Daniels v. White

Daniels v. White
Collection
Supreme Court Judgments
Date
1968-04-29
Report
[1968] SCR 517
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
Manitoba
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Daniels v. White, [1968] S.C.R. 517
Date: 1968-04-29
Paul Daniels Appellant;
and
Ronald Addison White and Her Majesty The Queen Respondents.
1967: November 20; 1968: April 29.
Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Criminal law—Indians—Hunting rights of Manitoba Indians—Possession of game birds prohibited season contrary to statute—Whether exempt from compliance with statute by virtue of agreement between Canada and Manitoba—Indian Act, R.S.C. 1952, c. 149—Migratory Birds Convention Act, R.S.C. 1952, c. 179, s. 12(1)—Manitoba Natural Resources Act , 1930 (Can.), c. 29; 1930 (Man.), c. 30—B.N.A. Act, 1930, c. 26.
The appellant is an Indian from the Province of Manitoba and was convicted of having game birds in his possession, contrary to s. 12(1) of the Migratory Birds Convention Act, R.S.C. 1952, c. 179. On appeal by way of trial de novo, the conviction was quashed. On a further appeal to the Court of Appeal, the conviction was restored by a majority judgment. The appellant was granted leave to appeal to this Court. The issue in the appeal is whether para. 13 of an agreement made on December 14, 1929, between the government of Canada and the government of Manitoba (approved by statutes of the United Kingdom Parliament, the Parliament of Canada and the Legislature of Manitoba) exempts the appellant from compliance with the Migratory Birds Convention Act and the regulations made thereunder. Paragraph 13 provides that… “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 might have a right of access”.
Held (Cartwright C.J. and Ritchie, Hall and Spence JJ. dissenting): The appeal should be dismissed.
Per Fauteux, Abbott, Martland, Judson and Pigeon JJ.: Paragraph 13 of the agreement did not have the effect of exempting the appellant from compliance with the Migratory Birds Convention Act and the regulations made thereunder. The whole tenor of the agreement is that of a conveyance of land imposing specified obligations and restrictions on the transferee, not on the transferor. This applied particularly to para. 13 which made provincial game laws applicable to Indians in the province subject to the proviso contained therein. That only provincial game laws were in the contemplation of the parties, and not federal enactments, is underscored by the words “which the Province hereby assures to them” in para. 13. Care was taken in framing para. 13 that the legislature of the province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands. The agreement and the legislation confirm- ing it did no more than impose specified obligations and restrictions upon the transferee province. They did not repeal by implication a statute of Canada giving effect to an international convention.
Per Pigeon J.: This was a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. The words in para. 13 of the agreement “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” contemplate the laws of Manitoba. It is perfectly possible without doing violence to the language used to construe para. 13 as applicable solely to provincial laws and thus to avoid any conflict. Furthermore, it would not only be foreign to the declared object of the agreement but even inconsistent with it, to provide for an implied modification of the Migratory Birds Convention Act.
Per Cartwright C.J., dissenting: The words “which the Province hereby assures to them” do not cut down the right of hunting which in plain and unequivocal words para. 13 say the Indians shall have. The rights given to the Indians by the words of para. 13 have been, since 1930, enshrined in our Constitution and given the force of law “notwithstanding anything in…any Act of the Parliament of Canada”. There is no rule which permits to add after the words “Canada” the words “except the Migratory Birds Convention Act”.
Per Ritchie, Hall and Spence JJ., dissenting: The words in para. 13 of the agreement “which the Province hereby assures to them” do not have the effect of limiting the rights thereby accorded to the Indians, to provincial rights, but rather to constitute additional assurance of the general rights described in that paragraph.
In view of the words of s. 1 of the B.N.A. Act, 1930, giving the agreement the force of law “notwithstanding anything in…any Act of the Parliament of Canada”, the agreement takes precedence over the Migratory Birds Convention Act and the regulations made thereunder, with the result that these enactments do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in para. 13.
