Supreme Court of Canada
Daniels v. White, [1968] S.C.R. 517
Date: 1968-04-29
Paul Daniels Appellant;
and
Ronald Addison
White and Her Majesty The Queen Respondents.
1967: November 20; 1968: April 29.
Present: Cartwright C.J. and Fauteux,
Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
MANITOBA
Criminal law—Indians—Hunting rights of
Manitoba Indians—Possession of game birds prohibited season contrary to
statute—Whether exempt from compliance with statute by virtue of agreement
between Canada and Manitoba—Indian Act, R.S.C. 1952, c. 149—Migratory Birds
Convention Act, R.S.C. 1952, c. 179, s. 12(1)—Manitoba Natural Resources
Act , 1930 (Can.), c. 29; 1930 (Man.), c. 30—B.N.A. Act, 1930, c. 26.
The appellant is an Indian from the Province of Manitoba and was convicted of
having game birds in his possession, contrary to s. 12(1) of the Migratory
Birds Convention Act, R.S.C. 1952, c. 179. On appeal by way of trial de
novo, the conviction was quashed. On a further appeal to the Court of
Appeal, the conviction was restored by a majority judgment. The appellant was
granted leave to appeal to this Court. The issue in the appeal is whether
para. 13 of an agreement made on December 14, 1929, between the government
of Canada and the government of
Manitoba (approved by statutes
of the United Kingdom Parliament, the Parliament of Canada and the Legislature
of Manitoba) exempts the appellant from compliance with the Migratory Birds
Convention Act and the regulations made thereunder. Paragraph 13 provides
that… “Canada agrees that the laws respecting game in force in the Province
from time to time shall apply to the Indians within the boundaries thereof,
provided, however, that the said Indians shall have the right, which the Province
hereby assures to them, of hunting, trapping and fishing game and fish for food
at all seasons of the year on all unoccupied Crown lands and on any other lands
to which the said Indians might have a right of access”.
Held (Cartwright
C.J. and Ritchie, Hall and Spence JJ. dissenting): The appeal should be
dismissed.
Per Fauteux,
Abbott, Martland, Judson and Pigeon JJ.: Paragraph 13 of the agreement did not
have the effect of exempting the appellant from compliance with the Migratory
Birds Convention Act and the regulations made thereunder. The whole tenor
of the agreement is that of a conveyance of land imposing specified obligations
and restrictions on the transferee, not on the transferor. This applied
particularly to para. 13 which made provincial game laws applicable to
Indians in the province subject to the proviso contained therein. That only
provincial game laws were in the contemplation of the parties, and not federal
enactments, is underscored by the words “which the Province hereby assures to
them” in para. 13. Care was taken in framing para. 13 that the
legislature of the province could not unilaterally affect the right of Indians
to hunt for food on unoccupied Crown lands. The agreement and the legislation
confirm-
[Page 518]
ing it did no more than impose specified
obligations and restrictions upon the transferee province. They did not repeal
by implication a statute of Canada giving effect to an international convention.
Per Pigeon J.:
This was a case for the application of the rule of construction that Parliament
is not presumed to legislate in breach of a treaty or in any manner
inconsistent with the comity of nations and the established rules of
international law. The words in para. 13 of the agreement “Canada agrees that the laws respecting game
in force in the Province from time to time shall apply to the Indians within
the boundaries thereof” contemplate the laws of Manitoba. It is perfectly possible without doing violence to the language
used to construe para. 13 as applicable solely to provincial laws and thus
to avoid any conflict. Furthermore, it would not only be foreign to the
declared object of the agreement but even inconsistent with it, to provide for
an implied modification of the Migratory Birds Convention Act.
Per Cartwright
C.J., dissenting: The words “which the Province hereby assures to them”
do not cut down the right of hunting which in plain and unequivocal words
para. 13 say the Indians shall have. The rights given to the Indians by
the words of para. 13 have been, since 1930, enshrined in our Constitution
and given the force of law “notwithstanding anything in…any Act of the
Parliament of Canada”. There is no rule which permits to add after the words “Canada” the words “except the Migratory
Birds Convention Act”.
Per Ritchie,
Hall and Spence JJ., dissenting: The words in para. 13 of the
agreement “which the Province hereby assures to them” do not have the effect of
limiting the rights thereby accorded to the Indians, to provincial rights, but
rather to constitute additional assurance of the general rights described in
that paragraph.
In view of the words of s. 1 of the B.N.A.
Act, 1930, giving the agreement the force of law “notwithstanding anything
in…any Act of the Parliament of Canada”, the agreement takes precedence over
the Migratory Birds Convention Act and the regulations made thereunder,
with the result that these enactments do not apply to Indians in Manitoba when
engaged in hunting migratory birds for food in the areas set out in para. 13.
Droit criminel—Indiens—Droit de chasse des
Indiens du Manitoba—Possession de gibier en temps prohibé contrairement au
statut—Convention entre le Canada et le Manitoba dispense‑t-elle d’obéir
au statut—Loi sur les Indiens, S.R.C. 1952, c. 149—Loi sur la Convention
concernant les oiseaux migrateurs, S.R.C. 1952, c. 179, art. 12(1)—Loi des
ressources naturelles du Manitoba , 1930 (Can.), c. 29; 1930 (Man.), c. 30—Acte
de l’Amérique du Nord britannique, 1930, c. 26.
L’appelant, un Indien du Manitoba, a été
déclaré coupable d’avoir eu en sa possession du gibier contrairement à l’art.
12(1) de la Loi sur la Convention concernant les oiseaux migrateurs, S.R.C.
1952, c. 179. Sur appel par voie de procès de novo, la déclaration de
culpabilité a été annulée. Sur appel subséquent à la Cour d’appel, la
déclaration de culpabilité a été rétablie par un jugement majoritaire.
L’appelant a obtenu la permission d’appeler à cette Cour. La question à
débattre est de savoir si le para. 13 de la convention faite le 14
décembre 1929
[Page 519]
entre le gouvernement du Canada et le
gouvernement du Manitoba (ratifiée par les statuts du parlement du Royaume-Uni,
du parlement du Canada et de la législature du Manitoba) dispense l’appelant
d’obéir à la Loi sur la Convention concernant les oiseaux migrateurs et les
règlements établis en vertu d’icelle. Le para. 13 stipule que…«le Canada
consent à ce que les lois relatives au gibier et qui sont en vigueur de temps à
autre dans la province, s’appliquent aux Indiens dans les limites de la
province; toutefois, lesdits Indiens auront le droit que la province leur
assure par les présentes de chasser et de prendre le gibier au piège et de
pêcher le poisson, pour se nourrir en toute saison de l’année sur toutes les
terres inoccupées de la Couronne et sur toutes les autres terres auxquelles
lesdits Indiens peuvent avoir un droit d’accès».
Arrêt: L’appel
doit être rejeté, le Juge en Chef Cartwright et les Juges Ritchie, Hall et
Spence étant dissidents.
Les Juges
Fauteux, Abbott, Martland, Judson et Pigeon: Le paragraphe 13 de la convention
ne dispense pas l’appelant d’obéir à la Loi sur la Convention concernant les
oiseaux migrateurs et aux règlements établis en vertu d’icelle. La
convention est un acte de transmission de propriété imposant des obligations et
des restrictions spécifiques au cessionnaire, mais non pas au cédant. Ceci
s’applique particulièrement au para. 13 qui rend les lois de chasse
provinciales applicables aux Indiens dans la province sous réserve de la
condition y prévue. Les mots «que la province leur assure par les présentes»
dans le para. 13 montrent bien que les parties n’avaient en vue que les
lois de chasse provinciales et non pas les lois fédérales. On a pris soin de
s’assurer que la province ne pourrait pas unilatéralement porter atteinte au droit
des Indiens de chasser pour se nourrir sur les terres inoccupées de la
Couronne. La convention ainsi que la législation la ratifiant n’ont pas d’autre
effet que d’imposer des obligations et des restrictions spécifiques à la
province cessionnaire. Elles n’ont pas eu pour effet d’abroger implicitement un
statut du Canada qui donnait effet à une convention internationale.
