SUPREME COURT OF CANADA
The Queen v. Sutherland et al., [1980] 2 S.C.R. 451
Date: 1980-06-27
Her Majesty The Queen Appellant; and
Robert Norman Sutherland, Fred Wilson and Thomas Wilson Respondents;
and
The Attorney General of Canada Intervener.
1980: March 24; 1980: June 27.
Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law — Indians — Application of provincial law to Indians — Whether s. 49 of the Manitoba Wildlife Act ultra vires — The Wildlife Act, R.S.M. 1970, c. W140, s. 49 — The Manitoba Natural Resources Act, 1930 (Man.), 20 Geo. V, c. 30, 1930 (Can.), 20-21 Geo. V, c. 29, 1930 (U.K.), 20-21 Geo. V. c. 13, paras. 13, 24 — British North America Act, 1867, s. 91(24).
Indians — Hunting for food — Wildlife Management Area — Unoccupied Crown lands — Right of access — Unilateral amendment of Memorandum of Agreement — The Wildlife Act, R.S.M. 1970, c. W140, s. 49 — The Manitoba Natural Resources Act, 1930 (Man.), 20 Geo. V, c. 30, 1930 (Can.), 20-21 Geo. V, c. 29, 1930 (U.K.), 20-21 Geo. V, c. 13.
The respondents are treaty Indians residing on the Peguis Indian Reserve in Manitoba. They were apprehended while hunting deer for food in the Mantagao Lake Wildlife Management Area with the aid of spotlights and, as a result, were charged under s. 19(1) of The Wildlife Act of Manitoba. They were convicted in the Fisher Branch Provincial Judge's Court. They appealed unsuccessfully to the County Court, but the Court of Appeal, by a majority, allowed the appeal and directed a verdict of acquittal, holding that s. 49 of the Act is ultra vires. There are two issues raised in this Court: 1) A constitutional question stated as follows: s s. 49 of The Wildlife Act ultra vires in whole or in part? 2) If s. 49 is ultra vires, do treaty Indians have a right of access to the Area, for the purpose of hunting game for food, at any time?
Held: The appeals should be dismissed.
With respect to the first issue: Pursuant to s. 49 of The Wildlife Act, land set aside and designated as a
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wildlife management area is conclusively deemed to be occupied Crown lands to which Indians have no right of access for purposes of para. 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act. By para. 13 the Province assures to the Indians the right to hunt game for food at all seasons of the year on all (i) unoccupied Crown lands and on (ii) any other lands to which the Indians may have a right of access. There is no doubt s. 49 is ultra vires in its entirety. The provision cannot purport to be a law of general application: Indians are singled out for special treatment, and s. 49 seeks to affect the status of Indians in respect of their constitutionally entrenched right to hunt for food. It is a blatant attempt to un-entrench the concluding words of para. 13. Moreover, the Province cannot arrogate to itself the right to amend unilaterally para. 13 by giving words a particular interpretation.
With respect to the second issue: The constitutional right of a province to enact game laws of general application is undoubted, as is the right to set aside reasonable and bona fide areas as game preserves without breaching para. 13 of the Memorandum of Agreement. Here, it is clear that the Area was one in which big game could legally be hunted and killed from time to time, and the evidence established the Area was occupied Crown lands. Was the Area, however, a land to which Indians had a "right of access" within the meaning of para. 13? Paragraph 13 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 the right to hunt game for food at all seasons of the year on lands to which Indians have a right of access for hunting, trapping and fishing. Where, as here, the Province has allowed limited hunting to Indians and non-Indians alike, then non-dangerous hunting for food is permitted to the Indians regardless of provincial curbs on season, method or limit: Once any hunting is allowed, then under para. 13 all hunting by Indians is permissible if hunting for food. Should there be any ambiguity in the phrase "right of access" in para. 13 of the Memorandum of Agreement, the phrase should be interpreted so as to resolve any doubts in favour of the Indians, the beneficiaries of the rights assured by the paragraph.
Four B Manufacturing Ltd. v. United Garment Workers et al., [1980] 1 S.C.R. 1031; C.P.R. v. Notre Dame de Bonsecours Parish, [1899] A.C. 367; Kruger and Manuel v. The Queen, [1978] 1 S.C.R. 104; R. ex rel Clinton v. Strongquill (1953), 105 C.C.C. 262;
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R. v. Mousseau, [1980] 2 S.R.C. 89; R. v. Smith (1935), 3 D.L.R. 703; Myran et al. v. The Queen, [1976] 2 S.C.R. 137; R. v. Wesley (1932), 58 C.C.C. 269; Prince and Myron v. The Queen, [1964] S.C.R. 81; R. v. McPherson (1971), 2 W.W.R. 640; Frank v. The Queen, [1978] 1 S.C.R. 95; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695, referred to.