Droit criminel—Indiens—Droit de chasse des Indiens du Manitoba—Possession de gibier en temps prohibé contrairement au statut—Convention entre le Canada et le Manitoba dispense‑t-elle d’obéir au statut—Loi sur les Indiens, S.R.C. 1952, c. 149—Loi sur la Convention concernant les oiseaux migrateurs, S.R.C. 1952, c. 179, art. 12(1)—Loi des ressources naturelles du Manitoba , 1930 (Can.), c. 29; 1930 (Man.), c. 30—Acte de l’Amérique du Nord britannique, 1930, c. 26.
L’appelant, un Indien du Manitoba, a été déclaré coupable d’avoir eu en sa possession du gibier contrairement à l’art. 12(1) de la Loi sur la Convention concernant les oiseaux migrateurs, S.R.C. 1952, c. 179. Sur appel par voie de procès de novo, la déclaration de culpabilité a été annulée. Sur appel subséquent à la Cour d’appel, la déclaration de culpabilité a été rétablie par un jugement majoritaire. L’appelant a obtenu la permission d’appeler à cette Cour. La question à débattre est de savoir si le para. 13 de la convention faite le 14 décembre 1929 entre le gouvernement du Canada et le gouvernement du Manitoba (ratifiée par les statuts du parlement du Royaume-Uni, du parlement du Canada et de la législature du Manitoba) dispense l’appelant d’obéir à la Loi sur la Convention concernant les oiseaux migrateurs et les règlements établis en vertu d’icelle. Le para. 13 stipule que…«le Canada consent à ce que les lois relatives au gibier et qui sont en vigueur de temps à autre dans la province, s’appliquent aux Indiens dans les limites de la province; toutefois, lesdits Indiens auront le droit que la province leur assure par les présentes de chasser et de prendre le gibier au piège et de pêcher le poisson, pour se nourrir en toute saison de l’année sur toutes les terres inoccupées de la Couronne et sur toutes les autres terres auxquelles lesdits Indiens peuvent avoir un droit d’accès».
Arrêt: L’appel doit être rejeté, le Juge en Chef Cartwright et les Juges Ritchie, Hall et Spence étant dissidents.
Les Juges Fauteux, Abbott, Martland, Judson et Pigeon: Le paragraphe 13 de la convention ne dispense pas l’appelant d’obéir à la Loi sur la Convention concernant les oiseaux migrateurs et aux règlements établis en vertu d’icelle. La convention est un acte de transmission de propriété imposant des obligations et des restrictions spécifiques au cessionnaire, mais non pas au cédant. Ceci s’applique particulièrement au para. 13 qui rend les lois de chasse provinciales applicables aux Indiens dans la province sous réserve de la condition y prévue. Les mots «que la province leur assure par les présentes» dans le para. 13 montrent bien que les parties n’avaient en vue que les lois de chasse provinciales et non pas les lois fédérales. On a pris soin de s’assurer que la province ne pourrait pas unilatéralement porter atteinte au droit des Indiens de chasser pour se nourrir sur les terres inoccupées de la Couronne. La convention ainsi que la législation la ratifiant n’ont pas d’autre effet que d’imposer des obligations et des restrictions spécifiques à la province cessionnaire. Elles n’ont pas eu pour effet d’abroger implicitement un statut du Canada qui donnait effet à une convention internationale.
Le Juge Pigeon: Il s’agit d’un cas où l’on doit appliquer la règle d’interprétation disant que le parlement n’est pas censé légiférer à l’encontre d’un traité ou d’une manière incompatible avec les convenances et les règles établies du droit international. Dans le para. 13 de la convention, les mots «le Canada consent à ce que les lois relatives au gibier et qui sont en vigueur de temps à autre dans la province, s’appliquent aux Indiens dans les limites de la province» visent les lois du Manitoba. Sans faire violence aux mots dont on s’est servi, il est parfaitement possible d’interpréter ce para. 13 comme s’appliquant uniquement aux lois provinciales et ainsi d’éviter tout conflit. Interpréter ce paragraphe comme une modification implicite de la Loi sur la Convention concernant les oiseaux migrateurs serait non seulement s’éloigner de l’objet de la convention mais aller à l’encontre.
