Moosehunter v. The Queen, [1981] 1 SCR 282

SUPREME COURT OF CANADA

Moosehunter v. The Queen, [1981] 1 S.C.R. 282

Date: 1981- 05-11

SUPREME COURT OF CANADA

Moosehunter v. The Queen, [1981] 1 S.C.R. 282

Date: 1981-05-11

Walter Moosehunter (Respondent) Appellant;

and

Her Majesty The Queen (Appellant) Respondent;

and

The Attorney General of Canada, the Attorney General for Alberta and the Council for Yukon Indians Interveners.

1981: March 10; 1981: May 11.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Indians — Hunting rights — Treaty Indian hunting for food in traditional hunting area charged with hunting in Wildlife Management Unit contrary to Saskatchewan Game Act — Wildlife Management Unit in area covered by treaty — Indians' rights to hunt on unoccupied Crown land and other land to which they had a right of access preserved by federal-provincial Natural Resources Agreement — Whether or not Wildlife Management Unit occupied Crown land — If so, whether or not land to which appellant had a right of access — The Game Act, 1967, 1967 (Sask.), c. 78, s. 9(a) — British North America Act, 1930, 1930 (Imp.), c. 26.

Appellant, a treaty Indian, while hunting for food shot and killed a moose on Crown land designated the Cookson Wildlife Management Unit. The Unit was part of the traditional hunting ground of appellant's Band. It was also a designated area under The Game Act (Saskatchewan). On the day in question, all hunting was prohibited in the area. Appellant was charged with unlawfully hunting contrary to The Game Act. His conviction in Magistrate's Court was quashed when appealed to the District Court of Saskatchewan by way of trial de novo. The Court of Appeal allowed an appeal from that decision.

Of the three constitutional questions set down, only one remained in light of an earlier judgment of the Court. That question dealt with the issue of whether or not the Cookson Wildlife Management Unit was

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occupied land within paragraph 12 of the Natural Resources Agreement, and if so, whether or not it occupied Crown land to which appellant had a right of access pursuant to that paragraph, or by reason of the hunting of game being consistently allowed in the Unit, or by virtue of treaty obligations.

The Natural Resources Agreement between Canada and Saskatchewan had been confirmed by the Saskatchewan Legislature and the Canadian and British Parliaments. Paragraph 12 was to ensure Indians of a supply of fish and game for their support and subsistance and allowed the hunting, fishing and trapping for food in all seasons on unoccupied Crown land to which the Indians had access. The Agreement consolidated the treaty rights and restricted the Province's power to regulate the Indians' right to hunt food.

Held: The appeal should be allowed.

The proviso to paragraph 12 of the Natural Resources Agreement provided that if Indians had a right of access to lands, they could hunt "at all seasons of the year". Any attempt by the Province to limit Indian hunting for food to specified times of the year would be direct derogation of the terms of that Agreement. The laws in force at the time of the incident contemplated a limited right to hunt on the land in question. This constituted a "right of access" and engaged the proviso in paragraph 12. It was therefore unnecessary to consider whether the Cookson Wildlife Management Unit was "unoccupied Crown land".

Appellant's position was re-inforced by Treaty No. 6 which covered land within the Cookson Unit. The Government of Canada could alter the rights of Indians under treaties. Provinces cannot. Through the Natural Resources Agreement, the federal government attempted to fulfill its treaty obligations to the Indians. The Province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands or lands to which they had a right of access. Any changes required in the future could be negotiated and alterations made through the provisions for amendment contained in the Agreement.

R. v. Smith, [1935] 2 W.W.R. 433; R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247, referred to; R. v. Sutherland, Wilson and Wilson, [1980] 2 S.C.R. 451;

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Sikyea v. The Queen (1964), 2 C.C.C. 129, applied.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing an appeal from the decision of Halvorson D.C.J. quashing an appeal by way of trial de novo from the decision of Bonnycastle J.M.C. Appeal allowed.