APPEALS from a judgment of the Court of Appeal for Manitoba, allowing an appeal from the judgment of the County Court and directing a verdict of acquittal. Appeals dismissed.
A. G. Bowering and M. J. Conklin, for the appellant.
M. B. Nepon, Harvey I. Pollock, Q.C., and Brenda Keyser, for the respondents.
James Mabbutt and Bruce A. MacFarlane, for the intervener.
The judgment of the Court was delivered by
DICKSON J.—The respondents are treaty Indians, residing on the Peguis Indian Reserve in Manitoba. On the early morning of October 2, 1976, they were apprehended while hunting deer for food in the Mantagao Lake Wildlife Management Area with the aid of spotlights and, as a result, were charged under s. 19(1) of The Wildlife Act of Manitoba, R.S.M. 1970, C. W140, with unlawfully at night using lighting or reflecting equipment for the purpose of hunting deer. They were convicted in the Fisher Branch Provincial Judges' Court. They appealed unsuccessfully to the County Court. Both courts relied upon s. 49 of The Wildlife Act, the constitutional validity of which is challenged in the present appeals. The Manitoba Court of Appeal, to which the convictions were further appealed, divided on the outcome. Mr. Justice Hall, with whom Chief Justice Freedman and Mr. Justice O'Sullivan concurred, would allow the appeals and direct a verdict of acquittal. Mr. Justice Monnin, Mr. Justice Guy concurring, would have dismissed the appeals. There are two issues raised:
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1. A constitutional question, pursuant to the order of Chief Justice Laskin, namely: Is s. 49 of The Wildlife Act ultra vires in whole or in part? The Attorney General of Canada was granted leave to intervene in the appeal and filed a factum in which an affirmative answer to the constitutional question was sought. The Attorneys General of Saskatchewan and Ontario were also granted leave to intervene but withdrew before the hearing.
2. If s. 49 is ultra vires, do treaty Indians have a right of access to Mantagao Lake Wildlife Management Area, for the purpose of hunting game for food, at any time?
Section 49 of The Wildlife Act reads in this manner:
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.
Land set aside and designated as a wildlife management area is thus conclusively deemed to be occupied Crown lands to which Indians have no right of access for purposes of para. 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act. Paragraph 13 reads:
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
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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.
By para. 13 the Province assures to the Indians the right to hunt game for food at all seasons of the year on all (i) unoccupied Crown lands and on (ii) any other lands to which the Indians may have a right of access. It is readily apparent that the effect of s. 49 of The Wildlife Act, if valid, is thus to proclaim conclusively great tracts of Crown land within the Province to be (i) occupied Crown lands, excluded thereby from the "unoccupied Crown lands" referred to in para. 13; and (ii) lands to which the Indians do not have a right of access, excluded thereby from the "other lands", referred to in para. 13.
I do not think there is any doubt s. 49 of The Wildlife Act is beyond the constitutional competence of the Province of Manitoba and ultra vires in entirety. The provision cannot purport to be a law of general application. Section 49 has effect only against Indians and its sole purpose is to limit or obliterate a right Indians would otherwise enjoy. Indians are singled out for special treatment. While provincial law may apply to Indians, it can only do so " ... as long as such laws do not single out Indians nor purport to regulate them qua Indians ...". Four B Manufacturing Ltd. v. United Garment Workers et al. This legislation is clearly "in relation to" one class of citizens in object and purpose and is, therefore, in constitutional derogation of the right of the federal power to legislate in respect of Indians and lands reserved for the Indians under Head 24 of s. 91 of the British North America Act. See C.P.R. v. Notre Dame de Bonsecours Parish; Kruger and Manuel v. The Queen. As Mr. Justice Hall, speaking for a majority of the Manitoba Court of Appeal in the present case, observed: "It is one thing to deem certain lands to be occupied Crown lands to which the public, including Indians, have no right of
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access; it is quite another thing to deem the same lands to be occupied Crown lands to which Indians have no right of access."
