Western Canadian Game Warden

The initial decisions in these cases start off at the provincial or territorial court level. Once the decision has been made at the provincial level, it can be appealed by either the Crown or defence to the next level, which could be either the Provincial Supreme Court or the court of Queen’s Bench. From here, the case is either affirmed or overturned when it will go to the court of appeal. The court of appeal, which is the highest provincial court, only hears legal arguments and does not, generally speaking, listen to new evidence. Once the court of appeal has made its decision, the last option for appeal can be made at the Supreme Court of Canada.

 

The Supreme Court of Canada serves Canadians by deciding legal issues of national importance. This high court holds three sessions a year (each session lasting about three months) and hears between 65 and 80 appeals annually. In order for a case to be heard by the Supreme Court of Canada, the case has to be filed and leave has to be granted. Evidence, documentation, and decisions from the lower court rulings must be filed. Finally, the issues that are being argued must also be presented. Both the appellant and the respondent get to make oral arguments as well as any interveners.

In Canada, there have been many decisions made at the Supreme Court of Canada level that are directly related to harvest rights and land claim rights of First Nations people. Once the decision is made at the Supreme Court level, it is absolute and all provinces must follow the decision on all development of laws and procedures. Since the Constitution Act, 1982, there have been many important decisions made at the Supreme Court of Canada that has been the framework for all provincial legislation and policy.

 

I recently asked Mitch McAdam Q.C., Director of the Saskatchewan Ministry of Justice Constitution Law Branch, what he thought were the top ten Supreme Court of Canada decisions surrounding Aboriginal hunting and fishing rights in Canada. In this feature, I will describe the Supreme Court decisions that Mitch identified and explain how these decisions have affected provincial natural resource management.

 

R. v. Sparrow, 1990

In my mind, as an enforcement officer, the Sparrow decision is the most important and is a key decision in the foundation of Aboriginal hunting and fishing rights. In 1984, Ronald Sparrow, from the Musqueam First Nation in British Columbia, was charged with using a drift net longer than permitted. Sparrow admitted to all of the facts, but justified it as his right to fish under Section 35 of the Constitution Act, 1992.

 

He was found guilty at the provincial court trial, and this decision was upheld by the BC County Court, but an appeal to the BC Court of Appeal was successful. From here, it was heard at the Supreme Court of Canada in 1988. In a unanimous decision, the Supreme Court of Canada agreed with Sparrow confirming that Aboriginal and treaty rights that were still in existence in 1982 now have constitutional protection. It was important to note that the Court judged that these rights were not absolute, as governments can still apply regulations to Aboriginal rights as long as they meet a justification test.

 

This justification test, known as the Sparrow Test, sets out a list of criteria that determine whether a right exists and if so, how governments may be justified or allowed to infringe upon it. The Sparrow Test defines whether a right has been infringed upon and outlines what might justify an infringement.

Does the infringement:

 

a) Impose undue hardship on the First Nation?

b) Impose unreasonable limitations on the First Nation?

c) Prevent an Aboriginal person from their preferred means of exercising that right?

 

The Sparrow Test also outlines what circumstances may justify an infringement upon an Aboriginal right. The Sparrow Test concludes that an infringement may be justified if:

 

● The infringement serves a “valid legislative objective.” The court suggested a valid legislative objective would be conservation of natural resources, in which First Nations interest would come second only to that;

● There has been as little infringement as possible in order to effect the desired result;

● Fair compensation was provided, and,

●Aboriginal groups were consulted, or, “at the least… informed (FN & Indigenous Studies, UBC).

 

The Supreme Court did not make any recommendations about what adequate consultation or compensation meant and also acknowledged that other considerations may be taken into account, depending on the circumstances of the infringement.

 

R. v. Horseman, 1990

In 1985, Bert Horseman, a status Indian (under Treaty 8 - which covers northern Alberta, and parts of northern British Columbia and Saskatchewan) was out hunting moose as part of his treaty right. While hunting, he was attacked by a grizzly bear. The bear was destroyed during the attack as Horseman defended himself from the bear. Horseman did not have a licence to hunt grizzly bear or sell grizzly bear hides at the time of the occurrence.

Horseman kept the bear hide in his possession for a year, at which point he purchased a bear hunting licence and sold the hide as his family needed the money. Horseman was charged in Alberta for trafficking in wildlife.

 

At trial, Horseman argued that it was his right to sell the bear hide as he was within his Treaty 8 rights at the time. He was acquitted at the trial as the judge agreed that his Treaty 8 rights included the right to barter. This decision was overturned and a conviction ordered on Horseman. The court of appeal ruled that the Natural Resources Transfer Agreement of 1930 only included the right to hunt for food.

