Frank v. The Queen, [1978] 1 SCR 95

Supreme Court of Canada

Frank v. The Queen, [1978] 1 S.C.R. 95

Date: 1977-05-31

Alex Frank Appellant;

and

Her Majesty The Queen Respondent.

1977: May 10; 1977: May 31.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Indians—Treaty Indian resident in Saskatchewan—Right to kill midlife for food in Alberta—The Wildlife Act, R.S.A. 1970, c. 391, s. 16—Alberta Natural Resources Transfer Agreement, 1930, para. 12—Indian Act, R.S.C. 1970, c. I-6, s. 88.

The appellant, a treaty Indian resident in Saskatchewan, was found in possession of a moose, which he had hunted and killed for food in Alberta. He was charged with unlawfully having in his possession moose meat contrary to s. 16 of the Wildlife Act, R.S.A. 1970, c. 391. The charge was dismissed by the Provincial Court judge. On an appeal by the Crown by stated case, the Supreme Court of Alberta, Appellate Division, directed that a conviction be recorded. An appeal by the accused was then brought to this Court.

The appellant was hunting on Treaty No. 6 lands. This treaty was concluded in 1876 between the Queen and various tribes of Indians inhabiting the area. The tract covers roughly the central one third of the present Provinces of Alberta and Saskatchewan. The treaty secured to the Indians the right to pursue their avocations of hunting and fishing subject to any regulations made by the Government of Canada.

The Alberta Natural Resources Transfer Agreement (approved by 1930 (Can.), c. 3, and 1930 (Alta.), c. 21, and thereafter confirmed by the British North America Act, 1930 (U.K.) c. 26) transferred from Canada to Alberta the interest of the Crown in all Crown lands, mines and minerals within Alberta. Paragraph 12 of this Agreement provides that “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

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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.”

Held: The appeal should be allowed and the verdict of acquittal restored.

The effect of s. 88 of the Indian Act, R.S.C. 1970, c. I-6, is to make applicable to Indians, except as stated, all laws of general application from time to time in force in any province, including provincial game laws, but subject to the terms of any treaty and subject also to any other act of the Parliament of Canada. Thus, the appellant is protected from the application of the Wildlife Act of Alberta to the extent that he can call in aid Treaty No. 6 and para. 12 of the Alberta Natural Resources Transfer Agreement. The essential differences, for present purposes, between the Treaty and the Agreement are (i) under the former the hunting rights were at large while under the latter the right is limited to hunting for food and (ii) under the former the rights were limited to about one-third of the Province of Alberta, while under the latter they extend to the entire province. In the present case these differences were unimportant because the appellant was hunting for food and upon land touched by both Treaty and Agreement.

The phrases “Indians of the Province” and “Indians within the boundaries thereof” in para. 12 of the Agreement do not refer to the same group. The use of different language suggests different groups. “Indians of the Province” means Alberta Indians. The words “Indians within the boundaries”, on the other hand, refer to a larger group, namely, Indians who, at any particular moment, happen to be found within the boundaries of the Province of Alberta, irrespective of normal residence. All persons forming part of this latter group are subject to the game laws in force at any given time in that Province but with the right of hunting, trapping and fishing game and fish for food at all seasons of the year on unoccupied Crown lands and on any other lands to which the Indians may have a right of access. The words “Indians within the boundaries” mean all Indians within the boundaries of Alberta, and not just some of the Indians within such boundaries.

Shepherd’s Trustees v. Shepherd, [1945] S.C. 60, applied; R. v. Wesley, [1932] 2 W.W.R. 337; R. v. Smith, [1935] 2 W.W.R. 433; R. v. Strongquill, [1953]

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8 W.W.R. 247; Prince and Myron v. R., [1964] S.C.R. 81, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal by the Crown by way of stated case from the acquittal of the accused on a charge of unlawfully having in his possession moose meat contrary to s. 16 of the Wildlife Act, R.S.A. 1970, c. 391. Appeal allowed.

R.A.M. Young and J. Shaw, for the appellant.

