huntingand fishing rights recent developments in...
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HUNTING AND FISHING RIGHTS RECENT DEVELOPMENTS IN THE
SUPREME COURT OF CANADA
P. Mitch McAdamConstitutionalBranchSaskatchewan Justice
- 1874 Scarth st.Regina, Sask. S4P9V7
Ph: (906) 787-7848 Fax: (906) 787-9111
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TABLE OF CONTENTS)
PAGE
I. INTRODUCTION
II. LEGAL AND HISTORICAL BACKGROUND 1
III. RECENT SUPREME COURT CASES 5
A. R. v. Badger 5
B. R. v. Nikal 9
C. R. v. Lewis 14
D. R. v. Van der Peet 16
E. R. v. N. T. C. Smokehouse Ltd. 22
F. R. v. Gladstone 26
G. R. v. Adams 33
H. R. v. Cote 36
IV. INDIAN FISHING RIGHTS IN THE PRAIRIE PROVINCES 39
V. METIS HUNTING AND FISHING RIGHTS 41
VI. CONCLUSION 44
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HUNTING AND FISHING RIGHTS- RECENT DEVELOPMENTS IN THE SUPREME COURT OF CANADA*
I. INTRODUCTION
During the past year, the Supreme Court has released eight decisions concerning the hunting and
fishing rights of Aboriginal people. The purpose of this paper is to review those decisions and to
provide the reader with an indication of the general principles concerning Aboriginal and Treaty
rights that can be derived from the cases and to highlight the implications that the cases have for
Saskatchewan.
II. LEGAL AND HISTORICAL BACKGROUND
It is important initially to understand the legal and historical background to hunting and fishing
rights in Saskatchewan. When the first Europeans arrived in this area, the land was occupied by a
number of Indian Nations such as the Cree and the Dene. They subsisted largely by hunting and
fishing. After the arrival of the Europeans, they turned some of their attention to trapping furs which
were traded for manufactured goods. This relationship continued for approximately 200 years.
Much of the land that now makes up the Province of Saskatchewan was included in the territory
granted to the Hudson's Bay Company by King Charles II in 1670. The grant included all of the
lands within the watersheds of the rivers draining into Hudson's Bay. It was known as Rupert's
Land. In 1870, the Hudson's Bay Company sold this land to Canada for £300,000. The land was
admitted into Confederation by the Rupert's Land North-Western Territory Order. I Part of it
became the new Province of Manitoba.
The Dominion government soon embarked upon a process of Treaty making with the Indians.
Between 1871 and 1906, ten Treaties were entered into with the Indians of western Canada. The
R.S.C. 1985, Appendix II, No.9.
2
4
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tenns of these Treaties are all very similar. They are known as the "numbered Treaties".2 In each
case, the Indians surrendered their Aboriginal title to the lands that they traditionally occupied in
order to pennit settlement by Canadians and Europeans to take place and to pave the way for the
construction of a trans-continental railway. In exchange, the Crown promised the Indians a number
ofthings such as reserve lands, annual payments, assistance with the transition to an agricultural way
of life and hunting, fishing and trapping rights.3
Treaty Nos. 2,4,5,6,8 and 10 are applicable in Saskatchewan. The hunting rights clause in Treaty
No.6 is typical of the hunting rights clauses contained in each of the Treaties. It reads as follows:
Her Majesty further agrees with Her said Indians that they, the said Indians,shall have right to pursue their avocations of hunting and fishing throughoutthe tract surrendered as hereinbefore described, subject to such regulations asmay from time to time be made by Her Government of Her Dominion ofCanada, and saving and excepting such tracts as may from time to time berequired or taken up for settlement, mining, lumbering or other purposes byHer said Government of the Dominion of Canada, or by any of the subjectsthereof duly authorized therefor by the said Government.4
It is important to note that the hunting rights granted to the Indians were not absolute. They were
limited geographically. They were also subject to government regulations.
The next significant legal development with respect to hunting and fishing rights in Saskatchewan
was the Natural Resources Transfer Agreement which was entered into between Canada and
Saskatchewan in 1930. When the Province of Manitoba was created in 1871 and later when the
Copies of the texts of the Treaties are available from the Department ofIndian Affairs andNorthern Development.
3 For an account of the negotiations leading to the Treaties, see Hon. Alexander Morris, TheTreaties ofCanada with the Indians ofManitoba and the North-West Territories (Toronto: Belfords, Clarke & Co.,1880 republished by Coles Publishing Company, 1979).
Treaty No.6 between Her Majesty the Queen and the Plain and Wood Cree Indians and otherTribes of Indians at Fort Cariton, Fort Pitt and Battle River with Adhesions (Ottawa: Queen's Printer and Controllerof Stationery, 1964).
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Provinces of Saskatchewan and Alberta were created in 1905, the federal government retained
ownership of all Crown lands and natural resources within their boundaries. This was not the case
for the original Provinces of Confederation which owned their Crown lands and natural resources.
These properties were an important source of provincial revenues. The provincial governments in
the prairie provinces often complained about this situation and the federal government ultimately
agreed to transfer the remaining Crown lands in these provinces to the provincial governments in
the late 1920's. A series of three separate agreements were negotiated with the provincial
governments for this purpose. The terms of each of the agreements are very similar. The
agreements were confirmed by provincial, federal and imperial legislation. They are considered to
be part of the Constitution of Canada.5
The federal government was cognizant of its Treaty obligations to the Indians in the prairie provinces
at the time of the negotiation of these agreements. It was concerned that once the provinces secured
ownership of the Crown lands, Indians would be denied access to those lands for the purposes of
hunting, fishing and trapping. Therefore, a clause was inserted into each of the agreements to protect
Indian access to unoccupied Crown lands for these purposes. Clause 13 of the Manitoba Agreement
and clause 12 of the Saskatchewan and Alberta Agreements reads as follows:
12. In order to secure to the Indians of the Province the continuance of thesupply ofgame and fish for their support and subsistence, Canada agrees thatthe laws respecting game in force in the Province from time to time shallapply to the Indians within the boundaries thereof, provided, however, that·the said Indians shall have the right, which the Province hereby assures tothem, of hunting, trapping and fishing game and fish for food at all seasonsof the year on all unoccupied Crown lands and on any other lands to whichthe said Indians may have a right of access.6
Indian hunting rights in Saskatchewan have, therefore, been constitutionally protected since 1930.
The courts soon recognized that paragraph 12 was the sole source of Indian hunting rights. The
)
5
6
Constitution Act, 1930, R.S.C. 1985, Appendix II, No. 26, Schedules 1,2 and 3.
Ibid., Schedule I, para. 13; Schedule 2, para. 12 and Schedule 3, para. 12.
8
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Treaties could be referred to only as an aid to the interpretation of paragraph 12.7 There were many
cases over the next fifty years dealing with paragraph 12 hunting rights. The law with respect to
Indian hunting in the prairie provinces, therefore, became quite clear. 8 In R. v. Myran, Dickson J.
described the effect of paragraph 12 as follows:
I think it is clear from Prince and Myron that an Indian of the Province is freeto hunt or trap game in such numbers, at such times of the year, by suchmeans or methods and with such contrivances, as he may wish, provided heis doing so in order to obtain food for his own use and on unoccupied Crownlands or other lands to which he may have a right of access. But that is notto say that he has the right to hunt dangerously and without regard for thesafety of other persons in the vicinity.9
In 1982, the existing Aboriginal and Treaty rights of the Aboriginal peoples of Canada received
constitutional protection by virtue of section 35(1) of the Constitution Act, 1982. 10 This brought
about a new round of litigation concerning hunting and fishing rights in the prairie provinces. The
primary issue was whether paragraph 12 continued to govern or whether the original Treaty rights
now prevailed. This was an important issue because the Treaty right was wider than the paragraph
12 right in certain respects, most notably, the Treaty included a right to hunt, fish and trap for
commercial purposes while paragraph 12 was limited to hunting, fishing and trapping for the
sustenance of the hunter and his family. This litigation culminated in the decision of the Supreme
Court in R. v. Horseman in which the Court confirmed that paragraph 12 was the governing
provision and that the Treaty right to hunt for commercial purposes had been extinguished by
paragraph 12. 11 However, this issue did not disappear. It was re-examined by the Supreme Court
7 Rex v. Smith, [1935] 2 W.W.R. 433 (Sask. t.A.) and R. v. Strongquifl (1953), 8 W.W.R. (N.S.)247 (Sask. C.A.).
See Rexv. Wesley, [1932] 2 W.W.R. 337 (Alta. S.C.-A.D.); R. v. Prince, [1964] S.C.R. 81; R. v.Daniels, [1968] S.C.R. 517; and Cardinal v. Attorney General ofAlberta, [1974] S.C.R. 695.
9
10
[1976]2S.C.R. 137,atpp. 141-142.
R.S.C. 1985, Appendix II, No. 44.
II [1990] 1 S.C.R. 901; see also: R. v. McIntyre, [1992] 3 C.N.L.R. 113 (Sask. C.A.), application forleave to appeal to the Supreme Court dismissed [1992] 3 S.C.R. vii.
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in R. v. Badger, the first of the hunting and fishing rights decisions from 1996 and the one that will
have the most significant effect in Saskatchewan.
The other Supreme Court decisions from 1996 all concern Aboriginal fishing rights. These decisions
are less significant to Saskatchewan because most First Nations in this province have surrendered
their Aboriginal hunting and fishing rights by Treaty. Those rights have been replaced by Treaty
rights which, as noted earlier, have been constitutionally altered by paragraph 12 of the Transfer
Agreement. The decisions do, however, provide some important insight into the understandings of
the Supreme Court with respect to the nature and scope of Aboriginal rights and the inter
relationship between Aboriginal rights and both federal and provincial laws. The principles laid
down by the Court will be applicable to other Aboriginal rights asserted by Aboriginal peoples
outside of the realm of hunting and fishing rights. Also, there has recently been a case in
Saskatchewan in which two Metis individuals successfully asserted a Metis Aboriginal right to fish.
The Supreme Court decisions will have a direct impact on the appeal in this case and any other
similar cases that arise in the future. Metis hunting and fishing rights will be discussed in greater
detail at the conclusion of'this paper.