 

The NRTA is the constitutional document that transferred Crown lands from the federal government to the prairie provinces in 1930. It contains a clause protecting Indian hunting rights. The Court held that even though the original treaties included the right to hunt for commercial purposes, the NRTA limited this right to hunting for food.

 

In 1990, the case was heard by the Supreme Court of Canada. Here, the conviction was upheld as the Supreme Court felt that the taking of the bear was not the issue. The sale of the bear hide resulted in a hunting activity based on the sale of wildlife for money and ceased to be that of hunting for food. The trafficking section of the Alberta Wildlife Act is a reasonable piece of legislation enacted by the Alberta government because of the conservation issues surrounding grizzly bears in Alberta. In the end, the Supreme Court ruled that commercial hunting rights set out in the original treaties have been extinguished by the Natural Resources Transfer Agreement and the only existing right was the right to hunt and fish for food.

 

R. v. Badger, 1996

This was a very important decision on Aboriginal hunting rights as it focused on the issue of whether First Nations people can legally hunt on private land without permission. Wayne Badger, Leroy Kiyawasew, and Ernest Ominayak were Cree status Indians (under Treaty 8) when they were hunting for food pursuant to their treaty rights. Badger was apprehended by officers hunting near a house, Kiyawasew was apprehended hunting in a cultivated field, and Ominayak was apprehended hunting in uncleared muskeg. Two of the men had harvested a moose and all three were charged with hunting without a licence contrary to the Alberta Wildlife Act. At the provincial court trial, all three men were convicted and these convictions continued through the appeal processes until the case reached the Supreme Court of Canada.

 

The argument raised was that status Indians (under Treaty 8) have the right to hunt for food on private land which lies within the territory surrendered under Treaty 8. The country’s highest court decided that the appeals of Badger and Kiyawasew should be dismissed, but the appeal of Ominayak should be allowed with a new trial so that the justification of the infringement can be examined. The court found that Badger and Kiyawasew were hunting on privately owned land that was clearly being used for a purpose incompatible with hunting. Badger was hunting on some scrub land near an occupied house and Kiyawasew was hunting in a cultivated field that had crops on it earlier that year. Ominayak, however, was on a muskeg. Hence, Indians can hunt on privately owned lands that are not “visibly in use for a purpose incompatible with hunting” without permission.

 

R. v. Van der Peet, 1996

Dorothy Van der Peet is a member of the Stó:lō Nation located in the lower Fraser River area of British Columbia. She was charged for selling ten salmon that her common-law husband and his brother had caught under their native food fishing licence. One of the conditions set out in this licence to catch fish for food was that they were not allowed to sell any of the catch. Van der Peet was charged with selling fish taken under an Indian food fish licence. At trial, she was found guilty, but then an appeal reversed the original provincial court decision. The BC Court of Appeal upheld the conviction, and from here it went to the Supreme Court of Canada.

 

The question being argued was whether the Fisheries Act infringed on an existing Aboriginal right to sell fish under Section 35(1) of the Constitution Act, 1982. In their decision, the Supreme Court ruled that it was not an existing right to sell fish to earn a moderate livelihood in this case. I use the words “this case” because there have been subsequent cases which have found Aboriginal rights to fish for commercial purposes. In order to prove that something is an Aboriginal right, the person must show that it is a custom, practice or tradition that was an integral part of the distinctive culture of the community at the date of its first contact with Europeans and continues to have this significance within the community today.

 

R. v. Sundown, 1999

This is a unique case that does not directly deal with hunting. In the mid-1990s, John Sundown, a member of a Cree First Nation that is a party to Treaty 6, built a cabin in Meadow Lake Provincial park in northwest Saskatchewan. Sundown cut down trees without a permit to construct a permanent cabin, which is against the Parks Regulations in Saskatchewan. He was charged under the Parks Regulations and was convicted in Meadow Lake Provincial Court.

 

Sundown appealed his conviction, arguing that the construction of the cabin was a necessary requirement to his treaty right to hunt. He argued that he needed the cabin in the park to live in while hunting to provide shelter, skin pelts, and smoke fish. The Crown conceded that the accused’s right to hunt for food during all seasons extended into the park because the province permitted hunting within certain areas of the park. When it reached the Supreme Court of Canada, the court had to consider whether the activity or the cabin was reasonably related and required to allow Sundown the right to hunt.

Based on the evidence provided, the Court concluded that the cabin was used in a manner reasonably related to hunting and that the province was not able to show any evidence portraying the incompatibility between the construction of the cabin and the intended use of the park by the government. The conviction surrounding the unlawful cutting of trees was upheld because this activity was not reasonably related to the right to hunt.

