R. v. Horseman

R. v. Horseman
Collection
Supreme Court Judgments
Date
1990-05-03
Report
[1990] 1 SCR 901
Case number
20582
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Alberta
Subjects
Aboriginal law
Notes
SCC Case Information: 20582
Decision Content
R. v. Horseman, [1990] 1 S.C.R. 901
Bert Horseman Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Manitoba and
the Attorney General for Saskatchewan Interveners
indexed as: r. v. horseman
File No.: 20582.
1989: November 27; 1990: May 3.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.
on appeal from the court of appeal for alberta
Indians ‑‑ Hunting rights ‑‑ Treaty Indian killing bear in self‑defence and later selling hide ‑‑ Alberta Wildlife Act prohibiting trafficking in wildlife without a licence ‑‑ Whether prohibition applies to Treaty 8 Indians ‑‑ Whether Treaty 8 hunting rights limited by 1930 Natural Resources Transfer Agreement ‑‑ Wildlife Act, R.S.A. 1980, c. W‑9, ss. 18, 42 ‑‑ Treaty No. 8 ‑‑ Natural Resources Transfer Agreement, 1930, para. 12.
Appellant, a Treaty 8 Indian, killed a grizzly bear in self‑defence while hunting moose for food. He did not have at the time a licence under the Alberta Wildlife Act to hunt grizzly bears or sell their hides. A year later, in need of money to support his family, he purchased a grizzly bear hunting licence and sold the grizzly hide. This was an isolated act and not part of any planned commercial activity. Appellant was charged with unlawfully trafficking in wildlife, contrary to s. 42 of the Wildlife Act. At trial, he argued that the Act did not apply to him and that he was within his Treaty 8 rights when he sold the bear hide. This treaty secured the Indians' right "to pursue their usual vocations of hunting, trapping and fishing . . . subject to such regulations as [might] from time to time be made by the Government of the country". The trial judge found that the appellant's Treaty 8 hunting rights included the right to barter and acquitted him. The summary conviction appeal court set aside the acquittal and convicted the appellant. The court held that the Alberta Natural Resources Transfer Agreement of 1930 had limited the Treaty 8 hunting rights to a right to hunt only for food. The Court of Appeal upheld the decision.
Held (Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per Lamer, La Forest, Gonthier and Cory JJ.: Section 42 of the Alberta Wildlife Act is a provincial law of general application which is applicable to Indians pursuant to s. 88 of the Indian Act so long as it does not conflict with a treaty right. The hunting rights reserved to the Indians in 1899 by Treaty No. 8 included hunting for commercial purposes, but these rights were subject to governmental regulation and have been limited to the right to hunt for food only ‑‑ that is to say, for sustenance for the individual Indian or the Indian's family ‑‑ by para. 12 of the Transfer Agreement. In exchange for the reduction in the right to hunt for purposes of commerce, the Crown widened the hunting territory and the means by which the Indians could hunt for food. The federal government's power to make such a modification unilaterally is unquestioned. Here, the appellant's sale of the bear hide was part of a "multi‑stage process" which might include purchasing food for nourishment. The sale of the bear hide constituted a hunting activity that had ceased to be that of hunting "for food" but rather was an act of commerce. As a result it was no longer a right protected by Treaty No. 8, as limited by the Transfer Agreement of 1930. The application of s. 42 of the Wildlife Act to the appellant was therefore not precluded by s. 88 of the Indian Act . The fact that a grizzly bear was killed by the appellant in self‑defence or the fact that he obtained a grizzly bear hunting permit after he was in the possession of a bear hide is irrelevant to a consideration of whether there has been a breach of s. 42. The grizzly bear is in a precarious position, and trafficking in bear hides, other than pursuant to the provisions of the Wildlife Act, threatens its very existence. Section 42 is valid legislation enacted by the government with jurisdiction in the field. It reflects a bona fide concern for the preservation of a species.