What follows are summaries of the Supreme Court decisions in each of the Aboriginal hunting and
fishing rights cases from 1996.
III. RECENT SUPREME COURT CASES
A. R. v. BADGER12
This case involved appeals in three separate cases all arising in Alberta. The cases were R. v.
Badger, R. v. Ominayak and R. v. Kiyawasew. In each case, the accused was a Treaty No.8 Indian
who was hunting for food on privately owned land. He did not have the permission of the landowner
12 [1996] 1 S.C.R. 771.
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to hunt upon the lands. As a result, he was charged with the offence of either hunting without a
license or hunting out of season under the Wildlife Act. The accused all claimed a Treaty right to
hunt on the lands as a defence.
All accused were convicted in Provincial Court. The Courts held that Indian hunting rights in
Alberta were governed by the provisions of paragraph 12 of the Transfer Agreement, not by the
terms of the original Treaty. Under paragraph 12, Indians are allowed to hunt for food at all times
of the year on unoccupied Crown lands or other lands to which they have a right of access for the
purpose of hunting. When hunting within the protection of paragraph 12, Indians are not subject to
any provincial game laws except those related to safety. The case law clearly established that in
order for an Indian to hunt on privately owned land, he must have the permission of the landowner.
This permission could be either express or implied.
Appeals to both the Court of Queen's Bench and the Court of Appeal were dismissed. A further
appeal was taken to the Supreme Court.
Cory J. wrote the majority judgment. He began by reviewing the Treaty right to hunt. The Treaty
. provided that Indians could continue to hunt on any of the lands ceded by the Treaty that were not
"required or taken up for settlement, mining, lumbering or other purposes". Cory J. said that this
Treaty provision should not be interpreted in a technical sense but rather that it should be interpreted
in the sense that it would have been understood by the Indians at the time of the Treaty signing. He
relied upon the evidence of an expert witness called by the defence who said that the Indians would
have understood "required or taken up" to mean that the land had been visibly put to some use which
was incompatible with hunting, such as the erection ofbuildings, the planting ofcrops or the keeping
of livestock. They would not have understood that a transfer of ownership from the Crown, in an
of itself, meant that the lands were "required or taken up" for settlement or other purposes.
Therefore, Cory J. concluded that there was a Treaty right to hunt on any privately owned lands
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within the Treaty area that were not visibly put to some use which was incompatible with Indian
hunting. 13
The next issue that Cory J. had to address was the effect ofparagraph 12 of the Transfer Agreement.
In the past, the courts had held that Treaty hunting rights were "merged and consolidated" into
paragraph 12 and that paragraph 12 was, therefore, the sole source of constitutionally protected
Indian hunting rights in the prairie provinces. This view had recently been affirmed in Horseman
which held that the Treaty originally included a right to hunt for commercial purposes but that this
right had been taken away by paragraph 12. Cory 1., however, held that paragraph 12 did not deprive
the Treaty hunting rights clause of all legal significance. He said that Treaty hunting rights had been
modified by paragraph 12 only to the extent that paragraph 12 evinced a clear intention to do so or
where there was a direct conflict between the Treaty right and paragraph 12. 14 While he confirmed
that the Treaty right to hunt for commercial purposes had been modified, he said that the Treaty right
to hunt on privately owned lands that were not visibly in use continued to exist. This Treaty right
could form the "right of access" required in order to bring the hunting within the protection of
paragraph 12.
Cory J. then turned to the particular facts of the three cases. Badger was hunting on brush land
within a quarter ofa mile ofa farm house. Kiyawasew was hunting on a snow covered stubble field.
Cory J. held that in both of these· cases the lands were visibly in use and, therefore, there was no
Treaty right to hunt on them. Ominayak, on the other hand, was hunting on "uncleared muskeg".
Cory 1. found that he had a Treaty right to hunt on these lands. 15
According to the existing jurisprudence, this ought to have been the end of the court's inquiry with
respect to the charges against Ominayak. It had been widely accepted that no provincial game laws
13
14
15
Ibid., at pp. 792-793 and at pp. 797-808.
Ibid., at pp. 794-797.
Ibid., at p. 808.
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could apply to Indians who were hunting within the protection of paragraph 12 irrespective of
provincial concerns with respect to conservation or other matters. Paragraph 12 was understood to .
establish a bright line between the application and non-application of provincial game laws to
Indians. Cory J., however, held that the Wildlife Act could still be applied to Ominayak
notwithstanding that he was hunting within the protection of paragraph 12, if the particular provision
in question could satisfy the infringement and justification tests laid down by the Supreme Court in
R. v. Sparrow. 16 Therefore, the accused first had to establish that the law constituted a prima facie
infringement of the modified Treaty right. Then the onus shifted to the Crown to show that the law
was justified. In order to do so, the Crown had to satisfy a two-part test. First, it had to show that
there was a valid legislative objective for the law, such as conservation and management of natural
resources. Second, it had to show that this objective was achieved in a manner that was consistent
with the honour of the Crown in its dealings with Aboriginal peoples and which upheld the fiduciary
obligations of the Crown towards Aboriginal peoples. 17 Cory 1. stressed that the concept of
reasonableness was an integral part of the Sparrow tests. 18
He held that the licensing provisions of the Wildlife Act constituted a prima facie infringement of
the Treaty right. The requirement to take a gun safety course before obtaining a license was
necessary for the protection of the public and did not infringe the Treaty right. 19 However, any
license that would be issued necessarily limited the methods, times and extent of Indian hunting and,
therefore, infringed the hunting right.20 The Crown had not led any evidence at trial with respect to
justification. Therefore, Cory 1. ordered a new trial.
16
17
18
19
20
[1990] I S.C.R. 1075,atpp. 1111-1119.
ibid., at pp. I II3-1114.
Supra, footnote 12, at p. 811.
ibid., at pp. 816-818.
ibid., at p. 818.
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Sopinka 1. wrote a separate, concurring judgment. He disagreed with Cory 1. on the effect of
paragraph 12 of the Transfer Agreement. In his opinion, Treaty hunting rights were completely
merged into paragraph 12 and paragraph 12 was now the sole source of constitutionally protected
Indian hunting rights in the prairie provinces. While the Treaty could be relied upon to assist in the
interpretation of paragraph 12, it had no other significance.2J Sopinka 1. also said that section 35(1)
of the Constitution Act, 1982 had no direct application to the hunting rights protected by paragraph
12. Those rights were already protected by the Constitution. Additional protection from section 35
would be redundant.22
Sopinka J. agreed with the remainder of the analysis of Cory 1. In particular, he agreed that
Ominayak had a right ofaccess to the lands in question for the purposes of hunting under paragraph
12, although he does not explain how this right of access arose if the Treaty no longer had no legal
force. He also agreed that provincial game laws could be applied to Indians hunting within the
protection of paragraph 12 if those laws satisfied a justificatory test similar to that laid down in
Sparrow. In his view, the section 35(1) test did not apply directly to infringements of rights
protected by paragraph 12 but a similar test could be read into paragraph 12 by implication.23
B. R. v. NlKAL24
The Accused is a Wet'suwet'en Indian. He lives on the Moricetown Indian Reserve in British
Columbia. The reserve is situated on both sides of the Bulkley River. On July 20, 1986, the
Accused was gaffing salmon in the Bulkley River where it passes through the reserve. He did not
have a licence to do so as required by the British Columbia Fishery (General) Regulations. He could
have received a free licence under the Regulations authorizing him to fish for salmon by whatever
21 Ibid., at pp. 779-781.
22 Ibid., at pp. 783-784.
?'Ibid., at pp. 784-785.-~
24 [1996] 1 S.C.R. 1013.
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means he wished. The Accused claimed that the Fisheries Act and the Regulations did not apply to
him for two reasons. First, he said that the river was part of the Moricetown Indian Reserve and that
his fishing was, therefore, governed by the Band's fishing bylaw and not by the Regulations.
Second, he said that he had an existing Aboriginal right to fish in the Bulkley River which was
unjustifiably infringed by the requirement to obtain a licence under the Regulations.25
The Accused was acquitted at trial. Judge Smyth of the Provincial Court held that the Band bylaw
applied to the Bulkley River where it flowed through the reserve and provided the Accused with a
complete defence. The Crown appealed this decision to the British Columbia Supreme Court. The
appeal was dismissed. Millward 1. held that the Band bylaw did not apply on the river which, in his
view, was not part of the reserve. However, he found that the Accused had an existing Aboriginal
right to fish on the river and that the licensing requirement unjustifiably infringed that right. The
Crown appealed this decision to the British Columbia Court of Appeal.
The majority of the Court of Appeal held that the Bulkley River was not part of the reserve and,
therefore, the Band bylaw had no application. The Accused did, however, have an existing
Aboriginal right to fish at the location in question. The majority held that the licensing requirement
did not infringe this right. Licensing was seen as a natural part of the scheme required to manage
the fisheries in order to ensure conservation and proper allocations of the resource. Licensing was
reasonable and did not cause undue hardship. Therefore, the appeal was allowed. The Accused then
launched a further appeal to the Supreme Court.
Cory J. wrote the judgment for the majority. He held that the Bulkley River was not part of the
Moricetown Indian Reserve. In his view, the Crown did not intend to include the river as part of the
reserve. This would have given the Moricetown Indians an exclusive right to fish in that part of the
river. The long-standing and clearly expressed policy of the Crown was not to grant exclusive
fishing rights in what were considered to be public waters. As well, the Reserve Commissioner did
25 ibid., at p. 1020.