Le Juge en Chef Cartwright, dissident: Les mots «que la province leur assure par les présentes» n’enlèvent rien au droit de chasser qu’en des termes clairs et non équivoques le para. 13 dit que les Indiens possèdent. Les droits donnés aux Indiens par le para. 13 ont été, depuis 1930, consacrés par notre constitution et sont devenus la loi «nonobstant tout ce qui est contenu…dans toute loi du Parle- ment du Canada». Il n’y a aucune règle qui permette d’ajouter après les mots «Canada» les mots «excepté la Loi sur la Convention concernant les oiseaux migrateurs».
Les Juges Ritchie, Hall et Spence, dissidents: Dans le para. 13 de la convention, les mots «que la province leur assure par les présentes» n’ont pas l’effet de limiter aux seuls droits provinciaux les droits qui y sont accordés aux Indiens, mais au contraire constituent une garantie additionnelle des droits généraux décrits dans ce paragraphe.
Vu les termes de l’art. 1 de l’Acte de l’Amérique du Nord britannique, 1930, donnant à la convention force de loi «nonobstant tout ce qui est contenu…dans toute loi du Parlement du Canada», la convention a priorité sur la Loi sur la Convention concernant les oiseaux migrateurs et les règlements établis en vertu d’icelle. Il en résulte que cette législation ne s’applique pas aux Indiens du Manitoba lorsqu’ils chassent pour se nourrir les oiseaux migrateurs dans les endroits spécifiés au para. 13.
APPEL d’un jugement de la Cour d’appel du Manitoba1, rétablissant une déclaration de culpabilité. Appel rejeté, le Juge en Chef Cartwright et les Juges Ritchie, Hall et Spence étant dissidents.
APPEAL from a judgment of the Court of Appeal of Manitoba[1], restoring the appellant’s conviction. Appeal dismissed, Cartwright C.J. and Ritchie, Hall and Spence JJ. dissenting.
William R. Martin, for the appellant.
D.H. Christie, Q.C., for the respondents.
THE CHIEF JUSTICE (dissenting):—The question to be determined on this appeal, the relevant facts (all of which are undisputed) and the historical background in the light of which the controversy must be considered are set out in the reasons of other members of the Court.
That the problem is not free from difficulty is attested by the differences of opinion in the Courts below and in this Court.
Since the decisions of this Court in Sikyea v. The Queen[2] and The Queen v. George[3], it must be accepted that, if it were not for the provisions contained in section 13 of the agreement between the Government of Canada and the Government of Manitoba which was approved and given the force of law by Statutes of the Imperial Parliament, the Parliament of Canada and the Legislature of Manitoba, the conviction of the appellant would have to be upheld.
Nothing would be gained by my repeating the reasons which I gave in George’s case for thinking that both it and Sikyea’s case should have been decided differently. I accept those decisions.
The first question before us is as to the meaning of the words used in section 13 of the agreement and particularly the following:
…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 might have a right of access.
I share the view of my brothers Ritchie and Hall that the words “which the Province hereby assures to them” do not cut down “the right of hunting, trapping and fishing game and fish for food at all seasons of the year” which in plain and unequivocal words the clause says that the Indians shall have.
In Sikyea’s case and George’s case the Court decided that this right, secured to the Indians by treaty, could be, and as a matter of construction had been abrogated by the terms of the Migratory Birds Convention Act and the Regulations made thereunder. In George’s case the Court held that while s. 87 of the Indian Act preserved the treaty rights of the Indians against encroachment by laws within the competency of the Provincial Legislature it had no such effect in regard to an Act of Parliament.