R. B. Buglass and Ron Cherkewich, for the appellant.

Murray Brown and Betty Ann Pottruff, for the respondent.

David Sgayias, for the intervener the Attorney General of Canada.

David E. Cosco, for the intervener the Council for Yukon Indians.

B. A. Crane, Q.C., for the intervener the Attorney General of Alberta.

The judgment of the Court was delivered by

DICKSON J.—On January 12, 1976, Walter Moosehunter, a treaty Indian (Treaty No. 6), while hunting for food, shot and killed a cow moose on Crown land designated the Cookson Wildlife Management Unit. The Unit is part of the traditional hunting ground of the Band of Indians of which Moosehunter is a member. It is also a ‘designated area' under The Game Act, 1967, of the Province of Saskatchewan (1967 (Sask.), c. 78, as amended). On the day in question, all hunting was prohibited in the area.

Moosehunter was charged and convicted in Magistrate's Court with unlawfully hunting in a wildlife management unit, contrary to s. 9(a) of The Game Act, 1967. Section 9(a) of the Act provides:

9. Except as otherwise provided in this Act or The Fur Act, or any regulation made under either or both of those Acts, no person shall:

(a) hunt, trap, snare, poison or otherwise destroy or molest any animal or bird in a game preserve, bird

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sanctuary or any other designated area established pursuant to this Act or the regulations; .. .

Moosehunter appealed his conviction, by way of trial de novo, to the District Court for Saskatchewan. He relied on paragraph 12 of the Natural Resources Agreement signed between Canada and the Province of Saskatchewan in 1930, and confirmed by the Legislature of Saskachewan, 1930 (Sask.), c. 87, the Parliament of Canada, 1930 (Can.), c. 41 and the Parliament of the United Kingdom, British North America Act, 1930, 1930 (Imp.), c. 26.

Paragraph 12 of the Agreement reads:

12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access. [Emphasis added.]

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.

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District Court Judge Halvorson held that Moosehunter fell within the proviso in paragraph

12. In his view, the Cookson Wildlife Management Unit was unoccupied Crown land and land to which Indians had a right of access, thus Moosehunter was entitled to hunt for food on this land at all seasons of the year. The judge reviewed the regulations passed under The Game Act, 1967 and observed that hunting of game is consistently permitted in wildlife management units. He held that the wildlife management units were not in the nature of the game preserves referred to in R. v. Smith[2], where all hunting was forbidden. He likened these units to the forest reserves in R. v. Strongquill[3] where permits allowing hunting were issued on a regular basis. Since hunters had a right of access to these lands, Indians might hunt for food on them at any time of the year. Accordingly, he allowed the appeal and quashed the conviction.

The Court of Appeal unanimously allowed an appeal from this judgment. In short reasons, Mr. Justice Woods stated that the appropriation or setting aside of land for the protection or management of birds and animals is an ‘occupation' by the Crown within the meaning of paragraph 12. He held further that there was no general or particular right of access to these lands by Indians as such. Therefore, the lands were occupied Crown lands to which Indians did not have a right of access. On such lands, Indians are subject to the general hunting laws of the Province, and Moosehunter was guilty as charged.

Leave to appeal to this Court was granted on December 18, 1978. On June 14, 1979, the Chief Justice set down the following constitutional questions:

1. Does s. 9(a) of the Game Act, 1967 (Sask.), c. 78 as amended and regulations thereunder offend against para. 12 of the Natural Resources Agreement between Canada and Saskatchewan, confirmed by 1930 (Can.), c. 41 1930 (Sask.), c. 87 and by the British North America Act, 1930 (Imp.), c. 26?

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2. Is s. 8(2) of the Game Act, 1967 (Sask.), c. 78, in defining certain land as not unoccupied Crown land nor land to which Indians have a right of access, ultra vires or inoperative as offending s. 91(24) of the British North America Act or as offending the British North America Act, 1930 (Imp.), c. 26 because of a unilateral definition of its terms?