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not purport to include the river bed in the reserve. He merely recommended the reservation of the
fishery for the Indians which the Department ofMarine and Fisheries consistently refused to do. The
Crown's intention was simply to establish a reserve for the Indians which gave them ready access
to the river, but not the river itself.26
The Accused also argued that the river bed ought to be considered to be part of the reserve by virtue
ofthe ad mediumfilum aquce presumption. At common law, the owner ofland through which a non
tidal river flows is presumed to own the bed of the river. British Columbia adopted the common law,
including the ad medium filum aquce presumption, as it stood on November 19, 1858, except in so
far as it was "by local circumstances inapplicable". Cory 1. held the presumption to be inapplicable
in this case for three reasons. First, the presumption does not apply to navigable waters in western
Canada. This had been decided many years ago in the Iverson27 and the Flewelling.8 cases. The
Bulkley River is a navigable waterway. To assess navigability, the entire length of the river had to
be considered. While the Bulkley River is not navigable where it passes through the Moricetown
Indian Reserve because offalls and rapids, it is navigable both above and below the reserve. Second,
the right of fishery is a property right which is ordinarily one of the incidents of the title to the bed
of a river. The right is, however, severable from this title and can be granted separately or reserved
from a grant. The clear evidence in this case was that the Crown did not intend to grant the
Moricetown Indians an exclusive fishery. Therefore, even ifthe ad mediumfilum aquce presumption
applies, any grants oftitle to land adjacent to the river must be taken as excluding the fishery. Third,
the ad mediumfilum aquce presumption was conclusively rebutted. The clear evidence was that the
Crown did not intend to include the bed of the river in the reserve. The acreage of the reserve
indicates an intention to exclude the river. As well, the retention of the fishery by the Crown leads
to the presumption that the bed of the river was also retained by the Crown.29
26 Ibid., at pp. 1024-1045.
27 (1921),57 D.L.R. 184 (Man. C.A.).
28 (1921), 59 D.L.R. 419 (Alta. C.A.).
) 29 Supra, footnote 24, at pp. 1045-1055.
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Cory 1. therefore concluded that the river was not part of the reserve and that the Band bylaw could
not provide the Accused with a defence. He then considered the Accused's Aboriginal rights
argument. In his view, the Accused had established an existing Aboriginal right to fish for food and
ceremonial purposes. However, Sparrow specifically states that the constitutional recognition
afforded to existing Aboriginal rights by section 35(1) of the Constitution Act, 1982 does not
guarantee immunity from government regulations. 30 Rights do not exist in a vacuum. The rights
of anyone individual or group are necessarily limited by the rights of others. The Aboriginal right
to fish must be balanced against the need to conserve the fishery stock.31 He held that the licensing
scheme formed the essential foundation of the government's conservation program. He viewed it
as the least intrusive way ofestablishing the identity ofan individual as an Aboriginal person entitled
to exercise Aboriginal rights. The licensing requirement does not constitute a prima facie
infringement of the Aboriginal right to fish. The requirement is not unreasonable. Rather, it is a
necessary form of identification. It does not impose undue hardship. This must mean something
more than mere inconvenience. As long as a licence is available without great difficulty or expense.
it cannot be considered an undue hardship. He concluded by saying that as a general rule the simple
requirement of a licence will seldom constitute a primafacie infringement of an Aboriginal right.32
Cory J. then considered whether or.-not any of the conditions attached to the licence, as a opposed
to the requirement to obtain a licence itself, infringed the Accused's Aboriginal right to fish. He held
that a number of the conditions constituted prima facie infringements of the Aboriginal right. In
particular, he pointed to the conditions which limited fishing to fishing for food purposes only,
which limited the times of the year when the licence holder could fish and which restricted the
fisherman from distributing fish to Band members who were not part of his immediate family. 33
These conditions would be applicable only if the Sparrow justification test was satisfied. Cory J.
30
31
32
33
Supra, footnote 16, at p. 1110.
Supra, footnote 24, at pp. 1057-1058.
Ibid., at pp. 1058-1061.
Ibid., at pp. 1061-1063.
)
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reiterated that the Sparrow test contained two steps. The first is whether there is a valid legislative
objective served by the government action. The second is whether the honour of the Crown in its
dealings with Aboriginal peoples is upheld. He said that the concept of reasonableness formed an
integral part of this test. He also pointed out that the context ofeach particular situation must always
be kept in mind. For example, he said that the requirement to consult with affected Aboriginal
groups will obviously be less onerous when regulations must be enacted expeditiously in order to
avoid a crisis.34 In this case, government had not adduced any evidence to justify the licence
conditions and, therefore, failed to meet the onus upon it. Cory J. held that the licence and its
conditions were so inextricably bound together that they could not be considered separately. As any
licence that would have been issued would necessarily have been invalid, he held that there could
be no requirement to obtain a licence and, therefore, the Accused was acquitted.35
McLachlin J. wrote a short dissenting judgment. She agreed with Cory 1. on all questions
concerning the boundaries of the Moricetown Indian Reserve and the applicability of the Band
bylaw. She also agreed that the licensing requirement did not constitute a prima facie infringement
of the Accused's Aboriginal right to fish. However, in her view, it was not appropriate for the Court
to consider the conditions attached to that licence because the Accused had not been charged with
,a breach of any of the licence conditions but rather had been charged simply with fishing without
a licence.36 She would have, therefore, upheld the conviction of the Accused and dismissed the
appeal.
34
35
36
Ibid., at pp. 1064-1065.
Ibid., at pp. 1066-1068.
Ibid.,atpp.l069-1072.
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C. R. v. LEWIS37
The three Accused are all members of the Squamish Indian Band. They reside on the Cheakamus
Indian Reserve in British Columbia. They were charged with a variety of offences under the British
Columbia Fisheries (General) Regulations related to fishing in the Squamish River adjacent to their
reserve. They relied upon a Band bylaw as a defence to the charges. The primary issue in the case
was whether all or part of the Squamish River was included within the boundaries of the Indian
reserve.38
The Accused were convicted in Provincial Court. They appealed to the County Court and their
convictions were overturned. VanDer Hoop J. applied the ad mediumfilum aqua! presumption and
held that the reserve boundary extended to the mid-line of the Squamish River. Therefore, in his
view, the Band bylaw constituted a complete defence for the Accused. The Crown appealed this
decision to the Court of Appeal. The appeal was allowed. The Court of Appeal held that the ad
medium filum aqua! presumption did not apply because the Squamish River was a navigable
waterway. Therefore, the reserve boundary did not extend beyond the bank of the river and the Band
bylaw did not provide the Accused with a defence. The Accused then appealed this decision to the
Supreme Court.
The appeal was dismissed. Iacobucci J. wrote the judgment for a unanimous court. He held that the
fishery in the Squamish River was never intended to be part of the reserve. The policy of the Crown
at the time that the reserve was established was clearly not to grant Indians the exclusive use of any
public waters for the purposes of fishing. The Crown only set apart fishing stations in order to
provide the Indians with access to the fishery. This practice fulfilled any fiduciary duty that the
Crown owed to the Indians in connection with the fishery.39
37
38
39
[1996] I S.C.R. 921.
Ibid., at pp. 926-927.
Ibid., at pp. 938-949.
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The Accused also argued that part of the Squamish River was included in the reserve by virtue of
the ad mediumfilum aqua; presumption irrespective ofthe Crown's intention. This common law rule
provides that the ownership of the bed of a non-tidal river or stream belongs in equal halves to the
owners of the riparian land, whether the body of water is navigable or not. The presumption may
be rebutted either by the terms of the grant or the circumstances surrounding it. The presumption
was made applicable in British Columbia as of November 19, 1858 by the English Law Ordinance
1867, in so far as it was "not from local circumstances inapplicable".
The Court held that the ad medium filum aqua; presumption does not apply to navigable waters in
western Canada, including British Columbia. As the Squamish River is a navigable water body, the
presumption had no application and the boundaries of the reserve were the banks of the river, not
its middle thread.40
The final argument that the Accused made concerned the interpretation of section 81 (1)(0) of the
Indian Act which authorizes Band councils to make bylaws with respect to "the preservation,
protection and management of fur-bearing animals, fish and other game on the reserve". The
Accused argued that the phrase "on the reserve" ought to be interpreted to 'include~waters
immediately adjacent to the reserve..They relied upon the principles ofinterpretation laid down by
the courts which have held that "treaties and statutes relating to Indians should be liberally construed
and doubtful expressions resolved in favour of the Indians". The Court rejected this argument.
Iacobucci J. held that when interpreting a statute, the intention ofParliament is the most important
consideration. The ordinary and natural meaning of the phrase "on the reserve" was "within the
reserve" not "adjacent to the reserve". There was nothing in the context or the purpose of the
statutory provision that warranted a different interpretation.- Parliament did not intend that Band
bylaws should have extra-territorial effect.41
)
40
41
Ibid., at pp. 950-953.
Ibid., at pp. 953-959.
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D. R. v. VANDER PEET"2
The Accused is a member of the Sto:lo First Nation. She sold ten salmon to a non-Indian. The
salmon had been lawfully caught by her common law husband under the authority ofan Indian Food
Fish Licence. Section 27(5) ofthe British Columbia Fishery (General) Regulations provides that
no person shall sell any fish caught under the authority of such a licence. The Accused was,
therefore, charged with an offence. She claimed that she had an existing Aboriginal right to sell
salmon which was protected by section 35(1) of the Constitution Act, 1982 and that the Regulation
was, therefore, not applicable to her.43
The Accused was convicted at trial. Judge Scarlett of the Provincial Court found that the Sto:lo
historically fished for food and ceremonial purposes but that they traded fish with their neighbours
only occasionally. Therefore, he held that they had no Aboriginal right to sell fish. This decision
was reversed on appeal. Judge Selbie of the British Columbia Supreme Court decided that the
Accused had an Aboriginal right to sell fish because the Sto:lo historically did not prohibit sales of
fish by their members.44
The British Columbia Court of Appeal overturned this decision and restored the convi.ction. The
majority judgment was written by Macfarlane lA. He held that a practice could be considered to
be an Aboriginal right only if it was an integral part of the distinctive culture of the Aboriginal
people in question at the time of the assertion of British sovereignty. He also held that practices
which became prevalent in Aboriginal society as a result of European influences could not be
considered to be Aboriginal rights. Based upon the findings of fact of the trial judge, Macfarlane
lA. therefore held that the Accused did not have an Aboriginal right to sell fish.45
42 [1996] 2 S.C.R. 507.