The situation in the case at bar is different. The right of hunting, trapping and fishing given to the Indians by the words of section 13 quoted above has been, since 1930, enshrined in an amendment to our Constitution and given:
…the force of law notwithstanding anything in the British North America 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.
I find it impossible to uphold the conviction of the appellant unless we are able to say that, by the application of some rule of construction, there should be inserted in s. 1 of the British North America Act, 1930, immediately after the words “Parliament of Canada” the words “except the Migratory Birds Convention Act”. I know of no rule which permits us to take such a course.
I would dispose of the appeal as proposed by my brother Hall.
The Judgment of Fauteux, Abbott, Martland and Judson JJ. was delivered by
JUDSON J.:—The appellant is an Indian within the meaning of para. (g) of subs. (1) of s. 2 of the Indian Act, R.S.C. 1952, c. 149. He was convicted on December 7, 1964, of having in his possession
Migratory Game Birds, during a time when the capturing, killing, or taking of such birds, is prohibited, contrary to the Regulations under the Migratory Birds Convention Act, thereby committing an offence under Section 12(1) of the said Migratory Birds Convention Act.
On an appeal by way of trial de novo his conviction was quashed. On a further appeal to the Court of Appeal of Manitoba[4], his conviction was restored and the sentence affirmed by a majority judgment. He appeals to this Court with leave.
The issue in this appeal is whether by operation of para. 13 of the agreement made on December 14, 1929, between the Government of the Dominion of Canada and the Government of the Province of Manitoba (hereinafter referred to as “the agreement”) the appellant was exempted from compliance with the Migratory Birds Convention Act and Regulations made thereunder bearing in mind that at the relevant time and place he was an Indian who had hunted game for food on land to which he had a right of access.
There can be no doubt that apart from para. 13 of the agreement above quoted the appellant was, in the circumstances of this case, subject to the Migratory Birds Convention Act and Regulations. See: Sikyea v. The Queen[5]; The Queen v. George[6]; Sigeareak v. The Queen[7]. Paragraph 13 of the agreement provides:
13. 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.
Paragraph 13 is part of an agreement dated December 14, 1929, between the Government of Canada and the Government of the Province of Manitoba for the transfer to the province from the Dominion of all ungranted Crown lands. This agreement was approved by the Manitoba Legislature and by Parliament. (Statutes of Manitoba, 1930, c. 30; Statutes of Canada, 1930, c. 29.) It was subsequently affirmed by the British North America Act, 1930, 20-21 Geo. V., c. 26. Three similar agreements involving Alberta, Saskatchewan and British Columbia were subsequently affirmed.
Section 1 of the British North America Act 1930 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 British North America 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.
Prior to the coming into force of the agreement, title to all ungranted Crown lands in the Province of Manitoba was vested in the Dominion. Briefly, the relevant history is that by the Rupert’s Land Act, 1868, 31-32 Vict., c. 105 (R.S.C. 1952, vol. VI, p. 99) provision was made for the surrender of Rupert’s Land by the Hudson’s Bay Company and for the acceptance thereof by Her Majesty. Section 3 of the said Act provided:
that such Surrender shall not be accepted by Her Majesty until the Terms and Conditions upon which Rupert’s Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an address to Her Majesty from both the Houses of the Parliament of Canada in pursuance of the 146th Section of the British North America Act 1867.
By Imperial Order in Council of June 23, 1870, Rupert’s Land was admitted into and became part of the Dominion of Canada effective July 15, 1870—R.S.C. 1952, vol. VI, p. 113. By operation of the Manitoba Act 1870, 33 Vict., c. 3 (Canada), subsequently affirmed with retrospective effect by the Parliament of the United Kingdom (B.N.A. Act, 1871, 34-35 Vict., c. 28, s. 5, R.S.C. 1952, vol. VI, p. 146), the Province of Manitoba was carved out of Rupert’s Land and came into being on the same date Rupert’s Land entered Confederation. By s. 30 of the Manitoba Act, 1870, all ungranted or waste lands in the Province vested in the Crown to be administered by the Government of Canada for the purposes of the Dominion.
