Elk v. The Queen, [1980] 2 SCR 166

Supreme Court of Canada

Elk v. The Queen, [1980] 2 S.C.R. 166

Date: 1980-06-17

Elman Richard Elk Appellant;

and

Her Majesty The Queen Respondent;

and

The Attorney General of Canada Intervener.

1980: March 25; 1980: June 17.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law—Indian fishing rights—Agreement between federal and provincial governments giving Indians the right to fish year round—Whether agreement applying to federal legislation—Fisheries Act, R.S.C. 1970, c. F-14—Manitoba Natural Resources Act, 1930 (Man.), c. 30, para. 13—British North America Act, 1930, 1930 (U.K.), c. 26.

The appellant, an Indian, was charged with fishing during a closed season contrary to the federal Fisheries Act. The charge was dismissed at trial on the ground that by virtue of clause 13 of the 1929 agreement between the Government of Canada and the Government of Manitoba, the appellant had the right to fish for food at all seasons of the year. The Court of Appeal reversed the judgment at trial on the ground that the Supreme Court of Canada had decided in Daniels v. White and The Queen, [1968] S.C.R. 517, that clause 13 of the agreement was applicable solely to provincial laws. Hence the appeal to this Court.

Held: The appeal should be dismissed.

In deciding that, applying the judgment of this Court in the Daniels case, clause 13 of the 1929 agreement between the federal and provincial governments did not exempt the appellant from compliance with the federal Fisheries Act and the Regulations thereunder, the Court of Appeal reached the correct conclusion.

Daniels v. White and The Queen, [1968] S.C.R. 517, followed.

APPEAL from a judgment of the Manitoba Court of Appeal[1] reversing the judgment of Mikle J. of the Provincial Court[2]. Appeal dismissed.

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H.I. Pollock, Q.C., M.B. Nepon, and Brenda Keyser, for the appellant.

M.J. Conklin and A.G. Bowering, for the respondent.

B.A. MacFarlane and J.M. Mabbutt, for the intervenor.

The judgment of the Court was delivered by

MARTLAND J.—The appellant was charged that on April 20, 1978, he fished for northern pike in waters where, at that time, fishing for such fish was prohibited under the Fisheries Act, R.S.C. 1970, c. F-14. The appellant is an Indian, and was fishing, on land to which he had a right of access, for food for the use of himself and his family.

The charge was dismissed, at trial, on the ground that by virtue of clause 13 of the agreement between the Government of Canada and the Government of Manitoba made on December 14, 1929, the appellant had the right to fish for food at all seasons of the year. Clause 13 provides as follows:

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 the right of access.

Section 1 of the British North America Act, 1930, confirmed that agreement and gave to it the force of law.

The Court of Appeal reversed the judgment at trial on the ground that this Court, by a majority decision, had decided in Daniels v. White and The Queen[3] that clause 13 imposed the obligations and restrictions defined in it only upon the transferee

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province and that the clause was applicable solely to provincial laws. After referring to the Daniels case, the Court concluded as follows:

In the present case we are dealing with a Federal enactment, namely, the Fisheries Act. Applying the decision of the majority in the Daniels case we must hold that the accused was bound by the provisions of that Act. The proviso in clause 13 of the 1929 agreement, affirmed by the 1930 tripartite legislation, did not exempt him from compliance with the Fisheries Act and the Regulations thereunder.

In my opinion the Court of Appeal reached the correct conclusion. I would, therefore, dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Pollock & Company, Winnipeg.

Solicitor for the respondent: The Deputy Attorney General Winnipeg.

Solicitor for the intervener: The Regional Director, Department of Justice, Winnipeg.