R v George,

• Judge: Cartwright J,Martland J
• Date: 25 January 1966
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie and Hall JJ.)

Regina

and

George

Treaties — Conclusion and operation of treaties — Effect of municipal legislation — Treaty granting hunting rights — Legislation prohibiting killing of migratory birds — Effect on treaty rights — The law of Canada

Summary: The facts:—The Chippewa Indians had a right to hunt for food under a treaty of 1827. The Migratory Birds Convention Act and the regulations made thereunder prohibited the killing of migratory birds which included ducks. The respondent, a Chippewa Indian, shot two ducks for food and was prosecuted. Section 87 of the Indian Act made all laws of general application in force in any province applicable to Indians in the province subject, inter alia, to the terms of any treaty and any other Act of the Canadian Parliament. The Migratory Birds Convention Act was Federal legislation. The question arose whether the rights under the treaty provided the respondent with a good defence.

Held:—The respondent would be convicted. Section 87 of the Indian Act did not have the effect of making the treaty override Federal legislation.

The following is the text of the judgment of the Court:

Cartwright J. (dissenting):—This appeal is brought, pursuant to leave granted by this Court, from a judgment of the Court of Appeal for Ontario [45 D.L.R. (2nd) 709, [1965] 2 C.C.C. 148, [1964] 2 O.R. 429] dismissing an appeal from an order of Mc-Ruer, C.J.H.C. [41 D.L.R. (2nd) 31 [1963] 3 C.C.C. 109, [1964] 1 O.R. 24] which dismissed an appeal from an order of Magistrate Dunlap acquitting the respondent on a charge that he did on September 5, 1962, at Kettle Point Indian Reserve unlawfully hunt a migratory bird at a time not during the open season specified for that bird in violation of s. 5(1)(a) of the Migratory Bird Regulations, P.C. 1958–1070, SOR/58–308, thereby committing an offence contrary to s. 12(1) of the Migratory Birds Convention Act, R.S.C. 1952, c. 179. Gibson, J.A., dissenting, would have allowed the appeal.

There is no dispute as to the facts. The respondent is an Indian within the meaning of the Indian Act, R.S.C. 1952, c. 149. He is a member of the Chippewa Band residing on the Kettle Point Reserve. On the date stated in the charge he shot two ducks, which were migratory birds, as defined in the Migratory Birds Convention Act and the Regulations made thereunder, in an area described in Schedule A of the Regulations at a time not during the open season for such birds. The ducks were to be used for food and were not to be sold.

On these facts it would appear that the respondent was guilty of the offence charged unless, because he is an Indian and shot the ducks for food on the reserve on which he resided, he is exempt from the provisions of the Migratory Birds Convention Act and Migratory Bird Regulations under which he was charged.

The learned Magistrate was of opinion that s. 87 of the Indian Act made laws of general application applicable to Indians, subject to the terms of any treaty, that the Migratory Birds Convention Act was such a law, that the treaty of July 10, 1827, with the Chippewa Indians to be referred to hereafter reserved to them the right to hunt at any time on the lands reserved in that treaty and, consequently, that the Migratory Birds Convention Act did not apply to the respondent.

McRuer, C.J.H.C., agreed with the view of the learned Magistrate and was further of opinion that the right of the respondent to hunt for food on Kettle Point Reserve was preserved not only by the treaty of 1827 but also by the Proclamation of 1763 and that if it is within the power of Parliament to abrogate that right, a point which the learned Chief Justice left open, that power could be exercised only by legislation expressly and directly extinguishing the right and that it certainly could not be extinguished by Order in Council.

After discussing the case of Dominion of Canada v. Province of OntarioELR, [1910] A.C. 637, the learned Chief Justice said [pp. 36–7]:

He also said:

The judgment of the majority in the Court of Appeal was delivered by Roach, J.A., with whom McLennan, J.A., agreed. The learned Justice of Appeal construed the...