Per Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. (dissenting): Indian treaties should be given a fair, large and liberal construction in favour of the Indians. They are sui generis, being the product of negotiation between very different cultures. Courts must therefore look at the broader historical context to ensure that they reach a proper understanding of the meaning that particular treaties held for their signatories at the time. In 1899, the Indians were concerned that the most important aspect of their way of life, their ability to hunt and fish, not be interfered with. The language of Treaty No. 8 embodied a solemn engagement to Indians that their means of livelihood would be respected, and this promise was the sine qua non for obtaining their agreement to enter into the treaty. In guaranteeing the Indians the right to pursue their usual vocations of hunting, trapping and fishing "subject to such regulations as may from time to time be made by the Government of the country", the Canadian government committed itself to regulate hunting in a manner that would respect the Indians' lifestyle and the way in which they had traditionally pursued their livelihood.
Paragraph 12 of the Transfer Agreement was intended to respect the guarantees enshrined in Treaty No. 8, and the modifications to the areas within which Treaty 8 Indians would thereafter be able to engage in their traditional way of life should not be viewed as an attempt to abrogate or limit the Indians' rights to hunt and fish. Given the government's solemn commitment to Treaty 8 Indians, the term hunting "for food" in para. 12 should be construed as encompassing hunting for support and subsistence, which includes hunting in order to exchange the product of the hunt for other items, as opposed to purely commercial or sport hunting. Paragraph 12 must also be construed as conferring on the province of Alberta the power to regulate sport hunting and hunting for purely commercial purposes rather than as enabling it to place serious and invidious restrictions on traditional Indian hunting practices.
The killing of the bear in this case was not an act of "hunting"; it was an act of self-defence. Moreover, the sale of the hide was an isolated transaction for the purpose of support and subsistence. The appellant's conduct, therefore, is not caught by s. 42 of the Alberta Wildlife Act, which is applicable to Treaty 8 Indians only to the extent that they are engaged in commercial or sport hunting.
Cases Cited
By Cory J.
Applied: Frank v. The Queen, [1978] 1 S.C.R. 95; R. v. Sutherland, [1980] 2 S.C.R. 451; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; referred to: Simon v. The Queen, [1985] 2 S.C.R. 387; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247; Myran v. The Queen, [1976] 2 S.C.R. 137.
By Wilson J. (dissenting)
Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. White and Bob (1964), 50 D.L.R. (2d) 613, aff'd [1965] S.C.R. vi; R. v. Smith, [1935] 3 D.L.R. 703; R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247; Frank v. The Queen, [1978] 1 S.C.R. 95; Prince and Myron v. The Queen, [1964] S.C.R. 81; R. v. Wesley, [1932] 2 W.W.R. 337; Sikyea v. The Queen, [1964] S.C.R. 642; R. v. George, [1966] S.C.R. 267; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; R. v. Sutherland, [1980] 2 S.C.R. 451.
Statutes and Regulations Cited
An Act further to amend "The Indian Act " chapter forty‑three of the Revised Statutes, S.C. 1890, c. 29, s. 10.
Constitution Act, 1867 .
Constitution Act, 1930, 20 & 21 Geo. 5, c. 26 (U.K.) [reprinted in R.S.C. 1970, App. II, No. 25], s. 1.
Indian Act , R.S.C. 1927, c. 98, s. 69 .
Indian Act, R.S.C. 1970, c. I‑6, s. 88 .
Natural Resources Transfer Agreement [confirmed by the Constitution Act, 1930], para. 12.
Treaty No. 8 (1899).
Unorganized Territories' Game Preservation Act, 1894, S.C. 1894, c. 31, ss. 2, 4 to 8, 26.
Wildlife Act, R.S.A. 1980, c. W‑9, ss. 1(s), 18, 42.
Authors Cited
Daniel, Richard. "The Spirit and Terms of Treaty Eight." In The Spirit of the Alberta Indian Treaties. Edited by Richard Price. Montréal: Institute for Research on Public Policy, 1979.
Fumoleau, René. As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870‑1939. Toronto: McClelland and Stewart, 1973.