The purpose of any "deeming" clause is to impose a meaning, to cause something to be taken to be different from that which it might have been in the absence of the clause. In the present instance, the patent purpose of s. 49 is to cause certain provincial forests, wildlife management areas, and the like, to be regarded as occupied whether or not, on the facts, they can properly be said to be occupied. The unoccupied is conclusively deemed to be occupied. Section 49 seeks to affect the status of Indians in respect of their constitutionally entrenched right to hunt for food. It is a blatant attempt to un-entrench the concluding words of para. 13 and, by taking lands out of the operation of para. 13, to derogate from rights granted to the Indians by the agreement.
There is a second, equally valid, reason for declaring s. 49 of The Wildlife Act to be ultra vires. The Province cannot arrogate to itself the right to amend, unilaterally, para. 13 of the Memorandum of Agreement of December 14, 1929 by giving words a particular interpretation. Paragraph 24 of that agreement makes provision for amendment in these words:
The foregoing provisions of this agreement may be varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province.
The changes sought to be effected in the agreement, by s. 49 of The Wildlife Act, were not accompanied either by an amending agreement, or by concurrent statutes of the Parliament of Canada and the Legislature of Manitoba. A provincial legislature may not pass laws to determine the scope of the protection afforded by the Natural Resources Transfer Agreement. If the laws have the effect of altering the agreement, they are
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constitutionally invalid; if not, they are mere surplusage.
Mr. Justice Gordon noted in R. ex rel Clinton v. Strongquill, that if the provincial Legislature had defined "game" as limited to jack rabbits, no one would have the temerity to suggest that such legislation was not ultra vires the Province. In Strongquill, the Court of Appeal of Saskatchewan dealt with s. 13 (2) of The Game Act, 1950, c. 76, of Saskatchewan, the purpose and effect of which was similar to s. 49 of The Wildlife Act of Manitoba. Two of the three judges in the majority in the Saskatchewan Court of Appeal, in separate concurring judgments, concluded that s. 13 (2) of The Game Act was ultra vires.
I hold that s. 49 of The Wildlife Act of Manitoba is wholly ultra vires.
II
The second, and more difficult, question which arises is whether, absent s. 49 of The Wildlife Act, the Indians have such right of access as would permit them to hunt game in the Mantagao Wildlife Management Area, at any time, for food.
The constitutional right of a province to enact game laws of general application is undoubted, as is the right, in order to secure the continuance of the supply of game, to set aside reasonable and bona fide areas as game preserves. Although the province may set aside such reserves without breaching para. 13 of the Memorandum of Agreement, it is only fair to note that land selected for such purpose, habitat where game is to be found, is the very land upon which the Indians otherwise could have hunted game for food, without regard to species of game, seasonal restrictions, bag limits, or the like.
Manitoba has set aside large chunks of the Province for wildlife management purposes: Regulation 306/74 lists forty-one such areas, some of which are of vast size. The Mantagao Lake area is
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No. 21. It comprises 190 square miles of forest, lake and marsh. There are a few buildings in the Area, mainly summer cottages, four or five in number. Three hundred and twenty-five acres are seeded to alfalfa as forage for the game. The Area supports deer, elk, moose, wolves, fur-bearing animals, and upland birds. The Province has engaged in deer-tagging studies, big game surveys in the winter, and an elk restocking program. On October 2, 1976 in the Mantagao Lake Wildlife Management Area, there was open hunting season for black bear, sharp-tailed grouse, ruffed grouse and spruce grouse. On that date, no deer hunting was permitted in the area or elsewhere in Manitoba. The deer hunting season had been closed for three years. In other years, if deer hunting was permitted elsewhere, it was permitted in the Area.
There were a number of large signs posted throughout the Area bearing such messages as "Elk restocking area. Hunters be sure to shoot only at legal game" and "Attention big game hunters, snowmobiles prohibited, except for the retrieving of lawfully killed big game animals." It is thus clear that the Area was one in which big game, including deer, could legally be hunted and killed from time to time, and in which limited hunting for black bear and grouse, though not for deer, was permitted on the day of the alleged offences. Two questions must now be addressed: (i) was the Area unoccupied Crown land?; (ii) if not, was it land to which Indians had a "right of access", within the meaning of para. 13 of the Memorandum of Agreement?
On the question as to whether the Area was unoccupied Crown land, we have a finding by Dureault C.C.J. that, quite apart from the deeming provisions of s. 49, the evidence established the Area are occupied Crown land. The Court of Appeal agreed, and I accept the concurrent findings, for the purpose of this case.
As occupied Crown lands, what then is the right of access, of the public and of the Indians, to the
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Mantagao Lake Wildlife Management Area? If the Crown confers upon the public a limited right of access for hunting, do Indians, under para. 13, automatically enjoy unlimited hunting rights?