Le Juge
Pigeon: Il s’agit d’un cas où l’on doit appliquer la règle d’interprétation
disant que le parlement n’est pas censé légiférer à l’encontre d’un traité ou
d’une manière incompatible avec les convenances et les règles établies du droit
international. Dans le para. 13 de la convention, les mots «le Canada
consent à ce que les lois relatives au gibier et qui sont en vigueur de temps à
autre dans la province, s’appliquent aux Indiens dans les limites de la
province» visent les lois du Manitoba. Sans faire violence aux mots dont on
s’est servi, il est parfaitement possible d’interpréter ce para. 13 comme
s’appliquant uniquement aux lois provinciales et ainsi d’éviter tout conflit.
Interpréter ce paragraphe comme une modification implicite de la Loi sur la
Convention concernant les oiseaux migrateurs serait non seulement
s’éloigner de l’objet de la convention mais aller à l’encontre.
Le Juge en Chef
Cartwright, dissident: Les mots «que la province leur assure par
les présentes» n’enlèvent rien au droit de chasser qu’en des termes clairs et
non équivoques le para. 13 dit que les Indiens possèdent. Les droits
donnés aux Indiens par le para. 13 ont été, depuis 1930, consacrés par
notre constitution et sont devenus la loi «nonobstant tout ce qui est
contenu…dans toute loi du Parle-
[Page 520]
ment du Canada». Il n’y a aucune règle qui
permette d’ajouter après les mots «Canada» les mots «excepté la Loi sur la
Convention concernant les oiseaux migrateurs».
Les Juges
Ritchie, Hall et Spence, dissidents: Dans le para. 13 de la
convention, les mots «que la province leur assure par les présentes» n’ont pas
l’effet de limiter aux seuls droits provinciaux les droits qui y sont accordés
aux Indiens, mais au contraire constituent une garantie additionnelle des
droits généraux décrits dans ce paragraphe.
Vu les termes de l’art. 1 de l’Acte de
l’Amérique du Nord britannique, 1930, donnant à la convention force de loi
«nonobstant tout ce qui est contenu…dans toute loi du Parlement du Canada», la
convention a priorité sur la Loi sur la Convention concernant les oiseaux
migrateurs et les règlements établis en vertu d’icelle. Il en résulte que
cette législation ne s’applique pas aux Indiens du Manitoba lorsqu’ils chassent
pour se nourrir les oiseaux migrateurs dans les endroits spécifiés au
para. 13.
APPEL d’un jugement de la Cour d’appel du
Manitoba1, rétablissant une déclaration de culpabilité. Appel
rejeté, le Juge en Chef Cartwright et les Juges Ritchie, Hall et Spence étant
dissidents.
APPEAL from a judgment of the Court of Appeal
of Manitoba, restoring the
appellant’s conviction. Appeal dismissed, Cartwright C.J. and Ritchie, Hall and
Spence JJ. dissenting.
William R. Martin, for the appellant.
D.H. Christie, Q.C., for the respondents.
THE CHIEF JUSTICE (dissenting):—The
question to be determined on this appeal, the relevant facts (all of which are
undisputed) and the historical background in the light of which the controversy
must be considered are set out in the reasons of other members of the Court.
That the problem is not free from difficulty is
attested by the differences of opinion in the Courts below and in this Court.
Since the decisions of this Court in Sikyea
v. The Queen and The
Queen v. George, it
must be accepted
[Page 521]
that, if it were not for the provisions
contained in section 13 of the agreement between the Government of Canada
and the Government of Manitoba which was approved and given the force of law by
Statutes of the Imperial Parliament, the Parliament of Canada and the
Legislature of Manitoba, the conviction of the appellant would have to be
upheld.
Nothing would be gained by my repeating the
reasons which I gave in George’s case for thinking that both it and Sikyea’s
case should have been decided differently. I accept those decisions.
The first question before us is as to the
meaning of the words used in section 13 of the agreement and particularly
the following:
…provided, however, that the said Indians
shall have the right, which the Province hereby assures to them, of hunting,
trapping and fishing game and fish for food at all seasons of the year on all
unoccupied Crown lands and on any other lands to which the said Indians might
have a right of access.
I share the view of my brothers Ritchie and Hall
that the words “which the Province hereby assures to them” do not cut down “the
right of hunting, trapping and fishing game and fish for food at all seasons of
the year” which in plain and unequivocal words the clause says that the Indians
shall have.
In Sikyea’s case and George’s case
the Court decided that this right, secured to the Indians by treaty, could be,
and as a matter of construction had been abrogated by the terms of the Migratory
Birds Convention Act and the Regulations made thereunder. In George’s
case the Court held that while s. 87 of the Indian Act preserved
the treaty rights of the Indians against encroachment by laws within the
competency of the Provincial Legislature it had no such effect in regard to an
Act of Parliament.
The situation in the case at bar is different.
The right of hunting, trapping and fishing given to the Indians by the words of
section 13 quoted above has been, since 1930, enshrined in an amendment to
our Constitution and given:
…the force of law notwithstanding anything
in the British North America Act, 1867, or any Act amending the same, or
any Act of the Parliament of Canada, or in any Order in Council or terms or
conditions of union made or approved under any such Act as aforesaid.
I find it impossible to uphold the conviction of
the appellant unless we are able to say that, by the application
[Page 522]
of some rule of construction, there should be
inserted in s. 1 of the British North America Act, 1930, immediately
after the words “Parliament of Canada” the words “except the Migratory Birds
Convention Act”. I know of no rule which permits us to take such a course.
I would dispose of the appeal as proposed by my
brother Hall.
The Judgment of Fauteux, Abbott, Martland and
Judson JJ. was delivered by
JUDSON J.:—The appellant is an Indian within the
meaning of para. (g) of subs. (1) of s. 2 of the Indian
Act, R.S.C. 1952, c. 149. He was convicted on December 7, 1964, of having
in his possession
Migratory Game Birds, during a time when
the capturing, killing, or taking of such birds, is prohibited, contrary to the
Regulations under the Migratory Birds Convention Act, thereby committing
an offence under Section 12(1) of the said Migratory Birds Convention Act.
On an appeal by way of trial de novo his
conviction was quashed. On a further appeal to the Court of Appeal of Manitoba, his conviction was restored and the sentence affirmed by a
majority judgment. He appeals to this Court with leave.
The issue in this appeal is whether by operation
of para. 13 of the agreement made on December 14, 1929, between the
Government of the Dominion of Canada and the Government of the Province of
Manitoba (hereinafter referred to as “the agreement”) the appellant was exempted
from compliance with the Migratory Birds Convention Act and Regulations
made thereunder bearing in mind that at the relevant time and place he was
an Indian who had hunted game for food on land to which he had a right of
access.
There can be no doubt that apart from
para. 13 of the agreement above quoted the appellant was, in the
circumstances of this case, subject to the Migratory Birds Convention Act
and Regulations. See: Sikyea v. The Queen; The Queen v. George; Sigeareak v. The Queen.