Hickey, Lynn, Richard L. Lightning and Gordon Lee, "T.A.R.R. Interview with Elders Program". In The Spirit of the Alberta Indian Treaties. Edited by Richard Price. Montréal: Institute for Research on Public Policy, 1979.
La Forest, G. V. Natural Resources and Public Property under the Canadian Constitution. Toronto: University of Toronto Press, 1969.
Laird, David, J. Ross and J. McKenna. "Report of Commissioners for Treaty No. 8." In Treaty No. 8 Made June 21, 1899 and Adhesions, Reports, etc. Ottawa: Reprinted by Queen's Printer, 1966.
O'Chiese, Peter, et al. "Interviews with Elders." In The Spirit of the Alberta Indian Treaties. Edited by Richard Price. Montréal: Institute for Research on Public Policy, 1979.
Ray, Arthur J. Commentary on Economic History of Treaty 8 Area (Department of History, University of British Columbia, 1985) [unpublished].
APPEAL from a judgment of the Alberta Court of Appeal (1987), 53 Alta. L.R. (2d) 146, 78 A.R. 351, [1987] 5 W.W.R. 454, [1987] 4 C.N.L.R. 99, dismissing the appellant's appeal from a judgment of Stratton J. (1986), 69 A.R. 13, [1986] 2 C.N.L.R. 94, allowing the Crown's appeal from the appellant's acquittal by Wong Prov. Ct. J., [1986] 1 C.N.L.R. 79, on a charge of trafficking in wildlife. Appeal dismissed, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
Kenneth E. Staroszik, for the appellant.
Richard F. Taylor and Margaret Unsworth, for the respondent.
Donna J. Miller and Gordon E. Hannon, for the intervener the Attorney General of Manitoba.
Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
//Wilson J.//
The reasons of Dickson C.J. and Wilson and L'Heureux-Dubé JJ. were delivered by
Wilson J. (dissenting) -- I have had the advantage of reading the reasons of my colleague Justice Cory and must respectfully disagree with his conclusion that the appellant's conduct is caught by s. 42 of the Wildlife Act, R.S.A. 1980, c. W-9.
While my colleague has reviewed the facts of this appeal and the decisions of the lower courts, I believe it is important to emphasize that all parties were agreed and the trial judge so found that Mr. Horseman was legitimately engaged in hunting moose for his own use in the Treaty 8 area when he killed the bear in self-defence. Mr. Horseman did not kill the bear with a view to selling its hide although he was eventually driven to do so a year later in order to feed himself and his family. The sale of the bear hide was an isolated act and not part of any planned commercial activity. None of this is in dispute.
The narrow question before us in this appeal then is whether the isolated sale for food of a bear hide obtained by the appellant fortuitously as the result of an act of self-defence is something that the government of Alberta is entitled to penalize under the Wildlife Act. In my view, the answer to this question requires a careful examination of the terms of Treaty No. 8 and the wording of para. 12 of the Natural Resources Transfer Agreement, 1930 (Alberta) (the "Transfer Agreement").
Interpreting Indian Treaties
This Court has already established a number of important guidelines for the interpretation of Indian treaties. In Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Dickson J. (as he then was) stated at p. 36:
. . . treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians . . . . In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties "must . . . be construed, not according to the technical meaning of [their] words . . . but in the sense in which they would naturally be understood by the Indians". [Emphasis added.]
In Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 402, Dickson C.J. pointed to his observation in Nowegijick and reiterated that "Indian treaties should be given a fair, large and liberal construction in favour of the Indians".
The interpretive principles developed in Nowegijick and Simon recognize that Indian treaties are sui generis (per Dickson C.J. at p. 404 of Simon, supra). These treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and should not be expected to reflect, with total accuracy each party's understanding of their effect at the time they were entered into. This is why the courts must be especially sensitive to the broader historical context in which such treaties were negotiated. They must be prepared to look at that historical context in order to ensure that they reach a proper understanding of the meaning that particular treaties held for their signatories at the time.