The Crown in right of the Dominion being the owner of all Crown lands, including the mines and minerals therein, in the Province of Manitoba that Province, together with Alberta and Saskatchewan, was in a less favourable condition than the other Provinces who by operation of s. 109 of the British North America Act, 1867, retained Crown lands upon entering Confederation. The purpose of the agreement was to transfer these lands to Manitoba in order that it might be in the same position as the other provinces under s. 109 of the British North America Act, 1867. This is apparent from the preamble to and paragraph 1 of the agreement and from the following cases where the matter was under consideration:
Saskatchewan Natural Resources Reference[8]:
Reference concerning Refunds of Dues paid to the Dominion of Canada in respect of Timber Permits in the Western Provinces[9];
Anthony v. Attorney General of Alberta[10];
Attorney General of Alberta v. Huggard Assets Limited[11]:
Western Canadian Collieries Limited v. Attorney General of Alberta[12].
The whole tenor of the agreement is that of a conveyance of land imposing specified obligations and restrictions on the transferee, not on the transferor. This applies, in particular, to paragraph 13, which makes provincial game laws applicable to Indians in the province subject to the proviso contained therein. That only provincial game laws were in the contemplation of the parties, and not federal enactments, is underscored by the words “which the Province hereby assures to them” in para. 13. As indicated by para. 11 of the agreement and para. 10 of the Alberta and Saskatchewan agreements, Canada, in negotiating these agreements, was mindful of the fact it had treaty obligations with Indians on the Prairies. These treaties, among other things, dealt with hunting by Indians on unoccupied lands. For example, treaties 5 and 6, which cover portions of Manitoba, Saskatchewan and Alberta, provide:
Her Majesty further agrees with Her said Indians, that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes, by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.
Treaty No. 8, which covers portions of Alberta and Saskatchewan, 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.
Treaty No. 7, which covers a portion of Alberta, is to the same effect.
It being the expectation of the parties that the agreement would be given the force of law by the Parliament of the United Kingdom (Paragraph 25) care was taken in framing para. 13 that the Legislature of the province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands. Under the agreement this could only be done by concurrent Statutes of the Parliament of Canada and the Legislature of the province, in accordance with para. 24 thereof.
The majority opinion in the Manitoba Court of Appeal held that the agreement, affirmed as it was by legislation of all interested governments, could not be reconciled with the Migratory Birds Convention Act and that the latter Act must prevail. The Migratory Birds Convention Act, being of general application throughout Canada, ought not to be construed as circumscribed by the restricted legislation that is to be found in the Manitoba Natural Resources Act . It was desirable that a matter within the legislative responsibility of Parliament and governed by international treaty be uniform in application throughout the country unless specifically provided otherwise.
The dissenting opinion would have held that para. 13 of the agreement should prevail over the Migratory Birds Convention Act notwithstanding that such a result gives the Act a different effect in Manitoba from that which it has in other parts of Canada.
The Migratory Birds Convention Act was enacted in 1917. It confirms a treaty made between Canada and the United States. The regulations under the Act go back to 1918. (P.C. 871, April 23, 1918). In my opinion, the agreement and the legislation of 1930 confirming it did no more than impose specified obligations and restrictions upon the transferee province. They did not repeal by implication a statute of Canada giving effect to an international convention.
On this subject I adopt the law as stated in 36 Hals., 3rd ed., p. 465:
Repeal by implication is not favoured by the courts for it is to be presumed that Parliament would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so. If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible is that Parliament, unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have effect, and an intention so evinced is as effective as one expressed in terms. The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done; and their reconciliation must in particular be attempted if the later statute provides for its construction as one with the earlier, thereby indicating that Parliament regarded them as compatible, or if the repeals expressly effected by the later statute are so detailed that failure to include the earlier provision amongst them must be regarded as such an indication.
