8 hunting right had been extinguished by the NRTA, reference could not be made to the Treaty to determine the scope of the "right of access" to hunt on the "other lands" referred to in the NRTA. As a result of this finding, he dismissed the appeals.
Per Lieberman J.A.
28 Lieberman J.A. held that Horseman, supra, defeated the appellants' position in this case. He determined, at p. 357, that the "entrenchment of treaty rights in s. 35(1) of the [Constitution Act], 1982 has no application to the hunting rights conferred by Treaty No. 8" which he found had been extinguished by the NRTA. Thus, he concluded that the terms of the Wildlife Act prevailed and the appeals must be dismissed.
Per Conrad J.A.
29 Conrad J.A. held that since Horseman, supra, dealt with the right to hunt commercially on Crown lands, it was not binding on the issue as to whether a treaty right to hunt on private lands had been extinguished. Conrad J.A. observed that the question of whether Treaty No. 8 gave the appellants the right to hunt on privately owned lands required that consideration be given to the meaning of "unoccupied" Crown lands in the NRTA and of "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes" in Treaty No. 8. Conrad J.A. concluded that Crown lands would not be "unoccupied" merely because they were not put to some visible use. She found that the words "required or taken up" for "other purposes" were critical. She held that if the Crown's interest was alienated or transferred to a private owner, the Crown had "required or taken up" the land under the Treaty and the land was no longer "unoccupied" under the NRTA. She concluded that even if "occupied" as defined in R. v. Horse, [1988] 1 S.C.R. 187, refers only to private lands visibly in use, she would extend the ratio of Horse, supra, and find that there is no treaty right to hunt on private land, regardless of whether or not it is in visible use. Therefore, she concluded that Treaty No. 8 did not reserve to the appellants the right to hunt on the privately owned lands in question and that the Wildlife Act did not infringe the right protected under s. 35(1) .
30 In the event that she was wrong on that issue, Conrad J.A. went on to hold that if the Treaty did give the appellants the right to hunt on private lands, those rights had not been extinguished by the NRTA. The NRTA did not contain a clear intention to extinguish all treaty hunting rights, but only to extinguish commercial hunting rights on Crown lands. However, the hunting rights granted by the Treaty were not unlimited. They were subject to regulation and it would be necessary to determine if the regulations enacted in the Alberta Wildlife Act were a justifiable infringement on s. 35(1) . Ultimately, she found that it was unnecessary to undertake an analysis of the justification in light of the fact that she had concluded that the treaty did not confer a right to hunt on private lands. She dismissed the appeals.
Relevant Treaty and Statutory Provisions
31 The relevant part of Treaty No. 8, made 21 June 1899, provides:
And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.
32 The Constitution Act, 1930, s. 1 provides:
1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the Constitution Act, 1867 , or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid.
33 The Natural Resources Transfer Agreement, 1930 is the Schedule referred to in s. 1. Paragraph 12 of the NRTA provides:
12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.
34 Section 35(1) of the Constitution Act, 1982 provides:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35 Sections 26(1) and 27(1) of the Wildlife Act provide:
26(1) A person shall not hunt wildlife unless he holds a licence authorizing him, or is authorized by or under a licence, to hunt wildlife of that kind.
27(1) A person shall not hunt wildlife outside an open season or if there is no open season for that wildlife.
Constitutional Question
36 The constitutional question stated by this Court on May 2, 1994 is as follows:
If Treaty 8 confirmed to the Indians of the Treaty 8 Territory the right to hunt throughout the tract surrendered, does the right continue to exist or was it extinguished and replaced by para. 12 of the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, 20‑21 George V, c. 26 (U.K.)), and if the right continues to exist, could that right be exercised on the lands in question and, if so, was the right impermissibly infringed upon by s. 26(1) or s. 27(1) of the Wildlife Act, S.A. 1984, c. W‑9.1, given Treaty 8 and s. 35(1) of the Constitution Act, 1982 ?
Analysis
37 On this appeal, the extent of the existing right to hunt for food