But the interpretive principles set out in Nowegijick and Simon were developed not only to deal with the unique nature of Indian treaties but also to address a problem identified by Norris J.A. in R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), at p. 649 (aff'd [1965] S.C.R. vi):
In view of the argument before us, it is necessary to point out that on numerous occasions in modern days, rights under what were entered into with Indians as solemn engagements, although completed with what would now be considered informality, have been whittled away on the excuse that they do not comply with present day formal requirements and with rules of interpretation applicable to transactions between people who must be taken in the light of advanced civilization to be of equal status.
In other words, to put it simply, Indian treaties must be given the effect the signatories obviously intended them to have at the time they were entered into even if they do not comply with to-day's formal requirements. Nor should they be undermined by the application of the interpretive rules we apply to-day to contracts entered into by parties of equal bargaining power.
In my view, the interpretive principles set out in Nowegijick and Simon are fundamentally sound and have considerable significance for this appeal. Any assessment of the impact of the Transfer Agreement on the rights that Treaty 8 Indians were assured in the treaty would continue to be protected cannot ignore the fact that Treaty No. 8 embodied a "solemn engagement". Accordingly, when interpreting the Transfer Agreement between the federal and provincial governments we must keep in mind the solemn commitment made to the Treaty 8 Indians by the federal government in 1899. We should not readily assume that the federal government intended to renege on the commitment it had made. Rather we should give it an interpretation, if this is possible on the language, which will implement and be fully consistent with that commitment. It is appropriate, therefore, to begin the analysis of the issues in this appeal with a review of the nature of the "solemn engagement" embodied in Treaty No. 8.
Treaty No. 8 and Indian Hunting Rights
In his Commentary on Economic History of Treaty 8 Area (unpublished; June 13, 1985, at p. 8), Professor Ray warns of the dangers involved in trying to understand the hunting practices of Indians in the Treaty 8 area by drawing neat distinctions between hunting for domestic use and hunting for commercial purposes. He notes that Indians in the Treaty 8 area had developed a way of life that centred on wildlife resources. They hunted beaver, moose, caribou and wood buffalo with a view to consuming some portions of their catch and exchanging other portions. "For these reasons, differentiating domestic hunting from commercial hunting is unrealistic and does not enable one to fully appreciate the complex nature of the native economy following contact" (p. 9).
Others have confirmed Professor Ray's understanding of the world in which Treaty 8 Indians lived prior to 1899: see, for example, Richard Daniel's observations in "The Spirit and Terms of Treaty Eight", in The Spirit of the Alberta Indian Treaties (Richard Price, ed., Institute for Research on Public Policy, 1979), at pp. 47 to 100. In my view, it is important to bear in mind this picture of the Treaty 8 Indians' way of life prior to 1899 when considering the context in which they consented to Treaty No. 8.
In one of the most detailed studies of the history of the negotiations leading up to Treaty No. 8, As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939 (1973), R. Fumoleau explains why the Canadian government sought an agreement with the Treaty 8 Indians. The Klondyke gold rush gave rise to serious problems throughout 1897 and 1898, with miners travelling through territory occupied by the Indians and paying little respect to their traditional way of life. Inevitably conflict broke out as the Indians retaliated. The government of Canada quickly realized that it was necessary to reach an understanding with the Indians about future relations. Commissioners Laird, Ross and McKenna were therefore sent out to negotiate a treaty with the Indians.
Mr. Daniel's study of these negotiations reveals that the Indians were especially concerned that the most important aspect of their way of life, their ability to hunt and fish, not be interfered with. He points out that the Commissioners repeatedly sought to assure the Indians that they would continue to be free to pursue these activities as they always had. In the course of treaty negotiations at Lesser Slave Lake in June 1899 (negotiations that set the pattern for subsequent agreements with other Indian groups near Fort St. John, Fort Chipewyan, Fond du Lac, Fort Resolution and Wabasca), Commissioner Laird told the assembled Indians that "Indians have been told that if they make a treaty they will not be allowed to hunt and fish as they do now. This is not true. Indians who take treaty will be just as free to hunt and fish all over as they now are." (See: Daniel, op. cit., at p. 76). Similarly, Mr. Fumoleau has observed that "[o]nly when the Treaty Commissioners promised them that they would be free to hunt and trap and fish for a living, and that their rights would be protected against the abuses of white hunters and trappers, did the Indians at each trading post of the Treaty 8 area consent to sign the treaty" (Fumoleau, op. cit., at p. 65).