I would dismiss the appeal. RITCHIE J. (dissenting):—I have had the benefit of reading the reasons for judgment prepared by other members of the Court in which the circumstances giving rise to this appeal are fully recited.
I agree with Mr. Justice Hall that the words “which the Province hereby assures to them” as they occur in paragraph 13 of the agreement which is a schedule to the Manitoba Natural Resources Act , Statutes of Canada 1930, c. 29, do not have the effect of limiting the rights thereby accorded to Indians, to provincial rights, but rather that they constitute additional assurance of the general rights described in the said paragraph.
Like my brother Hall, I can only read the provisions of s. 1 of the British North America Act, 1930, as giving the agreement “the force of law notwithstanding anything in …any Act of the Parliament of Canada…” and I am therefore of opinion that the agreement takes precedence over the Migratory Birds Convention Act, R.S.C. 1952, c. 179 and the regulations made thereunder, with the result that these enactments do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in section 13.
I would accordingly dispose of this matter in the manner proposed by my brother Hall.
The judgment of Hall and Spence JJ. was delivered by
HALL J. (dissenting):—The facts in this appeal are not in dispute. The appellant, Paul Daniels, who is a Treaty Indian of the Chemahawin Indian Reserve in the Province of Manitoba, was convicted by Police Magistrate Neil McPhee, at The Pas, Manitoba, for an offence contrary to subs. (1) of s. 12 of the Migratory Birds Convention Act, R.S.C. 1952, c. 179. The charge on which he was convicted was that he, the said
Paul Daniels, of Chemahawin Indian Reserve, Manitoba, on the 3rd day of July, A.D. 1964, at Chemahawin Indian Reserve, in the Province of Manitoba, did unlawfully and without lawful excuse have in his possession Migratory Game Birds, during a time when the capturing, killing or taking of such birds is prohibited, contrary to the regulations under the Migratory Birds Convention Act, thereby committing an offence under Section 12(1) of the said Migratory Birds Convention Act.
Against the conviction the accused appealed to the County Court by way of trial de novo. His Honour J.W. Thompson, sitting as a judge of the County Court of Manitoba, allowed the appeal and acquitted the accused. The Crown then took an appeal to the Court of Appeal for Manitoba[13] which Court, Freedman J.A. dissenting, allowed the appeal and restored the conviction. The appellant then applied for and was given leave to appeal to this Court.
On July 3, 1964, the appellant had in his possession two wild ducks, one described as a redhead and the other a mallard or greenhead. At a point along the Saskatchewan River, within the Reserve, he had, on his own admission, shot and killed the birds for food and they were being cooked over a campfire when two constables of the R.C.M.P. entered the area. Section 6 of the Migratory Birds Convention Act provides:
No person, without lawful excuse, the proof whereof shall he on such person, shall buy, sell or have in his possession any migratory game bird, migratory insectivorous bird or migratory nongame bird, or the nest or egg of any such bird or any part of any such bird, nest or egg, during the time when the capturing, killing or taking of such bird, nest or egg is prohibited by this Act.
Under s. 3(b)(i) “Migratory Game Birds” includes wild ducks. Section 12(1) of the Act provides that every person who violates any provision of this Act or any regulation, is, for each offence, liable upon summary conviction to a fine of not more than three hundred dollars and not less than ten dollars, or to imprisonment for a term not exceeding six months or to both fine and imprisonment.
Section 5(1) of the Regulations provides:
Unless otherwise permitted under these Regulations to do so, no person shall
(a) in any area described in Schedule A, kill, hunt, capture, injure, or take or molest a migratory bird at any time except during an open season specified for that bird and that area in Schedule A…
Part VII of Schedule A to the Regulations defines the open season for ducks in Manitoba. In the area north of Parallel 53 which includes the Chemahawin Indian Reserve, the open season is from noon September 11 to November 28, inclusive of the closing date. It is further provided in s. 5(2) of the Regulations:
Indians and Eskimos may take auks, auklets, guillemots, murres, puffins and scoters and their eggs at any time for human food or clothing, but they shall not sell or trade or offer to sell or trade birds or eggs so, taken and they shall not take such birds or eggs within a bird sanctuary.
