R. v. Badger (W.C.) et al., (1996) 195 N.R. 1 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 03, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 195 N.R. 1 (SCC);181 AR 321;116 WAC 321;30 WCB (2d) 211;105 CCC (3d) 289;JE 96-737;1996 CanLII 236 (SCC);195 NR 1;[1996] 2 CNLR 77;[1996] 1 SCR 771;[1996] SCJ No 39 (QL);[1996] 4 WWR 457;37 Alta LR (3d) 153;EYB 1996-66856;133 DLR (4th) 324;[1996] ACS no 39

R. v. Badger (W.C.) (1996), 195 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Wayne Clarence Badger (appellant) v. Her Majesty The Queen (respondent)

Leroy Steven Kiyawasew (appellant) v. Her Majesty The Queen (respondent)

Ernest Clarence Ominayak (appellant) v. Her Majesty The Queen (respondent) and the Attorney General of Canada, The Attorney General of Manitoba, The Attorney General for Saskatchewan, The Federation of Saskatchewan Indian Nations, The Lesser Slave Lake Indian Regional Council, The Treaty 7 Tribal Council, The Confederacy of Treaty Six First Nations, The Assembly of First Nations and The Assembly of Manitoba Chiefs (interveners)

(23603)

Indexed As: R. v. Badger (W.C.) et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory

and Iacobucci, JJ.

April 3, 1996.

Summary:

Three Cree Indians (accused) covered by Treaty No. 8 were charged with hunting offences on privately owned lands. The accused claimed a right to hunt on such lands under the Treaty and that s. 35(1) of the Constitu­tion Act afforded them constitu­tional protec­tion. The trial judge convicted the accused, on the ground that their right to hunt on privately owned lands had been extinguish­ed. The Indians appealed.

The Alberta Court of Queen's Bench dis­missed the appeal. The accused appealed.

The Alberta Court of Appeal, in a judg­ment reported 135 A.R. 286; 33 W.A.C. 286, dismissed the appeals. The accused appealed.

The Supreme Court of Canada allowed Ominayak's appeal and ordered a new trial. The court dismissed the appeal respecting the two other accused.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - Scope of rights - Limitations - Conservation - [See third Fish and Game - Topic 850 ].

Fish and Game - Topic 805

Indian, Inuit and Métis rights - Scope of rights - Limitations - Conservation - By the terms of Treaty No. 8 and paragraph 12 of the Natural Resources Transfer Agreement, provincial game laws applied to Indians as long as they were aimed at conserving the supply of game - The Supreme Court of Canada stated that the Wildlife Act licensing provisions were in part, but not wholly, directed towards conservation - It had to be determined whether the manner in which the licensing scheme was administered conflicted with the hunting rights provided under the Treaty and the NRTA - The appropriate test was set out in R. v. Sparrow, which allowed aboriginal rights to be overridden if the government could justify the in­fringement - The court stated that "prov­incial regulations pertaining to conserva­tion will be valid so long as they are not clearly unreasonable in their application to aboriginal people." - The court set out the Sparrow test - See paragraphs 50 to 79.

Fish and Game - Topic 806.1

Indian, Inuit and Métis rights - Limitations - Licensing - [See third Fish and Game - Topic 850 ].

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt for food - Extent of right - Treaty No. 8 gave Indians the right to hunt on all lands except those required or taken up for settlement, min­ing, etc., subject to federal regulation - The Constitution Act, 1930, adding a clause to the Natural Resources Transfer Agreement (NRTA), provided that the Indian right to hunt applied to unoc­cupied Crown land and other lands to which they had a right of access, subject to provincial gaming laws - The Supreme Court of Canada stated that the NRTA did not extinguish and replace the Treaty No. 8 right for food - The NRTA extinguished treaty protection of the right to hunt com­mer­cially, but expanded the right to hunt for food - The NRTA merely modified and altered the existing treaty right to hunt for food - See paragraphs 24 to 29.

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands - Unoccu­pied - Badger was convicted under s. 27(1) of the Wildlife Act with hunting out of season - The Natural Resources Trans­fer Agreement constitutionally guaranteed the Indian right to hunt for food on unoc­cupied Crown land - Badger shot a moose on land covered with second growth wil­low and scrub - Although there were no fences or signs posted, a farm house was located only one quarter of a mile away and did not appear abandoned - The Supreme Court of Canada affirmed Bad­ger's conviction - It was clear that the land was visibly being used (i.e., occupied) - Badger's treaty right to hunt for food did not extend to the land in question - Ac­cordingly, the limita­tions on hunting set out in the Wildlife Act did not infringe Badger's existing hunting rights and he was properly convicted - See paragraph 48.