[Page 523]
Paragraph 13 of the agreement provides:
13. In order to secure to the Indians of
the Province the continuance of the supply of game and fish for their support
and subsistence, Canada agrees that the laws respecting game in force in the
Province from time to time shall apply to the Indians within the boundaries
thereof, provided, however, that the said Indians shall have the right, which
the Province hereby assures to them, of hunting, trapping and fishing game and
fish for food at all seasons of the year on all unoccupied Crown lands and on
any other lands to which the said Indians may have a right of access.
Paragraph 13 is part of an agreement dated December 14, 1929, between the Government of
Canada and the Government of the Province of Manitoba for the transfer to the province from the Dominion of
all ungranted Crown lands. This agreement was approved by the Manitoba
Legislature and by Parliament. (Statutes of Manitoba, 1930, c. 30; Statutes of
Canada, 1930, c. 29.) It was subsequently affirmed by the British North
America Act, 1930, 20-21 Geo. V., c. 26. Three similar agreements
involving Alberta, Saskatchewan and British
Columbia were subsequently affirmed.
Section 1 of the British North America Act 1930
provides:
1. The agreements set out in the Schedule
to this Act are hereby confirmed and shall have the force of law
notwithstanding anything in the British North America Act, 1867, or any
Act amending the same, or any Act of the Parliament of Canada, or in any Order
in Council or terms or conditions of union made or approved under any such Act
as aforesaid.
Prior to the coming into force of the agreement,
title to all ungranted Crown lands in the Province of Manitoba was vested in the Dominion.
Briefly, the relevant history is that by the Rupert’s Land Act, 1868,
31-32 Vict., c. 105 (R.S.C. 1952, vol. VI, p. 99) provision was made for
the surrender of Rupert’s Land by the Hudson’s Bay Company and for the acceptance thereof by Her Majesty.
Section 3 of the said Act provided:
that such Surrender shall not be accepted
by Her Majesty until the Terms and Conditions upon which Rupert’s Land shall be
admitted into the said Dominion of Canada shall have been approved of by Her
Majesty, and embodied in an address to Her Majesty from both the Houses of the
Parliament of Canada in pursuance of the 146th Section of the British North
America Act 1867.
By Imperial Order in Council of June 23, 1870,
Rupert’s Land was admitted into and became part of the Dominion of Canada
effective July 15, 1870—R.S.C.
1952, vol. VI, p. 113. By operation of the Manitoba Act 1870, 33
Vict.,
[Page 524]
c. 3 (Canada), subsequently affirmed with
retrospective effect by the Parliament of the United Kingdom (B.N.A. Act,
1871, 34-35 Vict., c. 28, s. 5, R.S.C. 1952, vol. VI, p. 146),
the Province of Manitoba was carved out of Rupert’s Land and came into being on
the same date Rupert’s Land entered Confederation. By s. 30 of the Manitoba Act, 1870, all ungranted or waste lands in the Province vested in the Crown to
be administered by the Government of Canada for the purposes of the Dominion.
The Crown in right of the Dominion being the
owner of all Crown lands, including the mines and minerals therein, in the
Province of Manitoba that Province, together with Alberta and Saskatchewan, was
in a less favourable condition than the other Provinces who by operation of
s. 109 of the British North America Act, 1867, retained Crown lands
upon entering Confederation. The purpose of the agreement was to transfer these
lands to Manitoba in order that
it might be in the same position as the other provinces under s. 109 of
the British North America Act, 1867. This is apparent from the preamble
to and paragraph 1 of the agreement and from the following cases where the
matter was under consideration:
Saskatchewan Natural Resources Reference:
Reference concerning Refunds of Dues
paid to the Dominion of Canada in respect of Timber Permits in the Western Provinces;
Anthony v. Attorney General of Alberta;
Attorney General of Alberta v. Huggard Assets Limited:
Western Canadian Collieries Limited v.
Attorney General of Alberta.
The whole tenor of the agreement is that of a
conveyance of land imposing specified obligations and restrictions on the
transferee, not on the transferor. This applies, in particular, to paragraph
13, which makes provincial game laws applicable to Indians in the province
subject to the
[Page 525]
proviso contained therein. That only provincial
game laws were in the contemplation of the parties, and not federal enactments,
is underscored by the words “which the Province hereby assures to them” in
para. 13. As indicated by para. 11 of the agreement and para. 10
of the Alberta and Saskatchewan agreements, Canada, in negotiating these agreements,
was mindful of the fact it had treaty obligations with Indians on the Prairies.
These treaties, among other things, dealt with hunting by Indians on unoccupied
lands. For example, treaties 5 and 6, which cover portions of Manitoba, Saskatchewan and Alberta,
provide:
Her Majesty further agrees with Her said
Indians, that they, the said Indians, shall have right to pursue their
avocations of hunting and fishing throughout the tract surrendered as
hereinbefore described, subject to such regulations as may from time to time be
made by Her Government of Her Dominion of Canada, and saving and excepting such
tracts as may from time to time be required or taken up for settlement, mining,
lumbering or other purposes, by Her said Government of the Dominion of Canada,
or by any of the subjects thereof duly authorized therefor by the said
Government.
Treaty No. 8, which covers portions of Alberta and Saskatchewan, provides:
And Her Majesty the Queen HEREBY AGREES
with the said Indians that they shall have right to pursue their usual
vocations of hunting, trapping and fishing throughout the tract surrendered as
heretofore described, subject to such regulations as may from time to time be
made by the Government of the country, acting under the authority of Her
Majesty, and saving and excepting such tracts as may be required or taken up from
time to time for settlement, mining, lumbering, trading or other purposes.
Treaty No. 7, which covers a portion of Alberta, is to the same effect.
It being the expectation of the parties that the
agreement would be given the force of law by the Parliament of the United Kingdom (Paragraph 25) care was
taken in framing para. 13 that the Legislature of the province could not
unilaterally affect the right of Indians to hunt for food on unoccupied Crown
lands. Under the agreement this could only be done by concurrent Statutes of
the Parliament of Canada and the Legislature of the province, in accordance
with para. 24 thereof.
The majority opinion in the Manitoba Court of
Appeal held that the agreement, affirmed as it was by legislation of all
interested governments, could not be reconciled with
[Page 526]
the Migratory Birds Convention Act and
that the latter Act must prevail. The Migratory Birds Convention Act, being
of general application throughout Canada, ought not to be construed as circumscribed by the restricted
legislation that is to be found in the Manitoba Natural Resources Act . It was desirable
that a matter within the legislative responsibility of Parliament and governed
by international treaty be uniform in application throughout the country unless
specifically provided otherwise.
The dissenting opinion would have held that
para. 13 of the agreement should prevail over the Migratory Birds
Convention Act notwithstanding that such a result gives the Act a different
effect in Manitoba from that
which it has in other parts of Canada.
The Migratory Birds Convention Act was
enacted in 1917. It confirms a treaty made between Canada and the United States. The regulations under the Act go back to 1918. (P.C. 871, April
23, 1918). In my opinion, the agreement and the legislation of 1930 confirming
it did no more than impose specified obligations and restrictions upon the
transferee province. They did not repeal by implication a statute of Canada giving effect to an international
convention.