43 Ibid., at pp. 527-528.
44 Ibid., at pp. 528-529.
45 Ibid., at pp. 529-530.
- 17 -
Both Lambert l.A. and Hutcheon lA. dissented. Lambert lA. adopted a wider view of what
constitutes an Aboriginal right. He said that Aboriginal rights must be defined according to the
social significance of the activity to the Aboriginal community rather than the purpose of the
activity. Therefore, he concluded that as the Sto:lo had traditionally fished to earn a livelihood, they
had an Aboriginal right to earn a moderate livelihood from fishing which included the right to catch
and sell salmon. Hutcheon l.A., on the other hand, based his finding that the Sto:lo had an
Aboriginal right to sell fish on the extensive trade with the Hudson's Bay Company that the Sto:lo
were engaged in by the time of the assertion of British sovereignty in the area in 1846. He disagreed
with Macfarlane lA.'s analysis of this activity and said that the fact that it arose as a result of
European influences was irrelevant.46
The Supreme Court dismissed the appeal. Lamer C.J. wrote the majority judgment. He set out a test
for determining the existence of Aboriginal rights. The test is whether the activity in question was
an integral part of the distinctive culture of the Aboriginal people prior to their first contact with
Europeans. Lamer C.l. stressed that Aboriginal rights relate to those activities which were a central,
significant and defining part ofthe Aboriginal society's traditional culture. In his view, Aboriginal
rights are rooted in the historical customs, practices and traditions of Aboriginal peoples. He set the
threshold for establishing an Aboriginal right quite high. He made it clear that those ~aspects of
Aboriginal societies that are common to all societies cannot be considered to be Aboriginal rights.47
He also said that particular customs, practices and traditions which have evolved only because of the
influence of European cultures cannot be considered to be Aboriginal rights. Lamer C.J. also said
that in order for a modern activity to qualify as an Aboriginal right it must be integral to the
distinctive culture of the Aboriginal society today and there must be continuity between the practice
and similar practices that occurred in the particular Aboriginal society in pre-contact times.48 He did,
46
47
48
Ibid., at pp. 531-532.
Ibid., at pp. 548-554 and at pp. 561-562.
Ibid., at pp. 554-558.
- 18 -
however, indicate that Aboriginal rights must be interpreted flexibility to permit their evolution over
time and that Aboriginal rights may be exercised by modem means.
Lamer C.J. said that the first step in the "integral to distinctive culture" test is to identify the precise
nature of the right being claimed. He said that three things should be considered in order to correctly
characterize the right:
(1) The nature of the activity in question;
(2) The nature of the government regulation being impugned; and
(3) The historical custom, practice or tradition being relied upon to establish the right.49
In this case, Lamer C.J. held that the right in question was an Aboriginal right to exchange fish for
money or for other goods rather than an Aboriginal right to sell fish for commercial purposes. He
based his conclusion concerning the nature of the Accused's claim on the fact that she sold only ten
fish for $50, there was no evidence that she had sold salmon on other occasions and that the
regulation in question prohibited all sales offish caught pursuant to an Indian Food Fish Licence
whether sales were for commercial purposes or not.50 Lamer C.J. concluded that the Accused had
not established that the Sto:lo had this right because the Trial Judge found that only limited
exchanges of salmon took place in Sto:lo society. Therefore, the exchange of salmon for money or
other goods was not an integral part of the distinctive culture ofthe Sto:lo.
L'Heureux-Dube J. dissented. She discussed the nature ofAboriginal rights in some detail. She said
that Aboriginal title and Aboriginal rights are derived from the historic occupation and use of
ancestral lands by Aboriginal peoples. The main component of Aboriginal rights is Aboriginal title
which is sui generis proprietary interest which gives Aboriginal people the right to occupy and use
particular lands at their own discretion, subject to the Crown's ultimate title and exclusive right to
49
50
Ibid., at pp. 551-553.
Ibid., at pp. 563-564.
)- 19 -
purchase the lands. 51 There is, however, in her opinion, a broader notion of Aboriginal rights which
include the component elements of Aboriginal title, such as Aboriginal rights to hunt, fish and trap,
as well as other matters not related to land which form part of the distinctive cultures of Aboriginal
peoples.52
The views of L'Heureux-DuM 1. differed from those of the Chief Justice with respect to
characterization of Aboriginal rights. She favoured examining the nature and extent of Aboriginal
rights from a level of abstraction and generality rather than focusing on particular Aboriginal
customs, practices and traditions. In her view, section 35(1) protected not a catalogue of
individualized customs, practices and traditions but rather the "distinctive culture" of which
particular Aboriginal activities were merely manifestations. The customs, practices and traditions
protected by section 35 should be those that are sufficiently significant and fundamental to the
culture and social organization of the Aboriginal group.53
She also disagreed with the Chief Justice concerning the relevant timeframe for determining the
existence of Aboriginal rights. She stated that she did not believe that Aboriginal rights should be
defined by reference to either pre-contact or pre-sovereignty practices. She referred to this as a
"frozen rights" approach. She favoured a "dynamic rights" approach. In her view, as ~ong as an
activity has formed an integral part of a distinctive Aboriginal culture for a substantial, continuous
period of time (such as 20 to 50 years), it ought to be considered an Aboriginal right, whether it
existed pre-contact or pre-sovereignty or not. 54
She agreed with the Chief Justice that the case law justified drawing a distinction between the sale,
trade and barter of fish for livelihood, support and subsistence purposes and the sale, trade and barter
51 Ibid., at p. 578.
52 Ibid., at p. 579.
53 Ibid., at pp. 590-595.
) 54 Ibid., at pp. 596-602.
- 20-
offish for purely commercial purposes.55 She did not believe that the activity in question (the sale
of ten fish) was part of a commercial venture. After reviewing the evidence from trial, she
concluded that the Sto:lo historically sold, traded and bartered fish with their neighbours for
livelihood purposes and that this activity was sufficiently significant and fundamental to their culture
and social organization to qualify as an Aboriginal right. Therefore, she concluded that an
Aboriginal right existed but she would have remitted the case for a new trial to deal with the issues
of extinguishment, infringement and justification.
McLachlin 1. also dissented. She disagreed with the way that both Lamer C.J. and L'Heureux-Dube
J. characterized Aboriginal rights. She said that the focus should be on the ancestral customs and
laws of Aboriginal peoples. She thought that the tests proposed by both the Chief Justice and
L'Heureux-Dube 1. set out many important considerations with respect to the existence and scope
of Aboriginal rights but that the tests were too broad and uncertain to be workable. She preferred
an empirical or case by case approach.56
McLachlin J. described the right in issue as the right to continue to use the resource to provide the
equivalent of what the Aboriginal people traditionally obtained from it.57 In this case, as the Sto:lo
had traditionally relied upon the river to sustain themselves, they had an Aboriginal right to continue
to do so. The Aboriginal right was not the right to sell, trade or barter fish. It was the right to fish
in the river for subsistence purposes. Trade was only one way ofexercising that right. If trade was
required in order for the Indians to sustain themselves, then it was included within the right.
McLachlin J. also would have limited the right to securing from the river what was traditionally
secured from it, namely, a moderate livelihood.58 She did not believe that the right extended beyond
this and, in particular, she said that it could not be relied upon to fish for commercial profit.
55 Ibid., at pp. 603-609.
56 Ibid., at pp. 637-641.
57 Ibid., at p. 649.
58 Ibid., at pp. 649-650.
)- 21 -
McLachlin 1. next considered the issue of extinguishment. The Crown had relied upon Order-in
Council No. 2539 (1917) which authorized Indians in British Columbia to fish for food, but not for
commercial purposes. McLachlin 1. held that this Order-in-Council did not extinguish the
Aboriginal rights ofthe Sto:lo with respect to the fishery. She adopted a test for the extinguishment
of Aboriginal rights enunciated by the United States Supreme Court in United States v. Dion. 59 She
said that in order to extinguish an Aboriginal right, the Crown must show that the government
actually considered the conflict between its intended action on the one hand and the Aboriginal right
on the other and consciously chose to resolve the conflict by extinguishing the Aboriginal right. In
her view, the Crown had not met this very onerous test.
Next, she considered the question of infringement. She began by noting that the questions set out
in Sparrow with respect to this issue are really more relevant at the stage ofjustification. She said
that there were two stages to the infringement inquiry. First, the claimant had to show that he was
prevented or interfered with in doing something that he had an Aboriginal right to do. Next, the
Crown could show that the regulatory scheme as a whole satisfied the Aboriginal right. If not, there
was a prima facie infringement.6o In this case, she held that such an infringement had been
established.
The final issue that McLachlin 1. considered wasjustification. She was highly critical of the Chief
Justice's views on justification. In R. v. Gladstone, the Chief Justice proposed an expansive view
ofjustification in connection with Aboriginal commercial fishing rights that took into consideration
many factors such as the reconciliation of Aboriginal and non-Aboriginal interests in the fishery,
regional economic differences and overall social hannony. McLachlin J. stated that this position was
more political than legal. In her view, the only limitations that justifiably could be applied to an
existing Aboriginal right were those required in order to conserve the resource or ensure responsible
)
59
60
476 U.S. 734 (1986), at pp. 739-740.
Supra, footnote 42, at p. 657.
- 22 -
exercise of the right. 61 The Chief Justice had taken a wide view of the factors that could be relied
upon to justifiably limit an Aboriginal right to fish for commercial purposes because, in his view,
such a right had no internal limits and could, therefore, result in a monopoly over commercial fishing
by Aboriginal people in many parts ofthe country. McLachlin 1., on the other hand, viewed the right
as being limited to the right to earn a moderate livelihood from fishing and, therefore, did not have
to address the concerns that arose from the Chief Justice's characterization of the right. As a result
of her conclusions, she would have entered an acquittal.
E. R. v. N.T.Co SMOKEHOUSE LTD. 62
N.T.C. Smokehouse Ltd. owns and operates a food processing plant near Port Alberni, British
Columbia. It purchased 119,435 pounds of Chinook salmon from members of the Sheshaht and
Opetchesaht Indian Bands in September, 1986. The salmon had been caught pursuant to the Bands'
Indian food fish licences. These licences did not permit the sale ofany of the fish caught under their
authority. Smokehouse was subsequently charged with illegally purchasing fish caught pursuant to
an Indian food fish licence contrary to section 27(5) of the British Columbia Fishery Regulations.
It claimed that the fishermen had an existing Aboriginal right to sell the salmon and that it, therefore,
had a right to purchase them.