3. Is the Cookson Wildlife Management Unit created pursuant to s. 61 of the Game Act, 1967 (Sask.), c. 78 and s. 25 of 1970 (Sask.), c. 24 and Regulations 136/ 1970 and 194/1972 occupied Crown land within para. 12 of the Natural Resources Agreement, as confirmed by Canada and Saskatchewan and by the British North America Act, 1930 (Imp.), c. 26 and, if so, is it occupied Crown land to which the appellant has a right of access pursuant to para. 12 aforesaid or by reason of hunting of game being consistently allowed in Wildlife Management Units under the Game Act, or by virtue of treaty obligations to Indians under Treaty No. 6?

Section 8(1) of The Game Act, 1967, is a general provision reaffirming the terms of paragraph 12 of the 1930 Natural Resources Agreement. It recites that Indians have the right to hunt for food at all seasons of the year on all unoccupied Crown lands and lands to which they may have a right of access. Section 8(2) limits the scope of s. 8(1):

(2) For the purpose of subsection (1) the lands within game preserves, bird sanctuaries, provincial parks and wildlife management areas are deemed not to be unoccupied Crown lands or lands to which Indians have a right of access.

The Attorney General of Canada and the Council for Yukon Indians intervened in support of the position of the appellant Moosehunter. The Attorney General of Alberta intervened in support of the Attorney General of Saskatchewan. The Attorneys General of Ontario and Manitoba were granted leave to intervene but withdrew before the hearing.

The constitutional significance of this appeal was in large part emptied by the judgment of this

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Court in R. v. Sutherland, Wilson and Wilson (judgment delivered June 27, 1980)[4] 4. The respondent Crown conceded that the judgment in Sutherland resolved the first two issues above in favour of the appellant. In respondent's submission, only the third question remained open.

It is necessary at this point to review briefly the facts and the reasoning in Sutherland. The respondents Sutherland and Wilson were apprehended while hunting for food, with the aid of spotlights, in the Mantagao Lake Wildlife Management Area of Manitoba. They were charged under s. 19(1) of The Wildlife Act, R.S.M. 1970, c. W140 with unlawfully at night using lighting or reflecting equipment for the purpose of hunting deer. The Crown relied on s. 49 of The Wildlife Act of Manitoba, a provision similar to s. 8(2) of The Game Act, 1967, of Saskatchewan:

49. For all purposes in respect of the hunting or killing of wildlife, land set aside or designated as

(a) a refuge;

(b) a provincial recreation area;

(c) a provincial forest;

(d) a wildlife management area; or

(e) a community pasture;

under this Act or under any other Act of the Legislature shall be conclusively deemed to be occupied Crown lands to which Indians do not have a right of access for purposes of exercising any rights bestowed upon them under paragraph 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act.

This Court in a unanimous judgment held that s. 49 was ultra vires the Province of Manitoba. The section had effect only in relation to Indians and thus derogated from the right of the federal government to legislate in relation to Indians and Indian lands under s. 91(24) of the B.N.A. Act. The Court held that the Province could not arrogate to itself the right to amend, unilaterally, paragraph 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act (the counterpart of paragraph 12 of the Saskatchewan Natural Resources Agreement) by

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giving words a particular interpretation. The Court then went on to consider whether the Mantagao Wildlife Management Area was unoccupied Crown land or land to which the Indians had a right of access, such that it fell within the provision in paragraph 13 of the 1930 Natural Resources Agreement. There had been concurrent findings in the courts below that the lands were ‘occupied' and, in the circumstances, this Court did not find it necessary to review or disturb those findings. The appeal was resolved on the basis of a "right of access" to the lands in question. Right of access was defined as access for the purpose of hunting, trapping and fishing game and fish. It was recognized that a province could totally deny access to Indians and non-Indians alike for hunting, as in R. v. Smith, supra, but once any hunting is permitted, then Indians (and other members of the public) have a right of access for the purpose of hunting. This right of access engaged the proviso in paragraph 13 of the Manitoba Natural Resources Agreement, and guaranteed to the Indians the right to hunt for food at any season of the year. The Court summarized its reasons as follows:

The Province may deny access for hunting to Indians and non-Indians alike but if, as in the case at bar, limited hunting is allowed, then under para. 13, non-dangerous (Myran et al. v. The Queen (1975), 23 C.C.C. (2d) 73, 58 D.L.R.(3d) 1, [1976] 2 S.C.R. 137), hunting for food is permitted to the Indians, regardless of provincial curbs on season, method or limit: See R. v. Wesley (1932), 58 C.C.C. 269, [1932] 4 D.L.R. 774, [1932] 2 W.W.R. 337; Prince and Myron v. The Queen, [1964] 3 C.C.C. 2, 41 C.R. 403, [1964] S.C.R. 81; R. v. McPherson, [1971] 2 W.W.R. 640. It seems to me that this is the true meaning and intent of para. 13. [at p. 296]

In Sutherland, the area in question was one in which big game could legally be hunted and killed from time to time. It happened that on the day of the alleged offence, there was open season for black bear and grouse. The deer hunting season had been closed for three years. On these facts, the Court upheld the acquittal of Sutherland and

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Wilson. The fact that on the day in question deer hunting was prohibited was considered to be irrelevant. The right of access required to engage the proviso was a right of access to hunt generally. Once a right to hunt was established, then Indians could hunt any species at any time of the year, as long as the hunting was for food and non-dangerous. The regulations in force in Manitoba on October 2, 1967, contemplated a right to hunt on the lands in question. Therefore the right of Indians to hunt these lands for food was constitutionally guaranteed and could not be abrogated by the Province of Manitoba.

I return to the case at bar. As already noted, the Crown concedes that in the light of Sutherland, the first two questions framed in the order of the Chief Justice are no longer in issue. Section 8(2) of the Saskatchewan Game Act, 1967, is analogous to s. 49 of The Wildlife Act of Manitoba and, like that section, is beyond provincial constitutional competence. Moreover, it is clear that Saskatchewan cannot apply s. 9(a) of its Game Act, 1967, to Indians hunting for food on unoccupied Crown lands or on any other lands to which Indians have a right of access. The Crown urges, however, that the third question in the order of the Chief Justice is essentially one of fact, and remains open, notwithstanding Sutherland.

There are difficulties with this submission. The Cookson Wildlife Management Unit was constituted by the Lieutenant Governor in Council by Regulation 136/70 of June 2, 1970. A review of the regulations passed under the Saskatchewan Game Act, 1967, indicates that hunting has consistently been permitted in wildlife management units. Each spring, the Province passes regulations defining the extent of hunting to be permitted during the ensuing year. These regulations continue in force until the next year, when they are repealed and new regulations enacted in their place. The history of hunting in the Cookson Wildlife Management Unit is as follows:

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Reg. 135/70 published June 12, 1970 (in force until July 9, 1971): hunting of elk permitted from November 16, 1970 to December 12, 1970 and from January 11, 1971 to January 23, 1971.

Reg. 192/71 published July 9, 1971 (in force until June 30, 1972): repealed reg. 135/70 and permitted hunting for elk from November 15, 1971 to December 11, 1971.

Reg. 115/72 published June 30, 1972 (in force until June 1, 1973): repealed reg. 192/71 and permitted hunting for elk from November 13, 1972 to December 9, 1972.

Reg. 54/73 published March 16, 1973: permitted hunting for bear from April 30, 1973 until May 19, 1973.

Reg. 118/73 published June 1, 1973 (in force until June 28, 1974): repealed reg. 115/72 and permitted hunting for elk from September 3 to September 12, 1973 and hunting for bear from September 17 to October 6, 1973.