On this subject I adopt the law as stated in 36
Hals., 3rd ed., p. 465:
Repeal by implication is not favoured by
the courts for it is to be presumed that Parliament would not intend to effect
so important a matter as the repeal of a law without expressing its intention
to do so. If, however, provisions are enacted which cannot be reconciled with
those of an existing statute, the only inference possible is that Parliament,
unless it failed to address its mind to the question, intended that the
provisions of the existing statute should cease to have effect, and an
intention so evinced is as effective as one expressed in terms. The rule is,
therefore, that one provision repeals another by implication if, but only if,
it is so inconsistent with or repugnant to that other that the two are
incapable of standing together. If it is reasonably possible so to construe the
provisions as to give effect to both, that must be done; and their
reconciliation must in particular be attempted if the later statute provides
for its construction as one with the earlier, thereby indicating that
Parliament regarded them as compatible, or if the repeals expressly effected by
the later statute are so detailed that failure to include the earlier provision
amongst them must be regarded as such an indication.
I would dismiss the appeal.
[Page 527]
RITCHIE J. (dissenting):—I have had the
benefit of reading the reasons for judgment prepared by other members of the
Court in which the circumstances giving rise to this appeal are fully recited.
I agree with Mr. Justice Hall that the
words “which the Province hereby assures to them” as they occur in paragraph 13
of the agreement which is a schedule to the Manitoba Natural Resources Act , Statutes
of Canada 1930, c. 29, do not have the effect of limiting the rights thereby
accorded to Indians, to provincial rights, but rather that they constitute
additional assurance of the general rights described in the said paragraph.
Like my brother Hall, I can only read the
provisions of s. 1 of the British North America Act, 1930, as
giving the agreement “the force of law notwithstanding anything in …any Act of
the Parliament of Canada…” and I am therefore of opinion that the agreement
takes precedence over the Migratory Birds Convention Act, R.S.C. 1952,
c. 179 and the regulations made thereunder, with the result that these
enactments do not apply to Indians in Manitoba when engaged in hunting
migratory birds for food in the areas set out in section 13.
I would accordingly dispose of this matter in
the manner proposed by my brother Hall.
The judgment of Hall and Spence JJ. was
delivered by
HALL J. (dissenting):—The facts in this
appeal are not in dispute. The appellant, Paul Daniels, who is a Treaty Indian
of the Chemahawin Indian Reserve in the Province of Manitoba, was convicted by Police
Magistrate Neil McPhee, at The Pas, Manitoba, for an offence contrary to subs. (1) of s. 12 of the Migratory
Birds Convention Act, R.S.C. 1952, c. 179. The charge on which he was
convicted was that he, the said
Paul Daniels, of Chemahawin Indian Reserve,
Manitoba, on the 3rd day of July, A.D. 1964, at Chemahawin Indian Reserve,
in the Province of Manitoba, did unlawfully and without lawful excuse have in
his possession Migratory Game Birds, during a time when the capturing, killing
or taking of such birds is prohibited, contrary to the regulations under the Migratory
Birds Convention Act, thereby committing an offence under Section 12(1) of
the said Migratory Birds Convention Act.
Against the conviction the accused appealed to
the County Court by way of trial de novo. His Honour J.W. Thompson,
sitting as a judge of the County Court of Manitoba,
[Page 528]
allowed the appeal and acquitted the accused.
The Crown then took an appeal to the Court of Appeal for Manitoba which Court, Freedman J.A. dissenting, allowed the appeal and
restored the conviction. The appellant then applied for and was given leave to
appeal to this Court.
On July 3, 1964, the appellant had in his
possession two wild ducks, one described as a redhead and the other a mallard
or greenhead. At a point along the Saskatchewan River, within the Reserve, he had, on his own admission, shot and killed
the birds for food and they were being cooked over a campfire when two
constables of the R.C.M.P. entered the area. Section 6 of the Migratory
Birds Convention Act provides:
No person, without lawful excuse, the proof
whereof shall he on such person, shall buy, sell or have in his possession any
migratory game bird, migratory insectivorous bird or migratory nongame bird, or
the nest or egg of any such bird or any part of any such bird, nest or egg,
during the time when the capturing, killing or taking of such bird, nest or egg
is prohibited by this Act.
Under s. 3(b)(i) “Migratory Game
Birds” includes wild ducks. Section 12(1) of the Act provides that every
person who violates any provision of this Act or any regulation, is, for
each offence, liable upon summary conviction to a fine of not more than three
hundred dollars and not less than ten dollars, or to imprisonment for a term
not exceeding six months or to both fine and imprisonment.
Section 5(1) of the Regulations provides:
Unless otherwise permitted under these
Regulations to do so, no person shall
(a) in any area described in
Schedule A, kill, hunt, capture, injure, or take or molest a migratory bird at
any time except during an open season specified for that bird and that area in
Schedule A…
Part VII of Schedule A to the Regulations defines
the open season for ducks in Manitoba. In the area north of Parallel 53 which includes the Chemahawin
Indian Reserve, the open season is from noon September 11 to November 28,
inclusive of the closing date.
[Page 529]
It is further provided in s. 5(2) of the Regulations:
Indians and Eskimos may take auks, auklets,
guillemots, murres, puffins and scoters and their eggs at any time for human
food or clothing, but they shall not sell or trade or offer to sell or trade
birds or eggs so, taken and they shall not take such birds or eggs within a
bird sanctuary.
Unless the appellant’s status as an Indian in Manitoba permits him to hunt and possess
migratory game birds at all seasons of the year, he was properly convicted: Sikyea
v. The Queen.
The appellant claimed immunity from the
provisions of the Migratory Birds Convention Act by virtue of the Manitoba
Natural Resources Act , Statutes of Canada 1930, c. 29, which he contends
exempts him from the operations of the Migratory Birds Convention Act because
he is an Indian residing in the Province of Manitoba.
In the year 1929, some twelve years after the
enactment of the Migratory Birds Convention Act, the Government of
Canada and the Government of Manitoba reached an agreement respecting the
transfer to Manitoba of the
unalienated natural resources within the Province. The agreement was approved
by the Parliament of Canada in the Manitoba Natural Resources Act , supra, and by
the Legislature of Manitoba by the Manitoba Natural Resources Act, R.S.M.
1954, c. 180. The schedule to both statutes contains the terms of the
agreement, in which s. 13 reads as follows:
In order to secure to the Indians of the
Province the continuance of the supply of game and fish for their support and
subsistence, Canada agrees that the laws respecting game in force in the
Province from time to time shall apply to the Indians within the boundaries
thereof, provided, however, that the said Indians shall have the right, which
the Province hereby assures to them, of hunting, trapping and fishing game and
fish for food at all seasons of the year on all unoccupied Crown lands and on
any other lands to which the said Indians might have a right of access.
This section of the agreement was dealt
with by this Court in Prince and Myron v. The Queen, which held that Indians in Manitoba hunting for food on all unoccupied
Crown lands and on any other lands to which they
[Page 530]
may have rights of access were not subject to
any of the limitations which the Game and Fisheries Act of Manitoba, R.S.M. 1954, c. 94, imposes upon
the non-Indian residents of Manitoba. Section 72(1) of The Game and Fisheries Act, R.S.M. 1954,
c. 94, reads as follows:
72(1) Notwithstanding this Act, and in so
far only as is necessary to implement The Manitoba Natural Resources Act , any
Indian may hunt and take game for food for his own use at all seasons of the
year on all unoccupied Crown lands and on any other lands to which the Indian
may have the right of access.
The question which falls to be determined in
this appeal is whether the terms of the agreement between the Government of
Canada and the Government of Manitoba as ratified by Parliament and by the
Legislature of Manitoba and confirmed at Westminster in the British North
America Act 1930 take precedence over the provisions of the Migratory
Birds Convention Act and the Regulations made thereunder. If full
effect is to be given to s. 13 of the agreement in question, it must be
held that the provisions of the Migratory Birds Convention Act and the Regulations
made thereunder do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set
out in the section. On the other hand, if the provisions of the Migratory
Birds Convention Act take precedence, the right of Indians in Manitoba to hunt game for food at all
seasons of the year in accordance with said s. 13 is wiped out.