Smokehouse was convicted in Provincial Court. The trial judge held that there was no Aboriginal
right to sell fish because the historical evidence established that sales of fish by members of the
Sheshaht and Opetchesaht Bands were "few and far between". The conviction was upheld on appeal
to the County Court. Judge Melvin held that even if there was an Aboriginal right to sell fish that
the regulations were necessary for the proper management and conservation of the resource and,
therefore, were applicable. A further appeal to the British Columbia Court of Appeal was also
6\
62
Ibid., at pp. 658-670.
[1996] 2 S.C.R. 672.
)- 23 -
dismissed. The majority agreed with the trial judge's characterization of the evidence and his
conclusion that no Aboriginal right to sell fish existed.63
The Supreme Court dismissed the appeal. Lamer C.J. wrote the majority judgment. He applied the
test for determining whether an Aboriginal right exists laid down in R. v. Van del' Peel, namely,
whether the activity in question is an element of a custom, practice or tradition that was integral to
the distinctive culture of the Aboriginal group claiming the right.
He began by considering the precise nature of the claim being made. He said that the large scale
sales of fish involved (approximately 1,500 pounds per fisherman) suggested that the Aboriginal
right being claimed was an Aboriginal right to fish for commercial purposes. However, he noted that
the regulation prohibited all sales of salmon, whether for commercial purposes or not. This
suggested to him that the Aboriginal right in issue was in fact an Aboriginal right to exchange fish
for money or other goods. He resolved this issue by stating that the Court should first consider the
right from the latter perspective. He said that an Aboriginal right to exchange fish must exist before
an Aboriginal right to fish for commercial purposes can exist. Therefore, the Court should consider
the existence of each of these rights sequentially.64
The question for the Court, therefore, was whether the exchange of fish for money or other goods
was a custom, practice or tradition of the Opetchesaht and Sheshaht peoples that was an integral part
of their distinctive culture prior to their first contact with Europeans. Lamer C.J. also described the
question to be asked as whether the exchange of fish for money or other goods was a centraL
significant and defining feature of the distinctive culture of the Opetchesaht and Sheshaht peoples
prior to contact.
)63
64
Ibid., at pp. 680-684.
Ibid., at pp. 686-688.
- 24-
On the basis ofthe findings of fact ofthe trial judge, Lamer C.J. held that the accused had not proven
the existence of an Aboriginal right to exchange fish. He said that sales of fish that were "few and
far between" did not have the defining status and significance necessary to be the foundation of an
Aboriginal right. He also commented that the exchange of fish at social and cultural events such as
potlatches could not lead to the conclusion that a general Aboriginal right to engage in these
activities existed. The exchanges that took place in those circumstances were incidental to the events
themselves and did not have sufficient independent significance to constitute an Aboriginal right.65
L'Heureux-DuM J. dissented. She repeated the views that she had expressed earlier in R. v. Van del'
Peet concerning the nature of Aboriginal rights. She said that the test to be applied to determine if
a particular activity was an Aboriginal right was whether it was part ofa custom, practice or tradition
that was sufficiently significant and fundamental to the culture and social organization of the
particular Aboriginal group, provided that the activity had this status for a substantial, continuous
period oftime.66 She characterized the right in issue as an Aboriginal right to sell, trade or barter fish
for livelihood, support and subsistence purposes as opposed to an Aboriginal right to fish for
commercial purposes.67 She held that there was evidence which indicated that the Opetchesaht and
Sheshaht peoples traded and bartered fish with their neighbours for these purposes prior to the arrival
of Europeans. Therefore, she was satisfied that an Aboriginal right to do so existed.
She next considered the question of extinguishment. She said that the hurdle that the Crown must
clear in order to prove extinguishment is quite high. As stated in Sparrow, the Crown must show
that Parliament's intention to extinguish an Aboriginal right was clear and plain. L'Heureux-DuM
1. said that the Crown must establish that the government specifically addressed the Aboriginal
activity in question when formulating the legislation and that the government explicitly extinguished
the Aboriginal right by making it no longer permissible. She said that the fact that continuing to
65
66
67
Ibid., at p. 690.
Ibid., at p. 698.
Ibid., at pp. 699-701.
- 25 -
pursue the activity in question was necessarily inconsistent with the law was not sufficient to prove
extinguishment.68 In this case, she held that the Aboriginal right of the Sheshaht and Opetchesaht
peoples had not been extinguished. She would have ordered a new trial to deal with the questions
of infringement and justification.
McLachlin 1. also dissented. She adopted her analysis of the nature of Aboriginal rights from
R. v. Van der Peet. She said that the question to be posed in this case was whether the current use
of the fishery by members of the Sheshaht and Opetchesaht Bands satisfied the needs of their people
that were traditionally met by the fishery.69 In her view, the Sheshaht and Opetchesaht had an
Aboriginal right to exploit the fishery in the Somas River for sustenance purposes which entitled
them to obtain from the river the equivalent of what they historically took from it according to
Aboriginal law and custom, namely, a moderate livelihood.
She held that the right had not been extinguished for the reasons that she set out in Van der Peet.)
She also held that there was a prima facie infringement of the right. The regulation prohibited all
sales offish caught by members ofthe Opetchesaht and Sheshaht Bands pursuant to Indian food fish
licenses. The Crown had not established that the legislative scheme as a whole satisfied the
Aboriginal right. The fact that some individual members of the Bands also participated in the
commercial fishery pursuant to the general regulations governing that activity was not sufficient to
prove that the Aboriginal right to do so had been satisfied.70 She also held that the Crown had not
established that the regulations in question were justified according to the Sparrow test. Therefore,
she would have entered an acquittal.
68
69
70
Ibid., at pp. 711-713.
Ibid., at p. 716.
Ibid., at pp. 718-719.
- 26-
F. R. V. GLADSTONWI
The accused are members of the Heiltsuk Band. In April, 1987 they attempted to sell 4,200 pounds
of herring spawn on kelp to a Japanese fish products buyer in Vancouver. They did not have a
licence to do so and, accordingly, were charged with illegally attempting to sell herring spawn on
kelp contrary to the Pacific Herring Fishery Regulations. They claimed an Aboriginal right to sell
herring spawn on kelp as a defence.
At trial, the Court found that the Heiltsuk did have an Aboriginal right to sell herring spawn on kelp
because they had historically traded large quantities ofherring spawn on kelp with other Aboriginal
peoples. The Court also held that this right had not been extinguished and that it was infringed by
the regulations. However, the Court held that the regulations were justified and, therefore, the
accused were convicted. On appeal, Anderson J. of the British Columbia Supreme Court agreed that
there was an Aboriginal right to sell herring spawn on kelp and that this right had not been
extinguished. However, he held that the right had not been infringed and, therefore, upheld the
conviction. A further appeal to the British Columbia Court of Appeal was also unsuccessful.
The Supreme Court overturned the convictions and ordered a new trial. Lamer C.J. wrote the
majority judgment. He began by stating that according to Sparrow, the analysis of an Aboriginal
rights claim under section 35(1) of the Constitution Act, 1982 involves four steps. They are:
1.
2.
3.
71
Determine whether the applicant has demonstrated that he was acting pursuant to anAboriginal right;
Determine whether that right was extinguished prior to the enactment of section35(1) in 1982;
Determine whether that right has been infringed; and
[1996] 2 S.C.R. 723.
- 27 -
4. Determine whether any infringement is justified.72
Lamer C.l. then turned to characterization of the precise nature of the right in issue. He said that
three factors ought to be taken into account at this stage of the inquiry - the nature of the accused's
activity, the impugned government regulation and the custom, practice or tradition relied upon to
establish the Aboriginal right. 73 He concluded that the activity of the accused in this case was best
characterized as commercial exploitation of the herring spawn on kelp fishery.
Lamer C.l. then stated that the test to be applied to determine the existence of Aboriginal rights,
according to his reasons in R. v. Van der Peet, was whether the custom, practice or tradition claimed
to be an Aboriginal right was an integral part of the distinctive culture of the particular Aboriginal
people prior to their first contact with Europeans.74 Therefore, in this case, the Court had to
determine whether the commercial exploitation of herring spawn on kelp was one of the defining
features of the culture of the Heiltsuk. The evidence indicated that this was the case. The Heiltsuk
historically traded significant quantities of herring spawn on kelp with their neighbours. Therefore,
Lamer C.l. held that the Heiltsuk possessed an Aboriginal right to sell herring spawn on kelp for
commercial purposes.
He then turned to the question ofextinguishment. He affirmed that the test for determining whether
an Aboriginal right has been extinguished was, as stated in Sparrow, that the Crown's intention must
be clear and plain in order to extinguish an Aboriginal right,75 While express language is not
necessarily required, the Crown must demonstrate more than the past application of a regulatory
regime to the exercise of the Aboriginal right. In this case, the Crown relied upon regulations which
72 Ibid., at p. 742.
73 Ibid., at p. 743.
74 Ibid., at p. 744.
75 Ibid., at pp. 748-749.
- 28 -
prohibited commercial harvesting ofherring spawn on kelp which had been in place for many, many
years. Lamer C.J. said that these regulations were insufficient to extinguish the Aboriginal right.
Next, he considered the question of infringement. He said that a licensing requirement cannot be
scrutinized for the purposes of infringement or justification without considering the entire regulatory
scheme.76 He also noted that the questions which the Court's decision in Sparrow indicated ought
to be asked with respect to the question of infringement (unreasonable? undue hardship? deny
preferred means of exercising the right?) were somewhat contradictory and were perhaps more
properly taken into account at the justification stage. He said that even if all of these questions were
answered in the negative, a primafacie infringement could still be found. 77 In this case, he held that
there was a prima facie infringement because the amount of herring spawn on kelp that could be
harvested by the Heiltsuk pursuant to their Aboriginal right was limited by the regulatory scheme.
Finally, Lamer C.J. turned to the issue ofjustification. In Sparrow, the Court had articulated a two
part test for determining whether government activity infringing Aboriginal rights was justified. The
following questions are to be asked:
1. Is there a valid legislative objective such as conserving and preserving the naturalresource or preventing harm?
2. Is the government's action consistent with the fiduciary duty which the Crown owesto Aboriginal peoples?78
In Sparrow, the Court indicated that priority for the exercise of Aboriginal rights over other users
of the resource was an important component of the justification analysis. The Court suggested that
after conservation concerns were taken into account, Aboriginal peoples with Aboriginal rights were
76
77
78
Ibid., at p. 756.
Ibid., at p. 757.