Reg. 177/74 published June 28, 1974 (in force until May 30, 1975): repealed reg. 118/73, no hunting permitted in Cookson Wildlife Management Unit.

Reg. 130/75 published May 30, 1975 (in force until June 4, 1976): hunting for elk permitted from November 3, 1975 to November 8, 1975.

Regulation 130/75 was in force when Moosehunter killed a cow moose on January 12, 1976. The reasoning in Sutherland would seem to dictate the conclusion that, since the regulations in force on January 12, 1976 permitted hunting at some time during the period May 30, 1975, the date of publication of Regulation 130/75 to June 4, 1976, the date of repeal, Indians could hunt for food, and Moosehunter could not be prosecuted for killing a moose in January of 1976.

The Crown contended that this case is distinguishable from Sutherland on its facts. In Sutherland, there had been a right to hunt on the day in question, albeit not a right to hunt deer. In the present case, by way of contrast, there was no right to hunt anything on January 12, 1976. It was argued that the ‘right of access' in paragraph 12 of the National Resources Agreement must be limited to a right of access on the particular day in question. This argument was considered and

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rejected by the Court in Sutherland, where it was stated:

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). An interpretation which would recognize in Indians only the right of access accorded all other persons, in the absence of proof of a "special, peculiar right of access", has the effect of largely obliterating the right of hunting for food provided for in the proviso. [at p. 461]

Even in the absence of Sutherland, the Crown's argument on this point must be rejected. The proviso to paragraph 12 specifically provides that if Indians have a right of access to lands, they may hunt "at all seasons of the year". Thus any attempt by the Province to limit Indian hunting for food to specified times of the year would be in direct derogation of the terms of the 1930 Agreement.

In summary, the laws in force on January 12, 1976 contemplated a limited right to hunt on the land in questsion [sic]. This constituted a ‘right of access' and engaged the proviso in paragraph 12 of the Natural Resources Agreement. In light of this conclusion, it becomes unnecessary to consider whether the Cookson unit was ‘unoccupied' Crown land.

The position of Moosehunter is re-enforced by Treaty No. 6. The treaty covers land within the Cookson Wildlife Management Unit. It is the treaty discussed in R. v. Smith, supra. The pertinent paragraph reads as follows:

"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

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the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government." [at pp. 436-7]

The Government of Canada can alter the rights of Indians granted under treaties (Sikyea v. The Queen)[5]. Provinces cannot. Through the Natural Resources Agreement, the federal government attempted to fulfil their treaty obligations to the Indians. The Province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands or lands to which they had a right of access. Any changes which would be required in the future could be negotiated and alterations made through the provisions for amendment contained in the Agreement.

The appeal should be allowed, the judgment of the Saskatchewan Court of Appeal set aside, and the conviction of the appellant quashed. The appellant is entitled to the return of his 30-30 rifle. The questions should be answered in the following manner:

Question 1: Section 9(a) of The Game Act, 1967, 1967 (Sask.), c. 78 is valid provincial legislation but cannot operate to restrict the right of Indians to hunt in a non-dangerous manner for food in areas to which Indians have a right of access and where limited hunting is allowed.

Question 2: Section 8(2) of The Game Act, 1967, is ultra vires the Legislature of Saskatchewan.

Question 3: The Cookson Wildlife Management Unit is land to which the appellant at the time of his alleged offence had a right of access within paragraph 12 of the Natural Resources Agreement.

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Appeal allowed.

Solicitors for the respondent, appellant: Cherkewich and Pine!, Prince Albert.

Solicitor for the appellant, respondent: The Attorney General of Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

Solicitor for the intervener the Attorney General of Alberta: The Attorney General of Alberta, Edmonton.

Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.

Solicitors for the intervener the Council for Yukon Indians: Cable, Veale, Cosco, Morris, Whitehorse.