In reasons for judgment recently delivered in R. v. Mousseau (May 6, 1980), I have expressed the view that "right of access" as used in para. 13 means "access for the purpose of hunting, trapping and fishing game and fish". I would give the phrase a like meaning in the case at bar.
It is arguable that where the Crown has validly occupied lands, there is prima facie no right of access, as is the case with land occupied by private owners, save and except that right of access the Crown confers on the public and/or Indians, as occupant of the land. In the Management Area the Crown has granted public access to hunt, but on certain terms. The Province cannot deny access to Indians while granting it to the public, but the Province can deny access for purposes of hunting which binds Indians and non-Indians alike. In consonance with this line of argument, the Crown contends that the only lands to which the Indians have right of hunting under the proviso to para. 13 are unoccupied Crown lands and Indian reserves. It is said R. v. Smith, supports this contention. The Saskatchewan Court of Appeal in that case confirmed the conviction on a charge of carrying a rifle on a game preserve. Turgeon J.A. said:
Any so called "right" of access which the Indians may enjoy in respect to this preserve is, so far as we were shown, merely the privilege accorded to all persons to enter the preserve without carrying fire-arms. We were not told of any special, peculiar right of access to this preserve conferred upon or enjoyed by the Indians. (at p. 707)
Martin J.A. spoke to the same effect:
Indians undoubtedly have a right of access to certain reserves set apart for them and upon which they reside but they have no right of access to game preserves
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beyond that accorded to all other persons and they are subject, as all persons are, to the provisions of s. 69 of The Game Act. (at p. 710)
I am not prepared to accept the argument of the Crown. The Indians' right to hunt for food under para. 13 is paramount and overrides provincial game laws regulating hunting and fishing. 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) hunting for food is permitted to the Indians, regardless of provincial curbs on season, method or limit. (See R. v. Wesley; Prince and Myron v. The Queen; R. v. McPherson.) It seems to me that this is the true meaning and intent of para. 13.
Paragraph 13 of the Memorandum of Agreement will, I think, be better understood if brief reference is made to two treaties which applied to Indians in Manitoba, Treaty No. 4 and Treaty No. 5. In Frank v. The Queen where consideration was given to para. 12 of the Saskatchewan Natural Resources Transfer Agreement, virtually identical to para. 13 of the Manitoba Agreement, this Court had this to say 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.
By Treaty No. 4, dated September 4, 1870, the Cree and Salteaux tribes ceded, released, surrendered and yielded up to the Government of the Dominion of Canada a large part of what is now the Province of Manitoba in exchange for reserves (one square mile for family of five), small cash
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payments, powder, shot, ball and twine and gardening and carpenters' tools. Of historic interest in the present case is the following provision contained in Treaty No. 4:
And further, Her Majesty agrees that Her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, 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 or other purposes, under grant or other right given by Her Majesty's said Government.
Treaty No. 5 was concluded at Berens River on September 20, 1875 and at Norway House on September 24, 1875, with the Salteaux and Swampy Creek tribes. The Indians surrendered a tract embracing an area of 100,000 square miles, in exchange for reserves (160 acres for each family of five), $5 per person, ammunition, twine for nets and tools. The treaty assured the Indians the "right" to pursue their avocations of hunting and fishing throughout the tract surrendered, in terms similar to those found in Treaty No. 4.
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). 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. The question is not so much one of proving a special right of access, but
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rather one of deciding what type of hunting is permitted, a right of access (at least for certain purposes) being unquestioned. Is the Indian limited to hunting the game which non-Indians may hunt at the particular time, e.g. black bear and grouse, or may the Indian exercise his right to hunt any type of game for food at any time?
In R. v. Wesley, supra, Lunney J. A. considered and rejected the argument that if the proviso had a wide construction it would render nugatory that Indians shall be subject to the game laws of the Province. He properly drew a distinction between the sportsman and the man who is seeking food for the sustenance of himself and his family.
McGillivray J.A. in the same case, in a judgment which has received much favourable comment, adopted the argument of counsel for the accused that "having regard to the proviso at the end of this section an Indian is entitled to hunt any wild animal of any age at any season of the year in any manner he sees fit provided always that he is hunting for food, on unoccupied Crown lands or other lands to which he has a right of access" (at p. 275). At pp. 275-6 of the report, the following passage appears which, with respect, I would adopt:
It seems to me that the language of s. 12 is unambiguous and the intention of Parliament to be gathered therefrom clearly is to assure to the Indians a supply of game in the future for their support and subsistence by requiring them to comply with the game laws of the Province, subject however to the express and dominant proviso that care for the future is not to deprive them of the right to satisfy their present need for food by hunting and trapping game, using the word "game" in its broadest sense, at all seasons on unoccupied Crown lands or other land to which they may have a right of access.