Ibid., at p. 762.
- 29-
entitled to first priority ofaccess to the fishery resource. Commercial fishermen and sport fishermen
could access the resource only after the needs of Aboriginal peoples were satisfied. Lamer C.J. held
that this reasoning was inapplicable to an Aboriginal right to fish for commercial purposes. He said
that there were significant differences between a commercial right and an Aboriginal right to fish
for food, social and ceremonial purposes such as that recognized in Sparrow because the former right
had no internal limits. Therefore, priority in the sense discussed in Sparrow would mean that the
holders of Aboriginal commercial fishing rights would have an exclusive right to use the resource.
Lamer C.J. clearly rejected the notion of exclusivity for Aboriginal commercial fishing rights.
Instead, he suggested that section 35(1) of the Constitution Act, 1982 only required the government
to demonstrate that in allocating the resource it had taken into account the existence of Aboriginal
rights and had been respectful of them. Some priority was required, but something less than
exclusivity would suffice. Lamer C.J. also said that the justification analysis had both procedural
and substantive components. He concluded by saying that the precise allocation required to satisfy
the justificatory test would have to remain somewhat vague and would have to be determined in the
particular circumstances of each individual case. He set out a number of factors that could be
considered in connection with this analysis including such things as the importance of the fishery
to the economic well-being of the Band and the extent of participation in the fishery by Band
members.79
Lamer C.J. also suggested that the legislative objectives that could be taken into account under the
first stage of the justification test were much wider in the context of Aboriginal commercial fishing
rights than they were in the context of Aboriginal sustenance, social and ceremonial fishing rights.
He said that overwhelming concerns of the community as a whole such as the pursuit of economic
and regional fairness and recognition of the historical reliance upon and participation in the fishery
by non-Aboriginal peoples were sufficiently valid legislative objectives to justify infringing an
79 Ibid., at pp. 765-769.
- 30 -
Aboriginal right in this context.80 In his view, there was insufficient evidence to assess justification
in this case and, therefore, a new trial was ordered.
L'Heureux-Dube 1. dissented. She began by indicating that the case had to be considered in light
of the analytical framework set out in Sparrow which, in her view, consisted of three steps:
1. Assessment and definition of the existing Aboriginal right (including any questionof extinguishment);
2. Establishment of a prima facie infringement of the Aboriginal right;
3. Justification of any infringement of the Aboriginal right. 81
She repeated the test for determining the existence of Aboriginal rights that she had laid down in
Van der Peet, namely, that Aboriginal customs, practices and traditions should be recognized as
Aboriginal rights if they are sufficiently significant and fundamental to the culture and social
organization of the particular group of Aboriginal people and they have had this status for a
substantial, continuous period of time. 82
She determined that the right in issue in this case was an Aboriginal right to sell herring spawn on
kelp for commercial purposes because the motive of the fishermen was economic profit. She
therefore held that the Court must examine the historical evidence to determine whether the Heiltsuk
sold, bartered and traded herring spawn on kelp for commercial purposes in a manner sufficiently
significant and fundamental to their culture and social organization for a substantial, continuous
period of time. She found that such a right existed.
80
81
82
Ibid., at p. 775.
Ibid., at p. 803.
Ibid., at pp. 804-805.
- 31 -
She agreed with the Chief Justice's reasoning with respect to extinguishment, infringement and
justification. She added a few comments ofher own. In particular, she indicated that the hurdle that
must be cleared by the Crown in order to establish extinguishment of an Aboriginal right is "high
indeed". She said that the government must specifically address the Aboriginal activity in question
and must explicitly extinguish the Aboriginal right. 83 She also indicated that the burden on the
accused to demonstrate a prima facie infringement of an existing Aboriginal right is fairly low. In
her view, the accused need only show that, on its face, the legislation comes into the conflict with
the Aboriginal right either because of its object or its effects.84
McLachlin 1. also dissented. She held that the test for determining whether an Aboriginal right to
sell herring spawn on kelp existed was whether the Heiltsuk traditionally sustained themselves from
this particular area of the sea.85 If so, they had a right to continue to do so. The right was limited
to securing what was traditionally derived from the resource, namely, basic housing, transportation,
clothing and other amenities or a moderate livelihood.86 While the Heiltsuk had historically been
involved in large scale trading ofherring spawn on kelp, in her view, they did not do so in order to
accumulate wealth. Therefore, their Aboriginal right was not a right to sell herring spawn on kelp
for commercial profit but was a right only to sell in order to secure a moderate livelihood.87
McLachlin 1. also held that the right was not extinguished. She then turned to the issue of
infringement. She said that the Crown could rebut the presumption of infringement if it could
demonstrate that the regulatory regime as a whole accommodated the exercise ofthe Aboriginal right
83 Ibid., at p. 809.
84 Ibid., at pp. 809-811.
85 Ibid., at p. 813.
86 Ibid., at p. 813.
87 Ibid., at pp. 816-817.
- 32-
in question. 88 In this case, there was insufficient evidence on this point and, therefore, she would
have ordered a new trial.
La Forest J. also dissented. While the agreed with the framework articulated by the Chief Justice
in Van der Peet pertaining to the nature and scope of Aboriginal rights, he believed that in this case
the Heiltsuk fishermen were not exercising an Aboriginal right. He also held that if the Heiltsuk ever
possessed an Aboriginal right to sell herring spawn on kelp, it had been extinguished.
La Forest J. agreed that the Heiltsuk had an Aboriginal right to barter and trade herring spawn on
kelp to a certain degree. However, he said that this barter and trade was integral to the distinctive
culture of the Heiltsuk because of the context in which it occurred, which was sharing the resource
with neighbouring tribes. Without this context, in his view, any trade or barter of herring spawn on
kelp did not form an integral part of the distinctive culture of the Heiltsuk and, therefore, was not
the exercise of an Aboriginal right. The herring spawn on kelp fishery developed in the 1970's in
response to Asian demands. In the opinion of La Forest J., the attempted sale of herring spawn on
kelp by the accused to a Japanese buyer was "light years away" from the ancient Heiltsuk practice
of sharing and trading the resource and, therefore, was not a legitimate exercise of an Aboriginal
right. 89
La Forest 1. also held that any Aboriginal right to sell herring spawn on kelp had been extinguished.
The Crown relied upon Order-in-Council No. 2539 (1917) which prohibited Indians from selling fish
while recognizing their right to fish for food. La Forest 1. said that when the Crown has specifically
chosen to address the issue of the translation of Aboriginal practices into statutory rights and has
expressly decided to limit the scope of those rights, then it follows that the Aboriginal practices that
were specifically excluded were thereby extinguished.90 He also held that the Crown was not
88
89
90
Ibid., at p. 818.
Ibid., at pp. 785-790.
Ibid., at p. 795.
- 33 -
required to specifically acknowledge the existence of an Aboriginal right in order for its legislation
to evidence a clear and plain intention to extinguish that right. He said that this would place an
unrealistic burden on the Crown. 91
G. R. V. ADAMS92
The accused is a Mohawk from the Akwesasne Reserve. He caught 300 pounds of perch in Lake
St. Francis with a seine net made of very fine mesh. He did not have a license to fish in Lake St.
Francis. He could have obtained a license but had not applied for one. Licenses were issued in the
discretion of the Minister. He was, accordingly, charged with fishing without a license contrary to
section 4(1) of the Quebec Fishery Regulations. He claimed an Aboriginal right to fish in the lake.
He claimed that this Aboriginal right existed either as an aspect of Mohawk Aboriginal title to the
area or, alternatively, as a free-standing Aboriginal right.93
The accused was convicted at trial. The court found that the Mohawk did have Aboriginal title to
the area but that it had been extinguished by the flooding of the land that occurred in 1845 as a result
ofthe construction of the Beauharnois canal because the beds ofall navigable waters were statutorily
vested in the Crown. However, ·the Court found that the Mohawk did have a free-standing
Aboriginal right to fish in the lake as it was part of their traditional hunting and fishing grounds.
This right had not been extinguished. The accused was nevertheless convicted because in the court's
opinion his rights were not absolute and the regulation in question was reasonable.
An appeal to the Quebec Superior Court was dismissed. The court reached the same conclusion as
the trial judge, although for slightly different reasons. A further appeal to the Quebec Court of
Appeal was also dismissed. The majority held that the Mohawk did not have Aboriginal title to the
91
92
93
Ibid., at pp. 796-797.
[1996] 3 S.C.R. 101.
Ibid., at pp. 108-109.
- 34-
area in question because they only occasionally exploited it. In any event, any Mohawk Aboriginal
title was extinguished either by the flooding that occurred in 1845 or by the surrender of the adjacent
lands that took place in 1888. The Court held that an Aboriginal right to fish could not exist absent
Aboriginal title. Rothman l.A. dissented. He held that an Aboriginal right to fish could exist
independently of Aboriginal title. In this case, he held that such an Aboriginal right did exist
because the Mohawk carried out substantial fishing activities in the area for a long time prior to the
arrival of Europeans. He said that this right had not been extinguished and that it was infringed by
the regulations. He also concluded that the regulations were not justifiable.94
The Supreme Court allowed the appeal. Lamer C.J. wrote the majority judgment. He held that
Aboriginal rights do not solely exist where a claim to Aboriginal title has been made out. He said
that where an Aboriginal group has shown that a particular activity, custom or tradition was integral
to the distinctive culture of the group, then even if they have not shown that their occupation and use
of the land was sufficient to support a claim oftitle to the land, they will have demonstrated that they
have an Aboriginal right to engage in the activity. In his view, Aboriginal rights are not inexorably
linked to Aboriginal title. 'Aboriginal rights arise from the prior occupation ofthe land by Aboriginal
peoples, but they also arise from the prior social organizations and distinctive cultures ofAboriginal
,peoples.95 However, he also noted that Aboriginal rights were often "site specific" and could only
be exercised on particular lands, even though the Aboriginal group had no Aboriginal title to those
lands.96
In the Chief Justice's view, the accused had demonstrated that fishing in Lake St. Francis was an
element of a custom, practice or tradition integral to the distinctive culture of the Mohawk prior to
their first contact with Europeans. The area was part ofa Mohawk hunting and fishing ground. The
94
95
96
Ibid., atpp. 109-116.