Unless the appellant’s status as an Indian in Manitoba permits him to hunt and possess migratory game birds at all seasons of the year, he was properly convicted: Sikyea v. The Queen[14].
The appellant claimed immunity from the provisions of the Migratory Birds Convention Act by virtue of the Manitoba Natural Resources Act , Statutes of Canada 1930, c. 29, which he contends exempts him from the operations of the Migratory Birds Convention Act because he is an Indian residing in the Province of Manitoba.
In the year 1929, some twelve years after the enactment of the Migratory Birds Convention Act, the Government of Canada and the Government of Manitoba reached an agreement respecting the transfer to Manitoba of the unalienated natural resources within the Province. The agreement was approved by the Parliament of Canada in the Manitoba Natural Resources Act , supra, and by the Legislature of Manitoba by the Manitoba Natural Resources Act, R.S.M. 1954, c. 180. The schedule to both statutes contains the terms of the agreement, in which s. 13 reads as follows:
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 might have a right of access.
This section of the agreement was dealt with by this Court in Prince and Myron v. The Queen[15], which held that Indians in Manitoba hunting for food on all unoccupied Crown lands and on any other lands to which they may have rights of access were not subject to any of the limitations which the Game and Fisheries Act of Manitoba, R.S.M. 1954, c. 94, imposes upon the non-Indian residents of Manitoba. Section 72(1) of The Game and Fisheries Act, R.S.M. 1954, c. 94, reads as follows:
72(1) Notwithstanding this Act, and in so far only as is necessary to implement The Manitoba Natural Resources Act , any Indian may hunt and take game for food for his own use at all seasons of the year on all unoccupied Crown lands and on any other lands to which the Indian may have the right of access.
The question which falls to be determined in this appeal is whether the terms of the agreement between the Government of Canada and the Government of Manitoba as ratified by Parliament and by the Legislature of Manitoba and confirmed at Westminster in the British North America Act 1930 take precedence over the provisions of the Migratory Birds Convention Act and the Regulations made thereunder. If full effect is to be given to s. 13 of the agreement in question, it must be held that the provisions of the Migratory Birds Convention Act and the Regulations made thereunder do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in the section. On the other hand, if the provisions of the Migratory Birds Convention Act take precedence, the right of Indians in Manitoba to hunt game for food at all seasons of the year in accordance with said s. 13 is wiped out. Accordingly, the decision must be made as to which legislation is paramount.
Freedman J.A., in his dissenting judgment in the Court of Appeal, dealt with the problem as follows:
At first blush it might be thought that the reference to Indians and their hunting rights both in the Convention and in the regulations of the Migratory Birds Convention Act—under which they are permitted to hunt scoters, auks, auklets, etc.—settles the matter. Obviously such rights are far smaller than the unrestricted right to hunt all game for food, which is provided by Sec. 13 of “The Manitoba Natural Resources Act ”. The reference to Indians in the Convention and in the regulations is in general terms, no exception being made with regard to Indians of Manitoba or elsewhere. It might accordingly be plausibly argued that the Indians in Manitoba have only such rights with respect to migratory birds as are conferred by the Migratory Birds Convention Act. But this is not necessarily so. We must remember that when the Convention of 1917 was entered into, the agreement relating to the transfer of Manitoba’s natural resources was not yet in existence nor even in contemplation. Hence no exception with regard to Manitoba Indians could have been expected in the Convention. As for the regulations of 1958, it is true that they were enacted subsequent to The Manitoba Natural Resources Act and that they contain no exception in favour of Indians of Manitoba. But the regulations could not enlarge or go beyond the provisions of the statute pursuant to which they were enacted. Rather they would conform to the terms of that statute; so no such exception would be expected in the regulations either.