The official report of the Commissioners who negotiated Treaty No. 8 (presented to the Minister of the Interior on September 22, 1899) confirms both that hunting and fishing rights were of particular concern to the Indians and that the Commissioners were at pains to make clear that the government of Canada did not wish to interfere with their traditional way of life. The Commissioners reported (at p. 6):
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be free to hunt and fish after the treaty as they would be if they never entered into it. [Emphasis added.]
Interviews with Indian elders of the Lesser Slave Lake area confirm the archival evidence with respect to the critical role played by the promise with respect to hunting and fishing rights. James Cornwall, who was present at the treaty negotiations at Lesser Slave Lake, signed an affidavit in 1937 (see Fumoleau, op. cit., at pp. 74-75) in which he stated:
Much stress was laid on one point by the Indians, as follows: They would not sign under any circumstances, unless their right to hunt, trap and fish was guaranteed and it must be understood that these rights they would never surrender.
More recent interviews with William Okeymaw of the Sucker Creek Reserve and Felix Gobot of Fort Chipewyan confirm that the treaty was to "be in effect as long as the sun shines and the rivers flow" (see: p. 151 of Peter O'Chiese et al., "Interviews with Elders", in The Spirit of the Alberta Indian Treaties, op. cit., at pp. 113-60). Lynn Hickey, Richard L. Lightning and Gordon Lee, who have conducted numerous interviews with elders in the Treaty 8 area, summarize the result of their findings as follows, in "T.A.R.R. Interview with Elders Program", in The Spirit of the Alberta Indian Treaties, pp. 103-12 (at p. 106):
It is agreed that the treaty involved surrendering land, though a few people express this as an agreement to share land or surrender the surface only. Land is the only thing that was given up, however. The main discussion of the treaty by most elders concerns hunting, fishing, and trapping and how rights to pursue their traditional livelihood were not given up and were even strongly guaranteed in the treaty to last forever. Giving up the land would not interfere with the Indian's pursuit of his livelihood, and the Indians only signed the treaty on this condition. [Emphasis added.]
While one must obviously be sensitive to the fact that contemporary oral evidence of the meaning of provisions of Treaty No. 8 will not necessarily capture the understanding of the treaty that the Indians had in 1899, in my view such evidence is relevant where it confirms the archival evidence with respect to the meaning of the treaty. Indeed, it seems to me to be of particular significance that the Treaty 8 Commissioners, historians who have studied Treaty No. 8, and Treaty 8 Indians of several different generations unanimously affirm that the government of Canada's promise that hunting, fishing and trapping rights would be protected forever was the sine qua non for obtaining the Indians' agreement to enter into Treaty No. 8. Hunting, fishing and trapping lay at the centre of their way of life. Provided that the source of their livelihood was protected, the Indians were prepared to allow the government of Canada to "have title" to the land in the Treaty 8 area.
In my view, it is in light of this historical context, one which did not, from the Indians' perspective, allow for simple distinctions between hunting for domestic use and hunting for commercial purposes and which involved a solemn engagement that Indians would continue to have unlimited access to wildlife, that one must understand the provision in Treaty No. 8 that reads:
And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the 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. [Emphasis added.]