Accordingly, the decision must be made as to which legislation is paramount.
Freedman J.A., in his dissenting judgment in the
Court of Appeal, dealt with the problem as follows:
At first blush it might be thought that the
reference to Indians and their hunting rights both in the Convention and in the
regulations of the Migratory Birds Convention Act—under which they are
permitted to hunt scoters, auks, auklets, etc.—settles the matter. Obviously
such rights are far smaller than the unrestricted right to hunt all game for
food, which is provided by Sec. 13 of “The Manitoba Natural Resources Act ”. The reference
to Indians in the Convention and in the regulations is in general terms, no
exception being made with regard to Indians of Manitoba or elsewhere. It might
accordingly be plausibly argued that the Indians in Manitoba have only such rights with respect to migratory birds as are
conferred by the Migratory Birds Convention Act. But this is not
necessarily so. We must remember that when the Convention of 1917 was entered
into, the agreement relating to the transfer of Manitoba’s natural resources was not yet in existence nor even in
contemplation. Hence no exception with regard to Manitoba Indians could have
been expected in the Convention. As for the regulations of 1958, it is true
that they were enacted subsequent to The Manitoba Natural Resources Act and
that they contain no exception in favour of Indians of Manitoba. But the
[Page 531]
regulations could not enlarge or go beyond
the provisions of the statute pursuant to which they were enacted. Rather they
would conform to the terms of that statute; so no such exception would be
expected in the regulations either.
The parallel argument on the other side
appears to me to be far more cogent. The terms of Sec. 13 contained in The
Manitoba Natural Resources Act are comprehensive and permit the hunting by
Indians of game for food at all seasons of the year. No exception is made with
respect to migratory birds, even though the Migratory Birds Convention Act had
been on the statute books since 1917. Instead of making the provisions of Sec.
13 subject to the terms of the Migratory Birds Convention Act, the
legislators did quite the opposite. They enshrined the agreement within the
Canadian constitutional framework by having it confirmed at Westminster in the British North America Act, 1930, and declared it should have the force of law “notwithstanding
anything in… any Act of the Parliament of Canada”. I believe it should be given
that force and not be read as subject to the provisions of the Migratory
Birds Convention Act.
I am conscious of the fact that this
conclusion will give to the Migratory Birds Convention Act a different
effect in Manitoba (and incidentally in Saskatchewan and Alberta, which have
similar provisions to Sec. 13 ) from that which it has in other parts of Canada.
The decision of the Supreme Court of Canada in Reg. vs. Sikyea, (1964)
S.C.R. 642, upheld the application of the Migratory Birds Convention Act to
an Indian of the Northwest Territories notwithstanding hunting rights contained in treaties. The decision
of that Court in The Queen vs. George, (1966) 55 D.L.R. (2d) 386, came
to the same conclusion as regards an Indian in Ontario. In neither case, of course, did Sec. 13 of The Manitoba Natural
Resources Act apply. If the application of Sec. 13 gives to the Migratory
Birds Convention Act a disparate result in different parts of Canada, that
is simply an unfortunate but inevitable consequence of the conflicting
legislation on the subject.
I am in full agreement with Freedman J.A. and
the fact that the conclusion arrived at by him gives the Indians of Manitoba,
Saskatchewan and Alberta a latitude while hunting for food on unoccupied crown
lands and on other lands to which Indians might have a right of access greater
than that possessed by other Indians in Canada is not of itself a reason for
putting a strained interpretation on said s. 13 or for failing to give
effect to the very plain language in the British North America Act 1930.
The lamentable history of Canada’s dealings with Indians in disregard of
treaties made with them as spelt out in the judgment of Johnson J.A. in Regina
v. Sikyea and
by McGillivray J.A. in Rex v. Wesley
ought in justice to allow the Indians to get the benefit of an unambiguous law
which for
[Page 532]
once appears to give them what the treaties and
the Commissioners who were sent to negotiate those treaties promised.
I said at p. 646 of my reasons in Sikyea
which were concurred in by the six other members of this Court who heard
the appeal:
On the substantive question involved, I
agree with the reasons for judgment and with the conclusions of Johnson J.A. in
the Court of Appeal, (1964) 2 C.C.C. 325, 43 C.R. 83, 46 W.W.R. 65. He has
dealt with the important issues fully and correctly in their historical and
legal settings, and there is nothing which I can usefully add to what he has
written.
It should be noted that in Sikyea the British
North America Act 1930 had no application because the offence there being
dealt with had occurred in the Northwest Territories, an area wholly within the legislative jurisdiction of the
Parliament of Canada. Parliament has the power to breach the Indian treaties if
it so wills: Regina
v. Sikyea, supra. That point is dealt with by
Johnson J.A. at p. 330 as follows:
Discussing the nature of the rights which
the Indians obtained under the treaties, Lord Watson, speaking for the Judicial
Committee in A.-G. Can. v. A.-G. Ont., A.-G. Que. v. A.-G. Ont., (1897) A.C. 199 at p. 213, said:
“Their Lordships have had no difficulty in
coming to the conclusion that, under the treaties, the Indians obtained no
right to their annuities, whether original or augmented beyond a promise and
agreement, which was nothing more than a personal obligation by its governor,
as representing the old province, that the latter should pay the annuities as
and when they became due…”
While this refers only to the annuities
payable under the treaties, it is difficult to see that the other covenants in
the treaties, including the one we are here concerned with, can stand on any
higher footing. It is always to be kept in mind that the Indians surrendered
their rights in the territory in exchange for these promises. This “promise and
agreement”, like any other, can, of course, be breached, and there is no law of
which I am aware that would prevent Parliament by legislation, properly within
s. 91 of the B.N.A. Act, from doing so.
However, parliament cannot legislate in
contravention of the British North America Act and that is why the British
North America Act 1930 is decisive in this case.
A reading of Johnson J.A.’s historical review in
Sikyea, particularly at pp. 335-6, where he said:
It is, I think, clear that the rights given
to the Indians by their treaties as they apply to migratory birds have been
taken away by this Act and its Regulations. How are we to explain this apparent
breach of faith on the part of the Government, for I cannot think it can be
[Page 533]
described in any other terms? This cannot
be described as a minor or insignificant curtailment of these treaty rights,
for game birds have always been a most plentiful, a most reliable and a readily
obtainable food in large areas of Canada. I cannot believe that the Government of Canada realized that in
implementing the Convention they were at the same time 1 breaching the treaties
that they had made with the Indians. It is much more likely that these
obligations under the treaties were overlooked—a case of the left hand having
forgotten what the right hand had done. The subsequent history of the Government’s
dealing with the Indians would seem to bear this out. When the treaty we are
concerned with here was signed in 1921, only five years after the enactment of
the Migratory Birds Convention Act, we find the Commissioners who
negotiated the treaty reporting:
“The Indians seemed afraid, for one thing,
that their liberty to hunt, trap and fish would be taken away or curtailed, but
were assured by me that this would not be the case, and the Government will
expect them to support themselves in their own way, and, in fact, that more
twine for nets and more ammunition were given under the terms of this treaty
than under any of the preceding ones; this went a long way to calm their fears.