 

R. v. Marshall, 1999

In 1993, Donald John Marshall, a Mi’kmaq member of the Membertou First Nation, was checked while fishing in the Pomquet Harbour in Nova Scotia. He was charged with the selling of eels without a licence, fishing without a licence and fishing during the close season with illegal nets. Marshall admitted to catching over 460 pound of eels and selling them for $787.10 to support himself and his wife. Marshall was convicted at the Provincial Court level and the Court of Appeal upheld the conviction affirming concluding that the trade clause did not grant the Mi’kmaq any rights, but represented a mechanism imposed upon them to help ensure that the peace between the Mi’kmaq and the British was a lasting one, by obviating the need of the Mi’kmaq to trade with the enemies of the British or unscrupulous traders (R. v. Marshall, 1999).

 

The Supreme Court of Canada saw things a bit differently. Marshall claimed that he was allowed to catch and sell fish under the authority of a treaty signed with the British Crown. In September 1999, the Supreme Court of Canada agreed and affirmed the Mi’kmaq people’s right right to catch and sell fish in order to earn a moderate livelihood. These rights flow from the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the ancestors of the Mi’kmaq and Maliseet. In November 1999, the Supreme Court of Canada provided clarification to its earlier ruling in that these rights were not unlimited and the fishery could be regulated by the Crown as long as they could be justified through conservation of other public interests.

 

R. v. Powley, 2003

In 1993, Steve Powley and Roddy Charles Powley were hunting moose near Sault Ste Marie, Ontario, and were charged by conservation officers for unlawful hunting and unlawful possession of one bull moose. Both Steve and Roddy Powley stated that they were Metis and the right to hunt and possess the moose was part of their Aboriginal or treaty rights.

 

At trial, the provincial court judge acquitted both men on all counts as the Crown had failed to justify its regulatory infringement of the Metis right. The trial judge based his decision on seven criteria including the fact that the Powleys had an ancestral connection to a Metis community near Sault Ste Marie, that this community had expanded beyond the boundaries of Sault Ste Marie, and that large and small game hunting was a integral to their way of life.

The most important issue was whether the provincial regulatory plan infringed on the Metis Aboriginal right to hunt. The Crown appealed and the decision was upheld at the Ontario Superior Court and the Court of Appeal. When the case was heard by the Supreme Court of Canada, the highest court upheld the decisions of the lower courts and decided that the test used in the Van der Peet decision to test for Aboriginal rights should be used to test Metis rights as well. The only difference is that the Metis were not present prior to European contact and that the Metis society came to be with the mixing of Aboriginal and European settlers.

 

In their decision, the Supreme Court of Canada set out a test for establishing Metis Aboriginal hunting and fishing rights. The test is similar to the test for proving Aboriginal rights in the First Nations context, except that the relevant date for determining important cultural practices is the date when the government asserted control over the area, and not the date of first contact with Europeans.

 

The court ruled that in order for this ruling to apply to specific Métis people, they must show that the practice of hunting, as in this case, is a practice or activity of a rights-bearing Métis community prior to European political and legal control, and that they are members of the corresponding modern Métis community. This means that as long as a Métis group of people established a rights-bearing community that was distinctive from any Indian or Inuit or Aboriginal group that they originated from, then the practices that community exercised prior to European control may recognized by Section 35(1) of the Constitution Act, 1982.

 

R. v. Blais, 2003 

In this case, the Supreme Court of Canada clarifies the issue as to whether or not Metis are Indians under the hunting rights provisions of the Natural Resource Transfer Agreement of 1930.

 

In February 1994, Ernest Blais, and two other men, were hunting deer in Manitoba on unoccupied Crown land. Blais was charged with unlawful hunting of deer and the case went to trial. At trial, Blais contended that he was Metis and had an Aboriginal right to hunt for food under Section 35 of the Constitution Act, 1982. He further argued that he was hunting deer on unoccupied Crown land which was allowed under paragraph 13 of the Natural Resource Transfer Agreement (NRTA). His argument was that this agreement stipulated that provincial laws respecting game do not apply to an Indian’s right to hunt, trap and fish on unoccupied Crown lands. He felt that Metis were recognized as Indians for this purpose.

 

The trial judge rejected both defences and Blias was convicted of unlawful hunting. Appeals sent this decision to the Manitoba Court of Queen’s Bench and the Court of Appeal where they were both dismissed. The Supreme Court of Canada ruled with the lower courts stating that NRTA’s historical application of the term Indian did not include Metis.

 

Not all Supreme Court decisions involve Aboriginal hunting and fishing rights. These last two cases deal more with the duty to consult and that if any development occurs on First Nations traditional territory without consultation it will be considered an infringement on treaty hunting rights.

 

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 

While this is a Duty to Consult case, the Court makes the important point that any development that occurs on a First Nation’s traditional territory without consultation will be considered a breach of the Crown’s obligation to consult before “taking up” land under the Treaty and could result in developments being halted by the courts.