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands - Unoccu­pied - Kiyawasew was convicted of hunt­ing without a licence contrary to s. 26(1) of the Wildlife Act - The Natural Resources Transfer Agreement constitu­tionally guaranteed the Indian right to hunt for food on unoccupied Crown land - He was hunting on a snow-covered field - Although there were no fences, there were run-down barns nearby and signs were posted on the land - The evidence indi­cated that a fall crop had been harvested from the field - The Supreme Court of Canada affirmed Kiyawasew's conviction - It was clear that the land was visibly being used (i.e., occupied) - Kiyawasew's treaty right to hunt for food did not extend to the land in question - Accordingly, the limita­tions on hunting set out in the Wildlife Act did not infringe Kiyawasew's existing hunting rights and he was properly con­victed - See paragraph 48.

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands - Unoccu­pied - Ominayak was convicted of hunting without a licence contrary to s. 26(1) of the Wildlife Act - The Natural Resources Transfer Agreement (NRTA) constitution­ally guaranteed the Indian right to hunt for food on unoccupied Crown land - Omina­yak was hunting on uncleared muskeg - No fences or signs were present - No buildings were located near the site of the kill - Although the land was privately owned, it was not being put to any visible use which would be incompatible with the Indian right to hunt for food - The Supreme Court of Canada held that Omi­nayak was exercising his constitutional right to hunt for food on "unoccupied Crown" land - The court stated that the s. 26(1) licensing scheme prima facie infringed the constitutional right of Indians to hunt for food - However, that constitu­tional right must be balanced against the provincial right to pass laws for conserva­tion - Whether provincial laws were jus­tified was to be determined applying the principles set out in R. v. Sparrow - In the absence of evidence respecting justifica­tion, the court ordered a new trial - See paragraphs 48 to 79.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - Extinguish­ment - The Supreme Court of Canada stated that "the onus of proving that a treaty or aboriginal right has been extin­guished lies upon the Crown. There must be 'strict proof of the fact of extin­guish­ment' and evidence of a clear and plain intention on the part of government to extinguish treaty rights." - See para­graph 22.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - Extinguish-ment - [See Fish and Game - Topic 843 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - The Supreme Court of Canada stated that "a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agree­ment whose nature is sacred. ... Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpre­tations of treaties and statutory provisions which have an impact upon treaty or abo­riginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of 'sharp dealing' will be sanc­tioned. ... Third, any ambiguities or doubt­ful expressions in wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. ... Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be 'strict proof of the fact of extinguishment' and evidence of a clear and plain intention on the part of govern­ment to extinguish treaty rights." - See paragraph 22.

Cases Noticed:

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 6].

R. v. Cardinal (1977), 4 A.R. 1; 36 C.C.C.(2d) 369 (C.A.), refd to. [para. 6].

R. v. Ominayak (1990), 108 A.R. 239 (C.A.), refd to. [para. 6].

R. v. Horse; R. v. Standingwater, [1988] 1 S.C.R. 187; 82 N.R. 206; 65 Sask.R. 176, refd to. [para. 10].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, appld. [para. 18].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 22].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 22].

R. v. Taylor (1981), 34 O.R.(2d) 360 (C.A.), refd to. [para. 22].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 22].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 22].

Nishga Tribal Council v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 22].

Calder v. Attorney General of British Columbia - see Nishga Tribal Council v. British Columbia (Attorney General).

R. v. Frank, [1978] 1 S.C.R. 95; 15 N.R. 487; 4 A.R. 271, refd to. [para. 26].

R. v. Wesley, [1932] 2 W.W.R. 337; 26 Alta. L.R. 433 (C.A.), refd to. [para. 26].

R. v. Prince, [1964] S.C.R. 81, refd to. [para. 26].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, refd to. [para. 27].

R. v. Myran, [1976] 2 S.C.R. 137; 5 N.R. 551; 23 C.C.C.(2d) 73, refd to. [para. 27].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620; 3 Man.R.(2d) 338, refd to. [para. 31].

R. v. Sutherland, Wilson et al. and Canada (Attorney General), [1980] 2 S.C.R. 451; 35 N.R. 361; 7 Man.R.(2d) 359, refd to. [para. 31].

R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), refd to. [para. 40].

R. v. Mirasty, [1942] 1 W.W.R. 343 (Sask.), refd to. [para. 40].

R. v. Strongquill (1953), 8 W.W.R.(N.S.) 247 (Sask. C.A.), refd to. [para. 40].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149, refd to. [para. 40].