I also pointed out that any game laws made were to their advantage, and,
whether they took treaty or not, they were subject to the laws of the
Dominion.”
and there is nothing in this report which
would indicate that the Indians were told that their right to shoot migratory
birds had already been taken away from them. I have referred to Art. 12 of the
agreement between the Government of Canada and the Province of Alberta signed in 1930 by which that Province was required to
assure to the Indians the right of “hunting, trapping and fishing game and fish
for food at all seasons of the year on all unoccupied Crown lands”. (The
amendment to the B.N.A. Act (1930 (U.K.), c. 26) that confirmed this
agreement, declared that it should “have the force of law notwithstanding
anything in the British North America Act… or any Act of the Parliament of
Canada…”) It is of some importance that while the Indians in the Northwest Territories continued to shoot
ducks at all seasons for food, it is only recently that any attempt has been
made to enforce the Act.
confirms what I said in Sikyea and I am
fortified in that view by the judgment of McGillivray J.A. in R. v. Wesley, particularly
at pp. 283-4 where, in dealing with s. 12 of the Alberta agreement,
identical in effect with s. 13 of the Manitoba agreement, he said:
In Canada the Indian treaties appear to have been judicially interpreted as
being mere promises and agreements. See A.-G. Can. v. A.-G. Ont. (Indian Annuities case), (1897) A.C. 199, at p. 213.
Assuming as I do that our treaties with
Indians are on no higher plane than other formal agreements yet this in no wise
makes it less the duty and obligation of the Crown to carry out the promises
contained in those treaties with the exactness which honour and good conscience
dictate and it is not to be thought that the Crown has departed from those
equitable principles which the Senate and the House of Commons declared in
addressing Her Majesty in 1867, uniformly governed the British Crown in its
dealings with the aborigines.
At the time of the making of this Indian
Treaty it was of first class importance to Canada that the Indians who had become restless after the
[Page 534]
sway of the Hudson’s Bay Co. had come to an
end, should become content and that such title or interest in land as they had
should be peacefully surrendered to permit of settlement without hindrance of
any kind. On the other hand it goes without saying that the Indians were
greatly concerned with “their vocations of hunting” upon which they depended
for their living.
In this connection it is of historical
interest although of no assistance in the interpretation of the treaty, that
Governor Laird who with Colonel Macleod negotiated this treaty, said to the
Chiefs of the Indian tribes:—
“I expect to listen to what you have to say
today, but first, I would explain that it is your privilege to hunt all over
the prairies, and that should you desire to sell any portion of your land, or
any coal or timber from off your reserves, the Government will see that you
receive just and fair prices, and that you can rely on all the Queen’s promises
being fulfilled.”
And again he said:—“The reserve will be
given to you without depriving you of the privilege to hunt over the plains
until the land be taken up.”
It is true that Government regulations in
respect of hunting are contemplated in the Treaty but considering that Treaty
in its proper setting I do not think that any of the makers of it could by any
stretch of the imagination be deemed to have contemplated a day when the
Indians would be deprived of an unfettered right to hunt game of all kinds for
food on unoccupied Crown land.
In the case A.-G. v. Metropolitan
Electric Supply Co., 74 L.J. Ch. 145, at p. 150, Farwell J.,
said:—
“I think it is germane to the subject to
consider what the Legislature had in view in making the provisions which I find
in the Act of Parliament itself. As Lord Halsbury said in Eastman
Photographic Materials Co. v. Comptroller General of Patents, Designs, and
Trade Marks, (1898) (A.C. 571) referring to Heydon’s Case (1584), (3
Co. Rep. 7a) ‘We are to see what was the law before the Act was passed, and
what was the mischief or defect for which the law had not provided, what remedy
Parliament appointed, and the reason of the remedy.’ That is a very general way
of stating it, but no doubt one is entitled to put one’s self in the position
in which the Legislature was at the time the Act was passed in order to see
what was the state of knowledge as far as all the circumstances brought before
the Legislature are concerned, for the purpose of seeing what it was the
Legislature was aiming at.”
If as Crown counsel contends, s. 12
taken as a whole gives rise to apparent inconsistency and is capable of two
meanings then I still have no hesitation in saying in the light of all the
external circumstances relative to Indian rights in this Dominion to which I
have alluded, that the law makers in 1930 were in the making of this proviso,
aiming at assuring to the Indians covered by the section, an unrestricted right
to hunt for food in those unsettled places where game may be found, described
in s. 12.
It was argued that para. 13 of the
agreement in question is limited in its application solely to provincial laws
because of the presence of the clause “which the Province hereby assures to
them”, in the sentence under consideration. That clause inserted
parenthetically between commas
[Page 535]
cannot derogate from the thrust of the principal
clause which contains the specific declaration “that the said Indians shall
have the right,…of hunting, trapping and • fishing game and fish for food at all
seasons of the year”. In my view it adds emphasis to the declaration by making
manifest the application of the declaration to the Province as though the
clause read “which the Province also hereby assures to them”.
If all that s. 13 of the agreement was
intended to achieve in 1930 was a declaration by the Province that Indians were
to have the right to fish, hunt and trap for food at all seasons of the year,
it was, according to that interpretation, an empty, futile and misleading
gesture. Either the Indians then had those rights or they did not have them for
the Migratory Birds Convention Act had been on the statute books since
1917. The only interpretation that makes sense is the one that acknowledges
that the right of hunting, trapping and fishing game and fish for food at all
seasons of the year existed in 1930 regardless of the Migratory Birds
Convention Act and the Federal Government wanted those rights to continue
notwithstanding the transfer to the Provinces of Manitoba, Saskatchewan and
Alberta of the unalienated natural resources withheld when the Provinces were
formed. What logic could there have been in having the Provinces assure to
Indians non-existing rights?
The Federal authority was already under treaty
obligation contained in Treaties 5 and 6 which read:
Her Majesty further agrees with Her said
Indians, that they, the said Indians, shall have right to pursue their
avocations of hunting and fishing throughout the tract surrendered as
hereinbefore described, subject to such regulations as may from time to time be
made by Her Government of Her Dominion of Canada, and saving and excepting such
tracts as may from time to time be required or taken up for settlement, mining,
lumbering or other purposes, by Her said Government of the Dominion of Canada,
or by any of the subjects thereof duly authorized therefor by the said
Government.
to preserve the Indians’ right to hunt and fish
for food at all seasons of the year, and it was merely making certain that the
Provinces would accord the same rights when they got control of the unalienated
Crown lands. The obligation of Canada to preserve the right to hunt and fish for food at all seasons was
an historical one arising out of the rights of Indians as original inhabitants
of the territories from
[Page 536]
which Manitoba, Saskatchewan and Alberta were carved and arising out of the
treaties above mentioned. The subject of aboriginal rights as they apply to
Indians of Western Canada and the effect of the treaties made with the Indians
were dealt with by the Court of Appeal for British
Columbia in Regina v. White and Bob. This Court upheld that decision in an
oral judgment as
follows:
Mr. Justice Cartwright delivered the
following oral judgment:
“Mr. Berger, Mr. Sanders and
Mr. Christie. We do not find it necessary to hear you. We are all of the
opinion that the majority in the Court of appeal were right in their conclusion
that the document, Exhibit 8, was a ‘treaty’ within the meaning of that term as
used in s. 87 of the Indian Act (R.S.C. 1952, c. 149). We therefore
think that in the circumstances of the case, the operation of s. 25 of the
Game Act (R.S.B.C. 1960, c. 160) was excluded by reason of the existence
of that treaty.”