W. Henkel, Q.C., and H. Kushner, for the respondent.

P. Burnet and J. Wyatt, for the intervenant, National Indian Brotherhood.

The judgment of the Court was delivered by

DICKSON J.—The appellant, Alex Frank, is a treaty Indian, who resides on the Little Pine Reserve, near North Battleford, in the Province of Saskatchewan. On January 13, 1974, he was found in possession of a moose, which he had hunted and killed for food the preceding day, near the Town of Nordegg, in the Province of Alberta. He was charged with unlawfully having in his possession moose meat contrary to s. 16 of The Wildlife Act of Alberta R.S.A. 1970, c. 391. The charge was dismissed by the Provincial Court judge. On an appeal by the Crown by stated case, the Supreme Court of Alberta directed that a conviction be recorded.

The appeal raises a question as to the effect of the Alberta Natural Resources Transfer Agreement, as confirmed by the British North America Act, 1930 (U.K.), c. 26, upon the right of Indians not resident in Alberta to kill wildlife for food in Alberta. The decision of the Appellate Division imposes provincial boundaries on native hunting rights; the exercise of such rights would require residency in the Province.

The appellant was hunting on Treaty No. 6 lands. This treaty was concluded in 1876 between

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the Queen and the Plain and Wood Cree Tribes of Indians and other Tribes inhabiting the area therein described. That area embraced 121,000 square miles extending from near what is now the Manitoba-Saskatchewan border on the east to the Rocky Mountains on the west. The tract covers roughly the central one-third of the present Provinces of Alberta and Saskatchewan. In consideration of the surrender to the Government of Canada of their rights, titles and privileges to the included lands the Indians inhabiting those lands were given a number of undertakings, including the following:

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;

The treaty secured to the Indians the right to pursue their avocations of hunting and fishing subject to any regulations made by the Government of Canada.

In 1905 the Provinces of Alberta and Saskatchewan were created by the Alberta Act, 1905 (Can.), c. 3, and the Saskatchewan Act 1905 (Can.), c. 42. By the Acts Crown lands continued under federal control. The right of Indians to hunt on Treaty No. 6 lands in either Province was unaffected.

On December 14, 1929, an agreement between the Government of Canada and the Government of Alberta (the Natural Resources Transfer Agreement) transferred from Canada to Alberta the interest of the Crown in all Crown lands, mines and minerals within Alberta. The agreement was approved by the Parliament of Canada (1930 (Can.), c. 3) and by the Legislature of Alberta (1930 (Alta.), c. 21) and thereafter it was confirmed by the Imperial Parliament by the British North America Act, 1930. This last Act confirmed at the same time agreements of a similar nature

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between the Government of Canada and the Governments of Manitoba, British Columbia and Saskatchewan. The Act provided that the agreements would 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.

Paragraph 12 of the Alberta Natural Resources Transfer Agreement falls to be considered in the present appeal. It reads as follows:

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 said Indians may have a right of access.

An identically worded paragraph appears in each of the agreements entered into with the Provinces of Manitoba and Saskatchewan.

In 1951, Parliament enacted s. 87 of the Indian Act (now s. 88 of R.S.C. 1970, c. I-6) which reads:

Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

The effect of this section is to make applicable to Indians, except as stated, all laws of general application from time to time in force in any province, including provincial game laws, but subject to the terms of any treaty and subject also to any other Act of the Parliament of Canada.

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Thus, the present appellant is protected from the application of the Wildlife Act of Alberta, to the extent that he can call in aid Treaty No. 6 and para. 12 of the Alberta Natural Resources Transfer Agreement. The essential differences, for present purposes, between the Treaty and the Agreement are (i) under the former the hunting rights were at large while under the latter the right is limited to hunting for food and (ii) under the former the rights were limited to about one-third of the Province of Alberta, while under the latter they extend to the entire province. In the present case these differences are unimportant because the appellant was hunting for food and upon land touched by both Treaty and Agreement. The Crown concedes that the hunt took place on land to which Indians as contemplated by para. 12 of the Agreement have right of access.

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[2]; R. v. Smith[3]; R. v. Strongquill[4].

The debate in the Courts below centred upon the interpretation of para. 12 of the Natural Resources Transfer Agreement. The Crown contended that the phrases “Indians of the Province” and “Indians within the boundaries thereof” meant one and the same thing, namely, “Indians resident in the Province,” for whom, according to the words of the paragraph, it was sought to secure “continuance of the supply of game and fish for their support and maintenance.” It was contended that the words “the said Indians” related to resident Indians only and it was to such Indians that the rights of hunting were accorded. Provincial Court Judge Shamchuk rejected that argument. He held that “Indians within the boundaries” should not be restricted to resident Alberta Indians

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but must extend to any Indian physically within the boundaries of Alberta no matter where his residence.