If we are to remain faithful to the interpretive principles set out in Nowegijick and Simon, then we must not only be careful to understand that the language of Treaty No. 8 embodied a solemn engagement to Indians in the Treaty 8 area that their livelihood would be respected, but we must also recognize that in referring to potential "regulations" with respect to hunting, trapping and fishing the government of Canada was promising that such regulations would always be designed so as to ensure that the Indians' way of life would continue to be respected. To read Treaty No. 8 as an agreement that was to enable the government of Canada to regulate hunting, fishing and trapping in any manner that it saw fit, regardless of the impact of the regulations on the "usual vocations" of Treaty 8 Indians, is not credible in light of oral and archival evidence that includes a Commissioners' report stating that a solemn assurance was made that only such laws "as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made".
In other words, while the treaty was obviously intended to enable the government of Canada to pass regulations with respect to hunting, fishing and trapping, it becomes clear when one places the treaty in its historical context that the government of Canada committed itself to regulate hunting in a manner that would respect the lifestyle of the Indians and the way in which they had traditionally pursued their livelihood. Because any regulations concerning hunting and fishing were to be "in the interest" of the Indians, and because the Indians were promised that they would be as free to hunt, fish and trap "after the treaty as they would be if they never entered into it", such regulations had to be designed to preserve an environment in which the Indians could continue to hunt, fish and trap as they had always done.
Natural Resources Transfer Agreement
When the province of Alberta was created in 1905 its government did not receive the power to control natural resources in the province. Control over natural resources in Alberta remained in the hands of the federal government until 1930 when Canada and Alberta entered into the Transfer Agreement which placed Alberta on the same footing as the other provinces. Mindful of the government of Canada's responsibilities under a series of numbered treaties with Indians, the parties to the Transfer Agreement inserted a paragraph dealing with the Indians' treaty rights to hunt, fish and trap. Paragraph 12 of the Transfer Agreement stated:
12In 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. [Emphasis added.]
In Natural Resources and Public Property under the Canadian Constitution (1969), at p. 180, G. V. La Forest (now a member of this Court) makes the following observation about para. 12 of the Transfer Agreement:
The effect of the provision is to give the Indians a constitutional right as against the provinces to hunt and fish on unoccupied Crown lands; it cannot be unilaterally altered by the provinces. It appears to have been inserted to protect similar rights accorded by the various treaties under which the Indians surrendered the territory now comprising the Prairie provinces, and it has been held to be quite proper to look at these treaties for assistance in determining the meaning of the provision. [Emphasis added.]
The proposition that para. 12 of the Transfer Agreement was formulated with a view to protecting Treaty 8 rights and that it is therefore quite proper to look at Treaty No. 8 in order to understand the meaning of para. 12 of the Transfer Agreement has been emphasized on a number of occasions. For example, in R. v. Smith, [1935] 3 D.L.R. 703, at pp. 705-6, Turgeon J.A. (Mackenzie J.A. concurring) stated:
As I have said, it is proper to consult this treaty in order to glean from it whatever may throw some light on the meaning to be given to the words in question. I would even say that we should endeavour, within the bounds of propriety, to give such meaning to these words as would establish the intention of the Crown and the Legislature to maintain the rights accorded to the Indians by the treaty. [Emphasis added.]
Similarly, in R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247 (Sask. C.A.) (a case relied upon by this Court in Frank v. The Queen, [1978] 1 S.C.R. 95, at p. 100) McNiven J.A. stated at p. 269:
I have already said that whatever rights with respect to hunting were granted to the Indians by the said treaty were merged in par. 12 of the Natural Resources Agreement, supra. I have only referred to the treaty for such assistance as its terms may give in interpreting the language used in par. 12 for we must attribute to parliament an intention to fulfil its terms. It is also a cardinal rule of interpretation that words used in a statute are to be given their common ordinary and generally accepted meaning. Statutes are to be given a liberal construction so that effect may be given to each Act and every part thereof according to its spirit, true intent and meaning". [Emphasis added.]