It follows that if Exhibit 8 in White and Bob
which reads:
Know all men that we the Chiefs and people
of the Sanitch Tribe who have signed our names and made our marks to this Deed,
on the 6th day of February 1852 do consent to surrender entirely and forever,
to James Douglas the Agent of the Hudsons Bay Company, in Vancouver Island that
is to say for the Governor Deputy Governor and Committee of the same, the whole
of the lands situate and lying between Mount Douglas and Cowitchen Head on the
Canal de Arro and extending thence to the line running through the centre of
Vancouver Island north and south.
The condition of, or understanding of this
sale, is this, that our village sites and enclosed fields, are to be kept for
our own use, for the use of our children, and for those who may follow after
us, and the lands shall be properly surveyed hereafter; it is understood
however, that the land itself with these small exceptions, becomes the entire
property of the white people forewer; it is also understood that we are at
liberty to hunt over the unoccupied lands, and to carry on our fisheries as
formerly. We have received as payment—Forty one pounds thirteen shillings
and four pence.—In token whereof we have signed our names, and made our marks
at Fort Victoria, on the seventh day of February, One thousand eight hundred
and fifty two.
(Emphasis added.)
was a treaty within s. 87 of the Indian
Act, R.S.C. 1952, c. 149, so are Treaties 5 and 6 aforesaid.
Soon after the agreement in question was entered
into, the Court of Appeal for Saskatchewan in Rex v. Smith,
[Page 537]
dealt with the effect of s. 12 of the Saskatchewan agreement which is identical
with s. 13 now under review and in that case Turgeon J.A. (later C.J.S.)
said:
Although this case is of great interest and
importance I do not think it will be necessary in disposing of it to examine
minutely the state of the law existing prior to recent date, nor the Indian
treaty or treaties referred to in the argument. If these treaties, or the
various Dominion or provincial statutes referred to have any present bearing on
the case it is only in so far as they may throw some light upon the
interpretation of certain words in the instrument which, in my opinion, now
governs the relations of these Indians with the game laws of Saskatchewan, and
to which I am about to refer.
The 24th enumeration of sec. 91 of the
British North America Act, 1867, ch. 3, confers upon the parliament of
Canada exclusive jurisdiction upon the subject of “Indians and Lands Reserved
for the Indians,” while, on the other hand, the provinces have power to make
laws concerning the hunting, fishing, preservation, etc. of game in the
province. As a result, controversies have arisen in the past as to the
application of provincial game laws to Indians: Rex v. Rodgers (1923) 2
W.W.R. 353, 33 Man. R. 139, 40
C.C.C. 51.
But in the years 1929 and 1930 something
occurred which, in my opinion, had the effect of recasting the jurisdiction of
the province of Saskatchewan in respect to the operation of its game laws upon our Indian
population. In December, 1929, an agreement was entered into between the
Dominion and the province having for its primary object the transfer from the
one to the other of the natural resources within the province. This transfer
was accompanied by many terms, some of which had to do with matters pertaining
to the Indians. Among these is par. 12 of the agreement, which reads as follows
(L.R. 1929-30, p. 293):
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.
It is admitted in this case that the
accused was hunting for food.
This agreement between the Dominion and the
province was made “subject to its being approved by the Parliament of Canada
and the Legislature of the Province” and also to confirmation by the Parliament
of the United Kingdom.
Ratification by the Imperial Parliament was necessary in so far at least as the
agreement purported to make any change in the constitutional powers of the
Dominion or of the province. In a recent decision of this Court, Rex v.
Zaslavsky, ante p. 34, the learned Chief Justice quoted from the remarks of
Lord Watson in the course of the argument in C.P.R. v. Notre Dame de
Bonsecours Parish (1899) A.C. 367, 68 L.J.P.C. 54. The statement quoted by
the learned Chief Justice may fittingly be repeated here:
The Dominion cannot give jurisdiction or
leave jurisdiction with the province. The provincial Parliament cannot give
legislative jurisdiction to the Dominion Parliament. If they have it, either
one or the
[Page 538]
other of them, they have it by virtue of
the Act of 1867. I think we must get rid of the idea that either one or other
can enlarge the jurisdiction of the other or surrender jurisdiction.
Consequently no legislative jurisdiction
can be taken from the Dominion Parliament and bestowed upon a provincial
Legislature, or vice versa, without the intervention of the parliament
of the United Kingdom.
The Imperial statute confirming the
agreement is 1930, 20 & 21 Geo. V., ch. 26, sec. 1 of which
enacts that the agreement shall have the force of law “notwithstanding anything
in the British North America Act of 1867 or any Act amending the same,”
etc. It follows therefore that, whatever the situation may have been in earlier
years the extent to which Indians are now exempted from the operation of the
game laws of Saskatchewan is to
be determined by an interpretation of par. 12, supra, given force of law
by this Imperial statute. This paragraph says that the Indians are to have the
right to hunt, trap and fish for food in all seasons “on all unoccupied Crown
lands and on any other lands to which the said Indians may have a right of
access”.
For the purposes of the present inquiry
we can confine ourselves to Crown lands (excluding lands owned by individuals
as to which some other question might arise) because this game preserve is
Crown land. The question then is (1) is it unoccupied Crown land, or (2) is it
occupied Crown land to which the Indians have a right of access? If it is
either of these no offence was committed by the accused.
(Emphasis added.)
Counsel for the accused, in proposing a
test for the meaning which must be given to the word “occupied” and
“unoccupied” referred to the treaty made between the Crown and certain tribes
of Indians near Carlton, on August 23, 1876, whereby, on the one hand, these
Indians consented to the surrender of their title of whatsoever nature in an
area of which this game preserve forms part and, on the other hand, the Crown
undertook certain obligations towards them and assured them certain rights and
privileges. 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.)
I have already dealt with the meaning of
s. 13 of the Manitoba
agreement. To me it is clear and unambiguous and by s. 1 of the British
North America Act 1930 which reads:
1. The agreements set out in the Schedule
to this Act are hereby confirmed and shall have the force of law
notwithstanding anything in the British North America Act, 1867, or any
Act amending the same, or any Act of the Parliament of Canada, or in any Order
in Council or terms or conditions of union made or approved under any such Act
as aforesaid.
has the force of law, notwithstanding “any Act
of the Parliament of Canada”. The Migratory Birds Convention Act is an
Act of the Parliament of Canada. One would suppose that that should end the
matter, but it is urged
[Page 539]
that s. 1 of the British North America
Act 1930 does not necessarily refer to every provision of the agreement
and, in particular, that s. 13 is outside the plain and unambiguous
language of the Act in that Ottawa and Westminster
could not conceivably have intended s. 13 to take precedence over the Migratory
Birds Convention Act of 1917. One should, I think, be slow to accept the
argument that the negotiators of the Manitoba agreement and Parliament at Ottawa were in 1929 and 1930 totally forgetful of the existence of the Migratory
Birds Convention Act of 1917. Rather is it not more logical that knowing of
the solemnity with which the Indian treaties had been negotiated and how highly
they were regarded by the Indians, neither the negotiators of the agreement nor
the Government at Ottawa had
the slightest intention of breaching those treaties.
If it had been intended that the Migratory
Birds Convention Act should take precedence, it would have been a simple
matter to have said so in the agreement or in the Manitoba Natural Resources Act . Much would have
to be read into s. 13 of the agreement to make it subject to the Migratory
Birds Convention Act. I am not prepared to add exclusions which Parliament
and Westminster did not see fit
to do.
It is argued that this is a case for the
application of the rule of construction that Parliament is not presumed to
legislate in breach of a treaty or in any manner inconsistent with the comity
of nations and the established rules of international law. The rule does not,
of course, come into operation if a statute is unambiguous for in that event
its provisions must be followed even if they are contrary to the established
rules of international law. The case of Inland Revenue Commissioners v.