The Court's conclusions are found in the following passage, quoted by my brother Martland in Cardinal v. Attorney General of Alberta
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and by Mr. Justice Hall in the earlier case of Prince and Myron v. The Queen., supra:
If the effect of the proviso is merely to give to the Indians the extra privilege of shooting for food "out of season" and they are otherwise subject to the game laws of the Province, it follows that in any year they may be limited in the number of animals of a given kind that they may kill even though that number is not sufficient for their support and subsistence and even though no other kind of game is available to them. I cannot think that the language of the section supports the view that this was the intention of the law makers. 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 s. 12 reassured of the continued enjoyment of a right which he has enjoyed from time immemorial. (at p. 276)
In the Strongquill case, supra, the accused, a treaty Indian, hunting for food, killed a moose in the Porcupine Forest Reserve, also known as fur conservation area No. 103 in the Province of Saskatchewan, at a time when the hunting and killing of moose was prohibited, but the season for hunting of other big game was open. As I read the judgments, a majority of the Court held that if the Indians had access to hunt, limitation could not be placed on that access. That is to say, once any hunting is allowed, then under para. 13 all hunting by Indians is permissible, if hunting for food. Each of the three judges in the majority (Gordon, Procter and McNiven JJ.A.) delivered a separate judgment. Mr. Justice Gordon distinguished R. v. Smith, supra, on the ground that in Smith the accused Indian was hunting on a game preserve on which all hunting was absolutely prohibited. In setting aside the conviction he said, at p. 260: "The accused having the right of access to the forest reserve in question to hunt for big game, I think he had the right to shoot moose provided it was needed for food"—and—" ... the Indians should be preserved before moose." The following passage
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is taken from the reasons of Mr. Justice McNiven, at pp. 266-7:
The justice of the peace in par. 6 of the stated case has found that "the area known as Porcupine Provincial Forest Reserve and also as fur conservation area No. 103 was open to any visiting hunters who have a licence and they are permitted to hunt over that area which is crown lands." Such being the case Strongquill apart from the other legislation to which I have referred had the same "right of access" to the crown land in the Porcupine Forest Reserve and fur conservation area, No. 103, as the other hunters referred to in para. 6 of the stated case. Having such access to that crown land it was lawful for him to kill the moose for food under the special right reserved to him by par. 12 of the agreement hereinbefore referred to notwithstanding that the killing of moose in the province generally was prohibited.
Mr. Justice McNiven also had this to say, at p. 271:
In addition in the stated case there is the fact that the area in question "was open to any visiting hunters who have a licence and they are permitted to hunt over that area which is Crown lands." In my opinion the accused, a treaty Indian, had a right of access to the said land, a right to hunt thereon for and kill the said moose for food irrespective of the provincial Game Act, 1950.
In the case at bar, Mr. Justice Hall dealt briefly with the point under discussion, in these words:
The evidence establishes that factually the area was occupied Crown land to which the Indians had and exercised a right of access. Therefore, but for the deeming provision (sec. 49(d)), the conviction cannot be allowed to stand.
If there is any ambiguity in the phrase "right of access" in para. 13 of the Memorandum of Agreement, the phrase should be interpreted so as to resolve any doubts in favour of the Indians, the beneficiaries of the rights assured by the paragraph. Any attempt to construe "access" in limited terms as, for example, to hunt the particular type of game which non-Indians could legally hunt at
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the time would, it seems to me, run counter to the authorities to which I have referred and so dilute the word "access" as to make meaningless the assurance embodied in the proviso to para. 13.
I would dismiss the appeals and answer the constitutional question formulated by the Chief Justice in this manner: Section 49 of The Wildlife Act, R.S.M. 1970, c. W140, is wholly ultra vires. There should be no order as to costs for or against any of the parties or for or against the intervener Attorney General of Canada.
Appeals dismissed.
Solicitor for the appellant: The Deputy Attorney-General, Winnipeg.
Solicitors for the respondents: Pollock & Company, Winnipeg.
Solicitor for the Attorney General of Canada: The Regional Director, Department of Justice, Winnipeg.
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