The view expressed in Smith and in Strongquill to the effect that one should assume that Parliament intended to live up to its obligations under treaties with the Indians was subsequently approved by this Court in Prince and Myron v. The Queen, [1964] S.C.R. 81. Hall J. (for the Court) adopted the following passage from R. v. Wesley, [1932] 2 W.W.R. 337, in which McGillivray J.A. had commented at p. 344:
I think the intention was that in hunting for sport or for commerce the Indian like the white man should be subject to laws which make for the preservation of game but, in hunting wild animals for the food necessary to his life, the Indian should be placed in a very different position from the white man who, generally speaking, does not hunt for food and was by the proviso to sec. 12 reassured of the continued enjoyment of a right which he has enjoyed from time immemorial. [Emphasis added.]
More recently, in Frank v. The Queen, supra, this Court reiterated that para. 12 was in part designed to ensure that the rights embodied in Treaty No. 8 were respected. Dickson J. stated 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. See R. v. Wesley; R. v. Smith; R. v. Strongquill. [Emphasis added.]
In my view, the decisions in Smith and Wesley, cases that were decided shortly after the Transfer Agreement came into force, as well as later decisions in cases like Strongquill and Frank, make clear that, to the extent that it is possible, one should view para. 12 of the Transfer Agreement as an attempt to respect the solemn engagement embodied in Treaty No. 8, not as an attempt to abrogate or derogate from that treaty. While it is clear that para. 12 of the Transfer Agreement adjusted the areas within which Treaty 8 Indians would thereafter be able to engage in their traditional way of life, given the oral and archival evidence with respect to the negotiation of Treaty No. 8 and the pivotal nature of the guarantee concerning hunting, fishing and trapping, one should be extremely hesitant about accepting the proposition that para. 12 of the Transfer Agreement was also designed to place serious and invidious restrictions on the range of hunting, fishing and trapping related activities that Treaty 8 Indians could continue to engage in. In so saying I am fully aware that this Court has stated on previous occasions that it is not in a position to question an unambiguous decision on the part of the federal government to modify its treaty obligations: Sikyea v. The Queen, [1964] S.C.R. 642, R. v. George, [1966] S.C.R. 267, and Moosehunter v. The Queen, [1981] 1 S.C.R. 282, at p. 293. We must, however, be satisfied that the federal government did make an "unambiguous decision" to renege on its Treaty 8 obligations when it signed the 1930 Transfer Agreement.
The respondent in this appeal has not pointed to any historical evidence in support of its claim that para. 12 of the Transfer Agreement was intended to limit the Indians' traditional right to hunt and fish (which included a right of exchange) to one confined to hunting and fishing for personal consumption only. Absent such evidence, and in view of the implications of bad faith on the part of the federal government which would arise from it, I am not prepared to accept that this was the legislature's intent. Indeed, it seems to me that in R. v. Sutherland, [1980] 2 S.C.R. 451, which dealt with an analogous provision in the Transfer Agreement with Manitoba, Dickson J. was concerned to make clear that the restrictive approach favoured by the respondent is entirely inappropriate. He stated at p. 461:
Paragraph 13 of the Memorandum of Agreement, it is true, makes provincial game laws applicable to the Indians within the boundaries of the Province, but with the large and important proviso that assures them, inter alia, the "right" to hunt game at all seasons of the year for food on lands to which the Indians may have a right of access. This proviso should be given a broad and liberal construction. History supports such an interpretation as do the plain words of the proviso. The right assured is, in my view, the right to hunt game (any and all game), for food, at all seasons of the year (not just "open seasons") on lands to which they have a right of access (for hunting, trapping and fishing). [Emphasis added.]
Nevertheless, the respondent argues that the use of the words "for food" in para. 12 of the Transfer Agreement have this effect. They demonstrate, he submits, an intention on the part of the legislature to place substantial limits on the range of hunting related activities that Treaty 8 Indians can pursue free from provincial regulation. The respondent submits that Treaty 8 Indians can only derive protection from para. 12 if the purpose for which they are hunting is to feed themselves or their families and that because Mr. Horseman did not kill the bear with this purpose in mind his act falls outside the ambit of para. 12.