Collco Dealings Ltd. is a
case in which this very argument was made. In that case the Court was being
asked to read into a section of the Income Tax Act 1952 additional
words which would enlarge the meaning of the section so as to include
persons not included by the precise words of the enactment but which were
included under an agreement between the British Government and the Republic of
Ireland providing for exemption
[Page 540]
from tax where the claimant was a resident in the
Republic of Ireland and was not
a resident in the United Kingdom.
In dealing with the argument, Viscount Simonds
said at pp. 18 and 19:
It has been urged that the general words of
the subsection should be so construed as not to have the effect of imposing
or appearing to impose the will of Parliament upon persons not within its
jurisdiction. This argument, which had influenced the special commissioners,
was not advanced before this House. A somewhat similar argument was, however,
pressed upon your Lordships and was perhaps more strongly than any other relied
on by the appellant company. It was to the effect that to apply
section 4(2) to the appellant company would create a breach of the 1926
and following agreements, and would be inconsistent with the comity of nations
and the established rules of international law: the subsection must,
accordingly, be so construed as to avoid this result.
My Lords, the language that I have used is
taken from a passage at p. 148 of the 10th edition of “Maxwell on the
Interpretation of Statutes” which ends with the sentence: “But if the statute
is unambiguous, its provisions must be followed even if they are contrary to
international law.” It would not, I think, be possible to state in clearer
language and with less ambiguity the determination of the legislature to put an
end in all and every case to a practice which was a gross misuse of a
concession. What, after all, is involved in the argument of the appellant? It
is nothing else than that, when Parliament said “under any enactment,” it meant
“any enactment except…” But it was not found easy to state precisely the terms
of the exception. The best that I could get was “except an enactment which is
part of a reciprocal arrangement with a sovereign foreign state.” It is said that
the plain words of the statute are to be disregarded and these words
arbitrarily inserted in order to observe the comity of nations and the
established rules of international law. I am not sure upon which of these
high-sounding phrases the appellant company chiefly relies. But I would answer
that neither comity nor rule of international law can be invoked to prevent a
sovereign state from taking what steps it thinks fit to protect its own revenue
laws from gross abuse, or to save its own citizens from unjust discrimination
in favour of foreigners. To demand that the plain words of the statute should
be disregarded in order to do that very thing is an extravagance to which this
House will not, I hope, give ear.
I would paraphrase the latter part of this statement
as follows in applying it to the Indians of Manitoba, Saskatchewan and Alberta
by saying: But I would answer that neither comity nor rule of international
law can be invoked to prevent a sovereign state (Canada) from taking what steps
it thinks fit to protect its own aboriginal population (Indians) from being
deprived of their ancient rights to hunt and to fish for food assured to them
in Treaties 5 and 6 made with them.
It took those steps when it included s. 13
of the Manitoba agreement,
confirmed by the Manitoba Natural Re-
[Page 541]
sources Act and
petitioned Parliament at Westminster to enact s. 1 of the British North America Act 1930. If
there is inconsistency or repugnancy between the Migratory Birds Convention
Act and the Manitoba Natural Resources Act the later prevails over
the earlier; British Columbia Railway Co. v. Stewart and Summers v. Holborn District Board
of Works. It
is difficult, I think, to find language more forthright and less ambiguous than
s. 1 of the British North America Act 1930. To repeat, it reads:
1. The agreements set out in the Schedule
to this Act are hereby confirmed and shall have the force of law
notwithstanding anything in the British North America Act, 1867, or any
Act amending the same, or any Act of the Parliament of Canada, or in any Order
in Council or terms or conditions of union made or approved under any such Act
as aforesaid.
I would, accordingly, allow the appeal and quash
the conviction. The appellant is entitled to his costs in this Court and in the
Courts below.
PIGEON J.:—The facts are summarized in the
reasons of my brother Judson with whom I am in agreement.
I wish to add that, in my view, this is a case
for the application of the rule of construction that Parliament is not presumed
to legislate in breach of a treaty or in any manner inconsistent with the
comity of nations and the established rules of international law. It is a rule
that is not often applied, because if a statute is unambiguous, its provisions
must be followed even if they are contrary to international law, as was said
recently in Inland Revenue Commissioners v. Collco Dealings Ltd., where all relevant authorities are
reviewed. In that case, the House of Lords came to the conclusion that the
intent of Parliament was clear and unmistakable and, therefore, the plain words
of a statute could not be disregarded in order to observe the comity of nations
and the established rules of international law. However, the principle of
construction was recognized as applicable in a proper case.
Here we must not be misled by the clear and
unambiguous provision of section 1 of the British North America Act 1930
into believing that, because it is there said that
[Page 542]
the agreement shall have the force of law
notwithstanding any act of the Parliament of Canada, every provision of the
agreement was intended to override all federal legislation.
The question to be decided is whether in par. 13
of the agreement, the words “Canada agrees that the laws respecting game in force in the Province from
time to time shall apply to the Indians within the boundaries thereof”
contemplate laws of Canada as
well as laws of Manitoba. The
language certainly is not that which one would normally use in referring to
both classes of laws. It is rather the language one would be expected to use in
a provision intended to subject the Indians to provincial game laws. This is
further borne out by the fact that the proviso on which this appeal is based is
in a form of an assurance by the province only. Can it be said that where
Canada stipulates in the agreement: “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…” the intention was
expressed in clear language and without ambiguity to amend the Migratory
Birds Convention Act contrary to Canada’s international obligations? In my
view, the least that can be said is that the intention to derogate from the
statute implementing the treaty is not clearly expressed. It is perfectly
possible without doing violence to the language used to construe the provision
under consideration as applicable solely to provincial laws and thus to avoid
any conflict.
It must also be considered that an agreement is
not to be construed as applying to anything beyond its stated scope unless the
intention to do so is unmistakable. Here the purpose of the agreement is stated
in its preamble to be that the Province be placed in a position of equality
with the other provinces with respect to the administration and control of its
natural resources. It is quite consistent with this declared object to provide
that provincial laws respecting the use of some resources, namely fish and
game, shall apply to Indians subject to a restriction the effect of which is to
carry out Canada’s treaty obligations towards the Indians in that respect. On
the other hand, it would not only be foreign to this object but even
inconsistent with it, to provide for an implied modification of the Migratory
Birds Convention Act. The result would be to
[Page 543]
enact a provision having no relation with the
stated purpose of the agreement and also to create a lack of uniformity by
establishing in favour of the Indians in one province an exception that does
not exist in favour of the Indians in other provinces.
In Danby v. Coutts & Co., it was held that a power of
attorney granted in general terms for the purpose stated in the recitals, to
act for the grantor during his absence from England, must be construed as limited to the duration of such absence.
Concerning statutes, Maxwell says (The Interpretation of Statutes, 11th ed.,
p. 79): “General words and phrases, therefore, however wide and
comprehensive they may be in their literal sense, must, usually, be construed
as being limited to the actual objects of the Act.” and he adds quoting Lord
Halsbury in Leach v. Rex, “It
would be ‘perfectly monstrous’ to construe the general words of the Act so as
to alter the previous policy of the law.”
Appeal dismissed, CARTWRIGHT C.J. and RITCHIE, HALL and
SPENCE JJ. dissenting.
Solicitor for the appellant: W.R. Martin,
The Pas.
Solicitor for the respondents: D.S.
Maxwell, Ottawa.
Email this Content