 

In 1899, an agreement was made between the Crown and the Aboriginal people living in what is now called northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territories. The Treaty 8 agreement allowed the Crown to utilize over 850,000 square kilometres.

 

Compensation for the surrender of these lands to the Crown included reserves and the continued rights to hunt, trap, and fish throughout the land that was surrendered to the Crown. Tracts of land that may be required or taken up from time to time for settlement, mining, logging, trading or other purposes could not be used for hunting, trapping, or fishing. In 2000, without consultation, the federal government approved a winter road which passed through a Mikisew reserve. The Mikisew protested and the government adjusted the route along the boundary of the reserve, once again without any consultation. The Crown felt that it did not need to consult with the Mikisew First Nation about this road as the development was of low importance and the duty to consult was not necessary.

 

The first level of court ruled that the Crown had not consulted with the Mikisew properly while the Court of Appeal ruled that the Crown simply took up some of the surrendered land rather than infringed on it. The Supreme Court of Canada ruled against the Crown stating that the Crown’s actions ignored the mutual promises of the treaty. The Crown knew of the adverse effect this road would have on the Aboriginal way of life. The end result of the ruling was that the road construction was quashed and that in the future, the Crown must consult with First Nation before any development on treaty lands.

 

Grassy Narrows First Nation v. Ontario 2005

In 2005, the Grassy Narrows First Nation, an Ojibway First Nation signatory to Treaty 3, began a court challenge of a forestry licence issued by the Ontario government. This forestry licence would allow a large pulp and paper plant and authorized clearcut forestry operations within their Treaty area.

In 1873, under Treaty 3, the Ojibway Chiefs surrendered ownership of some of their territory, except for certain reserve lands. As in the Treaty 8 land surrender from the Mikisew case, in return the Ojibway were to receive the right to harvest the non-reserve lands for fish and wildlife until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada.

 

The trial judge ruled that the Ontario could not take up these lands for forestry operations so as to limit the treaty hunting and fishing rights agreed upon, without first obtaining permission from Canada. The Court of Appeal held that the Crown simply took up some of the surrendered land as it was entitled to do under the Treaty. Ontario had ownership of the Crown lands within Ontario, which meant that the provincial government had exclusive… and didn’t need Canada’s permission.

 

Ontario felt that the original land agreement between the Ojibway and the Crown was made with the federal government, meaning that the Ontario government did not need to follow it. The Supreme Court of Canada ruled that the province must respect the treaty hunting rights as, even though it was the federal government who made the deal, the Ontario government is still the Crown. It also ruled that the Ontario can take up land within Treaty 3 as per the treaty, but must consult with, and accommodate, the Ojibway people wherever possible.

 

As you can see, many of these decisions have had a huge impact on how provinces deal with Aboriginal rights to hunt and fish and how provinces must consult with First Nations. These decisions are now absolute and the decisions final so that each province has a decision based on law to develop their policies pertaining to Aboriginal rights.

 

Even though the decisions are final, the justices have made it clear that interpretations can change based on what is brought forward to them. Aboriginal law, and the rights of First Nations people, are constantly in flux with new decisions being rendered at the provincial level that may find their way to the Supreme Court of Canada for a final decision.

 

Note: In this article, the word Indian refers to the legal identity of an Indigenous person who is registered under the Indian Act. It is used in discussions of legal and constitutional matters requiring precision in terminology and in discussions of rights and benefits provided on the basis of Indian status.

In future issues of the Western Canadian Game Warden, we will examine some of the individual rights that are guaranteed to First Nations people and how each province administers First Nations rights.

 

References: Judgements of the Supreme Court of Canada

R. v. Sparrow, [1990] 1 SCR 1075

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do

 

R. v. Horseman, [1990] 1 S.C.R. 901

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/600/index.do

 

R. v. Badger, [1996] 1 S.C.R. 771

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1366/index.do R. v. Van der Peet, [1996] 2 S.C.R. 507 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1407/index.do

 

R. v. Sundown, [1999] 1 S.C.R. 393

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1687/index.do

 

R. v. Marshall, [1999] 3 S.C.R. 456

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1739/index.do

 

R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2076/index.do

 

R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2077/index.do

 

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2251/index.do

 

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14274/index.do Marshall

 

R. v. Marshall, Indigenous and Northern Affairs Canada

https://www.aadnc-aandc.gc.ca/eng/1100100028614/1100100028615

 

Powley

R. v. Powley Wiki

entry https://en.wikipedia.org/wiki/R_v_Powley Sparrow Test First Nations & Indigenous Studies, University of British Columbia http://indigenousfoundations.arts.ubc.ca/sparrow_case/