The Appellate Division, in reversing, held that para. 12 of the Natural Resources Transfer Agreements of Alberta and Saskatchewan did two things: (i) it enlarged the areas in which Alberta and Saskatchewan Indians could respectively hunt and fish for food; (ii) it limited their rights to hunt and fish otherwise than for food by making those rights subject to provincial game laws. I would agree that such is the effect of para. 12. See R. v. Wesley, supra, Prince and Myron v. The Queen[5].

The Appellate Division held further, however, that to open up the right to hunt and fish for food to all Indians, wherever they might normally reside, could operate to defeat the expressed purpose of the paragraph, i.e. to secure to the Indians of the Province the continuance of the supply of game and fish. Therefore the section must be read as denying the appellant the right to hunt as he did in Alberta. With respect, I find it impossible to accept such a construction. On this interpretation, para. 12 of the Agreement would have the effect of depriving the appellant of both his treaty right to hunt on Treaty No. 6 lands in Alberta and the protection of the proviso contained in the paragraph while in Alberta.

I do not think “Indians of the Province” and “Indians within the boundaries thereof” refer to the same group. The use of different language suggests different groups. In my view, “Indians of the Province” means Alberta Indians. The words, “Indians within the boundaries,” on the other hand, refer to a larger group, namely, Indians who, at any particular moment, happen to be found within the boundaries of the Province of Alberta, irrespective of normal residence. All persons forming part of this latter group are subject to the game laws in force at any given time in that

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Province but with the right of hunting, trapping and fishing game and fish for food at all seasons of the year on unoccupied Crown lands and on any other lands to which the Indians may have a right of access. The words “Indians within the boundaries” mean all Indians within the boundaries of Alberta, and not just some of the Indians within such boundaries.

One of the rules of grammar one learns at an early age is that a relative should refer to the last antecedent. Such rule, of course, must yield if the result makes nonsense but I find no such result when one relates back the relative “the said Indians” to the last antecedent “Indians within the boundaries.” There is no need to place the clause of reference out of juxtaposition by jumping over the nearest antecedent.

I think what was said by the Lord President (Normand) in Shepherd’s Trustees v. Shepherd[6], at p. 65, is apt:

In following as you read it the meaning of any document, when you come upon a word such as the “said” or “such” containing a reference to an earlier part of the document and to some person or thing already mentioned, you do not begin by re-reading the document from the beginning; you look backwards, and you take the nearest sensible antecedent as the appropriate antecedent for the word of reference. It was not denied that that was the natural and ordinary way of reading a document, whether it be a will or anything else, but there was some demur to its being called a rule of interpretation or a rule of law, and it was suggested that it might preferably be called a rule of grammar. I think the name does not matter. What matters is that we should follow, in construing the document, the ordinary natural sequence of thought which the testatrix followed in writing it and which the reader follows automatically as he reads it currently.

It seems to me that the construction I support avoids a situation in which a non-resident Indian entering Alberta would be subjected to the application of the game laws but denied the rights

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accorded by the proviso. It was also suggested during argument that if the application of the paragraph is confined to resident Indians, then non-resident treaty Indians would not be subjected thereto and would be free to exercise in Alberta the hunting privileges assured them by Treaty No. 6. This would place non-resident Indians in a more favoured position than resident Indians, the activities of the latter being confined to hunting for food.

I do not believe that para. 12 was ever intended to place Indians resident in Alberta in a position of advantage, or of disadvantage, vis-à-vis Indians normally resident elsewhere, or to fragment treaty areas by provincial boundaries. Nothing but the most compelling language would justify such a construction. It is perhaps of interest that of the eleven numbered treaties which were entered into by the Government of Canada with the Indians, virtually all cross provincial boundaries.

I would allow the appeal, set aside the judgment of the Appellate Division of the Supreme Court of Alberta, and restore the verdict of acquittal on the charge brought against the appellant.

Appeal allowed.

Solicitors for the appellant: Walsh & Co., Calgary.

Solicitor for the respondent: Attorney General of Alberta.

Solicitors for the intervenant, National Indian Brotherhood: Wyatt, Menczer & Burnet, Ottawa.