The parallel argument on the other side appears to me to be far more cogent. The terms of Sec. 13 contained in The Manitoba Natural Resources Act are comprehensive and permit the hunting by Indians of game for food at all seasons of the year. No exception is made with respect to migratory birds, even though the Migratory Birds Convention Act had been on the statute books since 1917. Instead of making the provisions of Sec. 13 subject to the terms of the Migratory Birds Convention Act, the legislators did quite the opposite. They enshrined the agreement within the Canadian constitutional framework by having it confirmed at Westminster in the British North America Act, 1930, and declared it should have the force of law “notwithstanding anything in… any Act of the Parliament of Canada”. I believe it should be given that force and not be read as subject to the provisions of the Migratory Birds Convention Act.
I am conscious of the fact that this conclusion will give to the Migratory Birds Convention Act a different effect in Manitoba (and incidentally in Saskatchewan and Alberta, which have similar provisions to Sec. 13 ) from that which it has in other parts of Canada. The decision of the Supreme Court of Canada in Reg. vs. Sikyea, (1964) S.C.R. 642, upheld the application of the Migratory Birds Convention Act to an Indian of the Northwest Territories notwithstanding hunting rights contained in treaties. The decision of that Court in The Queen vs. George, (1966) 55 D.L.R. (2d) 386, came to the same conclusion as regards an Indian in Ontario. In neither case, of course, did Sec. 13 of The Manitoba Natural Resources Act apply. If the application of Sec. 13 gives to the Migratory Birds Convention Act a disparate result in different parts of Canada, that is simply an unfortunate but inevitable consequence of the conflicting legislation on the subject.
I am in full agreement with Freedman J.A. and the fact that the conclusion arrived at by him gives the Indians of Manitoba, Saskatchewan and Alberta a latitude while hunting for food on unoccupied crown lands and on other lands to which Indians might have a right of access greater than that possessed by other Indians in Canada is not of itself a reason for putting a strained interpretation on said s. 13 or for failing to give effect to the very plain language in the British North America Act 1930. The lamentable history of Canada’s dealings with Indians in disregard of treaties made with them as spelt out in the judgment of Johnson J.A. in Regina v. Sikyea[16] and by McGillivray J.A. in Rex v. Wesley[17] ought in justice to allow the Indians to get the benefit of an unambiguous law which for once appears to give them what the treaties and the Commissioners who were sent to negotiate those treaties promised.
I said at p. 646 of my reasons in Sikyea which were concurred in by the six other members of this Court who heard the appeal:
On the substantive question involved, I agree with the reasons for judgment and with the conclusions of Johnson J.A. in the Court of Appeal, (1964) 2 C.C.C. 325, 43 C.R. 83, 46 W.W.R. 65. He has dealt with the important issues fully and correctly in their historical and legal settings, and there is nothing which I can usefully add to what he has written.
It should be noted that in Sikyea the British North America Act 1930 had no application because the offence there being dealt with had occurred in the Northwest Territories, an area wholly within the legislative jurisdiction of the Parliament of Canada. Parliament has the power to breach the Indian treaties if it so wills: Regina v. Sikyea, supra. That point is dealt with by Johnson J.A. at p. 330 as follows:
Discussing the nature of the rights which the Indians obtained under the treaties, Lord Watson, speaking for the Judicial Committee in A.-G. Can. v. A.-G. Ont., A.-G. Que. v. A.-G. Ont., (1897) A.C. 199 at p. 213, said:
“Their Lordships have had no difficulty in coming to the conclusion that, under the treaties, the Indians obtained no right to their annuities, whether original or augmented beyond a promise and agreement, which was nothing more than a personal obligation by its governor, as representing the old province, that the latter should pay the annuities as and when th