Ibid., at pp. 117-119.
Ibid., at p. 119.
- 35 -
Mohawk fished for food in the lake historically and this was a significant part of their lives.
Therefore, the accused had a free-standing Aboriginal right to fish for food in Lake St. Francis.
Lamer C.J. then addressed the issue of extinguishment. He held that the submersion of the lands in
1845 and the surrender of the adjacent lands in 1888 were sufficient to demonstrate a clear and plain
intention on the part ofthe Crown to extinguish any Aboriginal title of the Mohawk to the area but
that neither was sufficient to demonstrate a clear and plain intention to extinguish Mohawk
Aboriginal fishing rights in the area.'n
Lamer C.J. then considered the issue of infringement. He held that the broader regulatory regime
and its impact on the accused's Aboriginal rights had to be taken into account at this stage of the
analysis.98 He held that the Aboriginal right was'infringed. While the accused could obtain a license
from the Minister to fish for food with a net in Lake St. Francis, the Minister had an unfettered
discretion with respect to whether or not to issue the license. In the Chief Justice's view, some
explicit guidance for the exercise of this discretion had to be set out in the regulations in order for
the statutory regime to be consistent with the Crown's fiduciary obligations to Aboriginal peoples.99
The Crown had not attempted to show that the regulations were justified. Therefore, the appeal was
allowed.
L,Heureux-Dube J. wrote a concurring judgment. She agreed with the Chief Justice that Aboriginal
rights can exist independently ofAboriginal title. She said that Aboriginal rights relate to Aboriginal
title and the component elements of Aboriginal title -- Aboriginal rights to hunt, fish and trap - as
well as to other matters, not related to land, which form part of the distinctive cultures of Aboriginal
97
98
99
Ibid., at p. 132.
Ibid., at pp. 130-131..Ibid., at p. 132.
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peoples. loo She agreed with the Chief Justice that the accused had established an Aboriginal right
to fish for food in Lake St. Francis, although she disagreed with the test that he had laid down in Van
der Peet and preferred the test that she had laid down in her dissenting opinion in that case.
H. R. v. COTE 101
The accused is an Algonquin from the Maniwaki Reserve. In July, 1984, he entered the Bras-Coupe
Desert Controlled Harvest Zone with several young people. While there, he fished in the waters of
Desert Lake. He was fishing to demonstrate traditional Algonquin fishing practices to the young
people. He did not have a fishing license. He had also refused to pay the access fee for motor
vehicles entering the Zone. He was accordingly charged with fishing without a license contrary to
section 4(1) of the Quebec Fishery Regulations (a federal regulation) and with failing to pay the
access fee contrary to the Controlled Harvest Zone Regulations (a provincial regulation). He
claimed that the regulations did not apply to him because he was exercising an Aboriginal right or
a Treaty right to fish in the Zone. He claimed that the Aboriginal right existed as an incident of
Algonquin Aboriginal title to the land.
He was convicted at trial. Judge Barriere held that the Algonquin had an Aboriginal right to fish in
the Zone but that the regulations in question did not unreasonably interfere with that right. The
conviction was upheld on appeal to the Quebec Superior Court. A further appeal to the Quebec
Court of Appeal was also dismissed. The majority of the Court of Appeal held that the French
colonial regime did not recognize Aboriginal title and, therefore, Aboriginal title within the historical
boundaries ofNew France had been extinguished by the imposition ofFrench sovereignty and could
not receive constitutional protection from· section 35(1). The court, however, found that the
Algonquin had a Treaty right to fish for subsistence in the Zone. The access fee and the licensing
requirement infringed the Treaty right. However, the infringements were minor in nature and were
100
101
Ibid., at p. 136.
[1996] 3 S.C.R. 139.
- 37 -
justified. Delisle lA. dissented on the issue of justification. In his opinion, the licensing
requirement did not sufficiently accommodate the exercise of Aboriginal rights by the Algonquin
because licenses were only available in the unguided disctetion of the Minister. ,02
Lamer C.J. wrote the majority decision. He began by noting that the characterization of the right in
issue as either an Aboriginal right or a Treaty right was not a matter of significant consequence
because the Sparrow tests for infringement and justification applied equally to both species of
rights. 103 He also confirmed that Aboriginal rights may exist independently of Aboriginal title. The
accused could establish an Aboriginal right to fish within the Zone ifhe could show that fishing in
the Zone was an element of a custom, practice or tradition integral to the distinctive culture of the
Algonquin prior to their first contact with Europeans or, to put it another way, if he could show that
fishing within the Zone was a central or significant feature ofthe distinctive culture of the Algonquin
people prior to contact. 104 The accused was not required to establish sufficient occupation and
control of the area to support a claim of Algonquin Aboriginal title. Lamer C.J. did, however, note
that an Aboriginal right will often be site specific and, therefore, can only ,be exercised in a particular
locale. In this case, Lamer C.J. found that an Aboriginal right existed because the Algonquin
frequented this area prior to contact and fishing was an important source ofsustenance for them. The
Aboriginal right to fish for food included the incidental right to teach traditional fishing practices
to younger members of the band. 105 Lamer C.J. also held that the imposition of French sovereignty
in the area ofNew France did not negate the potential existence of Aboriginal rights in the area. If
customs, practices and traditions which were integral parts of the distinctive cultures of Aboriginal
peoples inhabiting New France continued during and after French rule then, in his opinion, those
customs, practices and traditions could form the foundation of existing Aboriginal rights.
102 Ibid., at pp. 151-162.
103 Ibid., at p. 164.
104 Ibid., at p. 177.
105 Ibid., at p. 176.
- 38 -
Lamer C.J. also held that the Aboriginal right to fish for food in the Zone was infringed by the
licensing requirement set out in the Quebec Fishery Regulations. While the court held in Nikal that
a licensing requirement will not necessarily constitute a prima facie infringement of an Aboriginal
fishing right, in this case, the license was only available in the discretion of the Minister. No criteria
was prescribed in the regulations to guide or structure the exercise of this discretion. 106 Therefore,
the licensing requirement constituted a prima facie infringement of the Aboriginal right.
The provincial regulation requiring payment of an access fee before entering the Zone with a motor
vehicle, however, did not infringe the right. While a regulation conditioning the exercise of an
Aboriginal right upon the payment of a user fee may infringe the right, in this case, the fee was
modest, it was not revenue generating and it was dedicated to the cost of up-keep of the roads within
the Zone. Therefore, it facilitated exercise of the right rather than restricting it. 107
Lamer C.J. then considered the issue ofjustification with respect to the charge under the Quebec
Fishery Regulations. He held that the licensing requirement was not justified. The Crown's
objective seemed to be facilitation of sports fishing which was not a sufficiently compelling and
substantial reason to override Aboriginal rights. Also, the regulations did not provide any priority
to Aboriginal food fishing.
Finally, Lamer C.J. also noted that the accused advanced a Treaty rights argument as well as an
Aboriginal rights argument. He said that it was unnecessary to consider the Treaty rights argument
in detail because of his conclusions with respect to the existence of an Aboriginal right. However,
he noted that even if a provincial regulation survived a challenge under section 35(1) of the
Constitution Act, 1982, that section 88 of the Indian Act would still have to be taken into account
to determine if the provincial law applied. Section 88 provides statutory protection for Treaty rights
against interference by provincial laws. Its significance has been greatly limited since the advent
/
106
107
Ibid., at pp. 186-187.
Ibid., at pp. 187-189.
- 39 -
of section 35(1). However, Lamer C.J. noted that section 88 may provide a broader protection for
Treaty rights than section 35(1) because it contains no provision for justification (although, he said
that this provision may exist by implication). 108 No final conclusions on this point were reached.
Both La Forest J. and L'Heureux-DuM 1. wrote short separate concurring judgments.
IV. INDIAN FISHING RIGHTS IN THE PRAIRIE PROVINCES
There is also one recent decision from the Albert Court of Appeal concerning Indian fishing rights
that is significant. In R. v. Gladue,109 the accused was a member of the Beaver Lake Indian Band
which is a party to Treaty No.6. He sold small quantities of fish to an undercover Wildlife Officer
on four occasions.. At the time of the sales, he had a domestic fishing licence issued under the
Alberta Fishery Regulations. He did not have a commercial fishing licence, although he had held
one in the past. The Accused was charged with illegally selling fish contrary to section 18 of the
Alberta Fishery Regulations. He was convicted at trial in the Alberta Provincial Court. His
conviction was upheld on appeal to the Alberta Court of Queen's Bench. A further appeal to the
Alberta Court of Appeal was dismissed.
In each of the three Courts, it was held that the Accused's treaty right to hunt, fish and trap included
the right to fish for commercial purposes. The Courts relied upon the decision of the Supreme Court
in Horseman 110 which held that a similar treaty included the right to hunt for commercial purposes.
The Court ofAppeal, however, agreed only that "some small scale commercial fishing" was included
within the treaty right. 111 RosIak 1. in the Court ofQueen's Bench held that the requirement that all
commercial fishermen be licensed as set out in the Alberta Fishery Regulations was applicable to
108 Ibid., at pp. 190-193.
109 [1996] 1 C.N.L.R. 153 (Alta. C.A.).
110 Supra, footnote 11.
) III Supra, footnote 109, at p. 154.
- 40-
the Accused, notwithstanding the existence of his treaty right to fish for commercial purposes.
RosIak J. applied the justificatory test laid down by the Supreme Court in Sparrow I 12. He held that
the purpose of the licensing requirement was related to the proper management and conservation of
the fish resource and that when all of the various interests involved were balanced there was not an
unreasonable interference with the treaty right113. Therefore, the regulation could apply
notwithstanding its infringement of the treaty right.