While the respondent suggests that this Court's jurisprudence on para. 12 and analogous provisions in other Transfer Agreements supports its restrictive reading of the proviso, I am of the view that this Court's previous decisions with respect to the language of para. 12 (and its equivalent in other Transfer Agreements) do not require the Court to construe the term "for food" in such a narrow and restricted manner. Given that Treaty No. 8 embodied a solemn engagement on the part of the government of Canada to respect a way of life that was built around hunting, fishing and trapping, given that our courts have on a number of occasions emphasized that we should seek to give meaning to the language used in para. 12 by looking to Treaty No. 8, and given that this Court's decision in Sutherland urged that para. 12 be given a "broad and liberal" construction, it seems to me that we should be very reluctant to accept any reading of the term "for food" that would constitute a profound inroad into the ability of Treaty 8 Indians to engage in the traditional way of life which they believed had been secured to them by the treaty.
I note that in Frank v. The Queen, supra, a case that involved a treaty Indian who had killed a moose, Dickson J. suggested (supra, at pp. 100-101) that, whereas under Treaty 6 hunting rights had been at large, under para. 12 they were now limited to hunting "for food" and that, as a result of para. 12, rights to hunt and fish otherwise than "for food" were subject to provincial game laws. But Dickson J. was quick to stress that in the case before him "these differences are unimportant because the appellant was hunting for food and upon land touched by both Treaty and Agreement" (p. 100). In other words, while the presence of the term "for food" clearly meant that after 1930 the province of Alberta had the power to regulate hunting that was not "for food", Dickson J. saw no need in that case to explore in detail the nature of the distinction between hunting "for food" and hunting for other purposes.
In Moosehunter v. The Queen, supra, a case that involved a treaty Indian who had killed deer in Manitoba, Dickson J. did have occasion to consider the nature of the dividing line created by the term "for food" in somewhat more detail. He observed at p. 285:
The reason or purpose underlying paragraph 12 was to secure to the Indians a supply of game and fish for their support and subsistence and clearly to permit hunting, trapping and fishing for food at all seasons of the year on all unoccupied Crown lands and lands to which the Indians had access. The Agreement had the effect of merging and consolidating the treaty rights of the Indians in the area and restricting the power of the provinces to regulate the Indians' right to hunt for food. The right of Indians to hunt for sport or commercially could be regulated by provincial game laws but the right to hunt for food could not. [Emphasis added.]
In my view, the distinction that Dickson J. drew in Moosehunter between hunting for "support and subsistence", and hunting for "sport or commercially" is far more consistent with the spirit of Treaty No. 8 and with the proposition that one should not assume that the legislature intended to abrogate or derogate from Treaty 8 hunting rights than the respondent's submission that in using the term "for food" the legislature intended to restrict Treaty 8 hunting rights to hunting for direct consumption of the product of the hunt. And if we are to give para. 12 the "broad and liberal" construction called for in Sutherland, a construction that reflects the principle enunciated in Nowegijick and Simon that statutes relating to Indians must be given a "fair, large and liberal construction", then we should be prepared to accept that the range of activity encompassed by the term "for food" extends to hunting for "support and subsistence", i.e. hunting not only for direct consumption but also hunting in order to exchange the product of the hunt for other items as was their wont, as opposed to purely commercial or sport hunting.
And, indeed, when one thinks of it this makes excellent sense. The whole emphasis of Treaty No. 8 was on the preservation of the Indian's traditional way of life. But this surely did not mean that the Indians were to be forever consigned to a diet of meat and fish and were to have no opportunity to share in the advances of modern civilization over the next one hundred years. Of course, the Indians' hunting and fishing rights were to be preserved and protected; the Indians could not have survived otherwise. But this cannot mean that in 1990 they are to be precluded from selling their meat and fish to buy other items necessary for their sustenance and the sustenance of their children. Provided the purpose of their hunting is either to consume the meat or to exchange or sell it in order to support themselves and their families, I fail to see why this is precluded by any common sense interpretation of the words "for food". It will, of course, be a question of fact in