R. v. Bartleman (1984), 55 B.C.L.R. 78 (C.A.), refd to. [para. 44].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 50].

R. v. Sikyea, [1964] 2 C.C.C. 325 (N.W.T.C.A.), affd. [1964] S.C.R. 642, refd to. [para. 58].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 59].

R. v. Eninew; R. v. Bear (1984), 32 Sask.R. 237; 12 C.C.C.(3d) 365 (C.A.), refd to. [para. 60].

R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 61].

R. v. Napoleon, [1986] 1 C.N.L.R. 86; 21 C.C.C.(3d) 515 (B.C.C.A.), refd to. [para. 70].

R. v. Fox (J.T.), [1994] 3 C.N.L.R. 132; 71 O.A.C. 50 (C.A.), refd to. [para. 70].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18; 36 C.R.R. 305, refd to. [para. 97].

Education Act Amendment Act, Reference Re - see Reference Re Roman Catholic Separate High Schools Funding.

Statutes Noticed:

Constitution Act, 1930, sect. 1 [para. 13].

Constitution Act, 1982, sect. 35(1) [para. 15].

Natural Resources Transfer Agreement, para. 12 [para. 25].

Treaty No. 8, generally [para. 12].

Wildlife Act, S.A. 1984, c. W-9.1, sect. 26(1), sect. 27(1) [para. 16].

Wildlife Act Regulations (Alta.), Wildlife Regulations, Reg. 50/87, sect. 2(2) [para. 68].

Wildlife Regulations - see Wildlife Act Regulations (Alta.).

Authors and Works Noticed:

Daniel, Richard, The Spirit and Terms of Treaty Eight, in The Spirit of the Alberta Indian Treaties (1979), pp. 47 to 100 [para. 36].

Friesen, Jean, Grant Me Wherewith To Make My Living (1985), generally [para. 33].

Fumoleau, René, As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939, pp. 73 to 100 [para. 36].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed.), p. 1183 [para. 97].

Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba (1991), p. 1068 [para. 33].

Morris, Alexander, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), pp. 29, 96, 218 [para. 37]; 338 to 342 [para. 33].

Counsel:

Leonard Mandamin and Alan D. Hunter, Q.C., for the appellants;

Robert J. Normey, and Margaret Unsworth, for the respondent;

I.G. Whitehall, Q.C., and R. Stevenson, for the intervener, the Attorney General of Canada;

Kenneth J. Tyler, for the intervener, the Attorney General of Manitoba;

P. Mitch McAdam, for the intervener, the Attorney General for Saskatchewan;

Mary Ellen Turpel, Donald E. Worme and Gerry Morin, for the intervener, the Federation of Saskatchewan Indian Nations;

Priscilla Kennedy, for the intervener, the Lesser Slave Lake Indian Regional Council;

Gerard M. Meagher, Q.C., and Eugene J. Creighton, for the intervener, the Treaty 7 Tribal Council;

Edward H. Molstad, Q.C., James A. O'Reilly, and Wilton Littlechild, for the intervener, the Confederacy of Treaty Six First Nations;

Peter K. Doody, and John E.S. Briggs, for the intervener, the Assembly of First Nations;

Jack R. London, Q.C., and Martin S. Minuk, for the intervener, the Assembly of Manitoba Chiefs.

Solicitors of Record:

Mandamin & Associates, Calgary, Alberta, for the appellants;

Attorney General for Alberta, Edmonton, Alberta, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Wardell, Worme, Piché & Missens, Saskatoon, Saskatchewan, for the intervener, the Federation of Sas­katchewan Indian Nations;

Parlee, McLaws, Edmonton, Alberta, for the intervener, the Lesser Slave Lake Indian Regional Council;

Walsh, Wilkins, Calgary, Alberta, for the intervener, the Treaty 7 Tribal Council;

Molstad, Gilbert, Edmonton, Alberta, for the intervener, the Confederacy of Treaty Six First Nations;

Scott & Aylen, Ottawa, Ontario, for the intervener, the Assembly of First Nations;

Buchwald, Asper, Gallagher, Henteleff, Winnipeg, Manitoba, for the intervener, the Assembly of Manitoba Chiefs.

This appeal was heard on May 1-2, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobuc­ci, JJ., of the Supreme Court of Canada.

On April 3, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (La Forest, L'Heureux-Dubé, Gonthier and Iacobucci, JJ., concur­ring) - see paragraphs 1 to 85;

Sopinka, J. (Lamer, C.J.C., concurring) - see paragraphs 86 to 104.