The Alberta Court of Appeal did not consider the justification issue. Rather, it disposed of the case
by finding that the treaty right to fish commercially had been extinguished by the Natural Resources
Transfer Agreement. The Court accepted the argument made by the federal Department of Justice
that the effect ofparagraph 12 ofthe Transfer Agreement extinguished all commercial treaty hunting,
fishing and trapping rights. The Supreme Court had previously held in Horseman that treaty hunting
rights were extinguished insofar as the application ofprovincial game laws were concerned and that
those rights had been replaced with the rights set out in paragraph 12. However, the Supreme Court
had earlier held in the Daniels I 14 and Elk l15 cases that paragraph 12 rights could not be relied upon
to protect an Indian hunter or fisherman from prosecution under a federal law such as the Migratory
Birds Convention Act or the Fisheries Act. Paragraph 12 rights provide protection"only against the
application of provincial game laws. Therefore, the Accused argued in this case that his original
treaty hunting, fishing and trapping rights survived the Transfer Agreement unimpaired and were
now constitutionally protected by Section 35 of the Constitution Act, 1982. Therefore, he asserted
that his treaty hunting and fishing rights could be set up as a defence to a prosecution under a federal
law even though they could not be set up as a defence to a prosecution under a provincial game law.
This argument had been accepted by RosIak J. in the Court of Queen's Bench. However, the Court
of Appeal rejected the argument and held that it was "incongruous" to consider that certain treaty
112 Supra, footnote 16.
113 Ibid., at p. 154.
114 Supra, footnote 8.
115 [1990] 2 S.C.R. 166.
)- 41 -
hunting, fishing and trapping rights survived the Transfer Agreement as against the federal Crown
but not as against the provincial Crown. Therefore, the Court of Appeal decided that both
commercial hunting and commercial fishing rights were extinguished by the Transfer Agreement I 16.
There was, therefore, no need to consider the Sparrow justificatory test to determine if the
regulations in question could apply because the Accused did not have an existing treaty right that
could be infringed by the regulations. The regulations applied to him and his conviction was upheld.
An application for leave to appeal this decision has been filed with the Supreme Court. I I?
v. METIS HUNTING AND FISHING RIGHTS
During the past year, the question of Metis hunting and fishing rights has received considerable
publicity in Saskatchewan. In August, 1996 MacLeod J. of the Court of Queen's Bench decided in
R. v. Grumbo l18 that Metis people should be considered to be "Indians" for the purposes ofparagraph
12 ofthe Transfer Agreement and, therefore, were constitutionally entitled to exercise all ofthe same
hunting rights as Indians~ This decision runs counter to the earlier decision of the Saskatchewan
Court of Appeal in R. v. Laprise I 19 which held that "Indian" in paragraph 12 ought to be interpreted
, as meaning a person registered as an Indian under the Indian Act or entitled to be registered as an
Indian under the Indian Act. The Grumbo decision has caused considerable confusion with respect
to the application of provincial wildlife laws primarily because there is no clear understanding of
exactly who a Metis person is. The Crown has appealed the decision. The appeal wi111ikely be
heard some time in Mayor June.
- 42-
Defence counsel in Grumbo argued that "Indian" in paragraph 12 should be given the same meaning
as "Indian" in sectio_n 91 (24) of the Constitution Act, 1867 which grants Parliament exclusive
legislative jurisdiction over "Indians and Lands Reserved for the Indians". The Crown agreed that
"Indian" in section 91 (24) included Metis people, but argued that "Indian" in paragraph 12 should
be given a different meaning. The Crown's argument focussed primarily on the historical context
surrounding paragraph 12. The Crown argued that the common meaning of the word "Indian" in
1930 did not include Metis people and that the purpose of paragraph 12 was to safeguard Treaty
hunting rights, not to bestow special hunting privileges upon the Metis who were not seen as having
any Aboriginal or Treaty rights to hunt, fish or trap at the time that the Transfer Agreement was
entered into.
A few months earlier, Judge Meagher of the Provincial Court held in R. v. Morin and Daigneault l20
that the Metis people ofNorthwestern Saskatchewan have an existing Aboriginal right to fish. He
held that the Metis had been established in this part of the province since the early 1800's and that
fish had always been an important part of their diet. The Crown argued that any Metis Aboriginal
fishing rights were extinguished by the scrip issued to individual Metis at the time that Treaty No.
10 was entered into with the Indians of the area. Scrip was a piece of paper that entitled the
individual to either 160 acres of land or $160 which could be applied to the purchase price of land.
Scrip was intended to extinguish the Metis claims to Aboriginal title. Most scrip was sold to
speculators. Judge Meagher held that scrip may have extinguished Metis Aboriginal title but that
it did not extinguish Metis Aboriginal hunting and fishing rights.
At this point, according to Sparrow, Judge Meagher ought to have considered the questions of
infringement and justification. However, he instead turned to section 15 of the Canadian Charter
of Rights and Freedoms. He concluded that the Indian and Metis peoples of Northwestern
Saskatchewan were "similarly situated". In his view, the division of the Aboriginal community of
Northwestern Saskatchewan into two groups at the time of Treaty making was artificial and
120 [1996] 3 C.N.L.R. 157 (Sask. Provo Ct.).
- 43 -
arbitrary. He said that the two groups were not "similarly treated" by the Saskatchewan Fishery
Regulations because the regulations required non-Indians, including Metis people, to pay a fee of
$5 for domestic fishing licence, while Indians could obtain domestic fishing licenses for free. He
held that this distinction constituted discrimination against the Metis and, therefore, violated the
equality guarantees of section 15 of the Charter.
The Crown has appealed this decision. The appeal is to be heard on May 1st in the Court of Queen's
Bench in Battleford.
The Courts in other provinces have also considered questions concerning Metis hunting and fishing
rights in recent years. The Courts in Manitoba and Alberta have taken quite different approaches
to this issue. In Alberta, in R. v. Ferguson l21 , the Court of Queen's Bench held that "Indian" in
paragraph 12 included "non-Treaty Indians" as defined by the 1927 Indian Act. The Crown had
argued that "Indian" in paragraph 12 meant "Indian" as defined by the 1927 Indian Act. This term
was essentially limited to Treaty Indians. The Court in Ferguson interpreted non-Treaty Indian to
mean anyone with Indian blood who followed the "Indian mode oflife". According to this decision,
many Metis people would be included within the scope of paragraph 12.
The Courts in Manitoba, on the other hand, have rejected any interpretation of"Indian" in paragraph
12 which would include Metis. In R. v. Blais122, the Manitoba Provincial Court specifically rejected
this argument and expressly refused to follow the decision in Grumbo. However, Metis Aboriginal
hunting rights have been recognized in Manitoba. In R. v. MacPherson and Christie l23 , the Court
of Queen's Bench upheld an earlier finding by the Provincial Court that certain Metis who lived in
northern Manitoba and who followed a lifestyle similar to Indians had existing Aboriginal rights to
hunt which were protected by section 35(1).
121
122
123
[1994] 1 C.N.L.R. 117 (Alta. Q.B.); affinning [1993] 2 C.N.L.R. 148 (Alta. Provo Ct.).
Manitoba Provincial Court, August 22nd, 1996, unreported.
[1994] 2 C.N.L.R. 137 (Man. Q.B.); reversing [1992] 4 C.N.L.R. 144 (Man. Provo Ct.).
- 44-
The cases concerning Metis hunting and fishing rights from Saskatchewan, Alberta and Manitoba
are quite contradictory and the state of the law remains uncertain. The upcoming appeals of the
Saskatchewan cases will hopefully shed some light on these questions.
VI. CONCLUSION
Only the Badger case will have a direct and immediate impact upon hunting and fishing rights in
Saskatchewan. It indicates that the Treaty hunting rights clauses have a legal significance that has
not been previously considered. To the extent that Treaty hunting and fishing rights that have not
been recognized in the past can co-exist with paragraph 12, those rights may now be recognized and
accorded constitutional protection. Badger has already spawned at least one challenge to the
province's Road Corridor Game Preserve regulations. 124
However, in my opinion, in the final analysis the impact of Badger will not significantly increase
the scope of Indian hunting rights in Saskatchewan. The Court made it very clear that commercial
hunting rights, although contained in the original Treaties, were not being revived. In my opinion,
there are no significant untapped nuggets buried in the Treaty hunting rights clauses that can now
, be relied upon by Indian hunters to give them additional protection from the applicati<;m of either
federal or provincial laws. Furthermore, the category of privately owned lands affected by Badger
is, in my opinion, quite limited. Only privately owned lands that are the equivalent of unoccupied
Crown lands will be open to Indian hunters. Lands that are cultivated, fenced, cleared or simply
posted will remain off limits for Indian hunters without the permission of the landowner.
Badger's most lasting legacy may, in fact, be to limit, rather than to expand, the scope of Indian
hunting rights in Saskatchewan. The Court's decision to permit provincial laws to apply to Indians
hunting within the protection of paragraph 12 if the Sparrow test can be met was a significant and
somewhat unexpected development. As noted earlier, paragraph 12 was always considered to give
124 R. v. Crowe and Ironchilds, Saskatchewan Provincial Court, March 26th, 1997, unreported.
)- 45 -
Indians absolute immunity from all provincial game laws irrespective of any arguments that could
be made in favour of their application for conservation or other reasons. It is now clear that the
Crown can argue for the application of provincial game laws, such as its new endangered species
legislation125, to Indians hunting within the protection of paragraph 12.
The remaining decisions concerning Aboriginal rights will have a direct impact on the ongoing
litigation concerning Metis Aboriginal hunting and fishing rights. They will also have important
ramifications outside of the realm of hunting and fishing rights. The Supreme Court has, to a large
degree, clarified what Aboriginal rights are. A clear test has been set out - is the activity in question
an element ofa custom, practice or tradition that was an integral part of the distinctive culture of the
Aboriginal group prior to its first contact with Europeans? The Court has also clearly indicated that
Aboriginal rights are not confined to Aboriginal title, Aboriginal hunting and fishing rights or other
land-based activities, but may also include other aspects of Aboriginal culture. The Court has
clarified and to some extent refined the Sparrow tests concerning infringement and justification. The
road map has now been clearly laid out. The challenge will be to successfully follow that map in
future cases and to adapt it to meet new issues as they arise.
* P. Mitch McAdam, Constitutional Law Branch, Saskatchewan Departmentof Justice. The opinions expressed in this paper are mine alone and do notnecessarily represent the views of the Attorney General for Saskatchewan orthe Department ofJustice. My thanks to Ken Tyler ofthe Constitutional LawBranch of the Manitoba Justice Department for sharing with me a similarpaper that he prepared for the Mid-Winter Meeting of the Manitoba BarAssociation.
) 125 Bill No. 42 of 1997 (The Wildlife Act, 1997).
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