Canada: Agricultural Law Netletter - May 7, 2018


The Saskatchewan Court of Appeal has set aside the decision of a Summary

Appeal Court, and reinstated the acquittal of a Treaty Indian who had been charged with hunting wildlife out of season, and who had killed a moose in a slough on farm land without seeking the permission of the farmer to enter the land. The Court of Appeal reviewed the 1996 decision of the Supreme Court of Canada in R v Badger with respect to the right of Treaty Indians to hunt on private land based on the concept of "visible, incompatible land use" and what this means. Factors related to the nature of the slough, whether there were residences, fences, pasture lands, livestock and cultivated land in the immediate area and whether the land was posted with no hunting or no trespassing signs, were considered. (R. v. Pierone, CALN/2018-012, [2018] S.J. No. 165, Saskatchewan Court of Appeal)


R. v. Pierone;


Full text: [2018] S.J. No. 165;

2018 SKCA 30,

Saskatchewan Court of Appeal,

G.R. Jackson, N.W. Caldwell and L.M. Schwann JJ.A.,

April 27, 2018.

Indian Treaty Rights to Hunt on Private Land -- The Right to Hunt on Private Farm Land

Without the Owner's Consent.

Kristjan Pierone ("Pierone") appealed to the Saskatchewan Court of Appeal from the decision of a Summary Conviction Appeal Court which substituted a conviction for his acquittal at trial on a charge of unlawful hunting under s. 25(1)(a) of the Wildlife Act, 1998, SS 1998, c. W-13.12, "other than at the times, in the places and in the manner prescribed" by that Act.

Pierone is a Treaty Indian. He appealed to the Court of Appeal on the grounds that the Summary Conviction Appeal Court failed to correctly apply the "test" in R v Badger, [1996] S.C.J. No. 39 (SCC), [1996] 1 SCR 771, in which the Supreme Court discussed when an Indian has a right of access to private land for the purposes of exercising Treaty hunting rights.

Pierone is a status Indian from Treaty 5 in northern Manitoba. He lives and works from Swift Current, Saskatchewan which is in Treaty 4 territory.

On September 30, 2015 Pierone shot a bull moose in a slough bottom approximately 70 metres off a roadway on land owned by a farmer.

The farmer did not, at any time, give Pierone permission or consent to hunt on the farm land.

The moose was shot out of season.

Pierone had scouted the land and knew that the land surrounding the slough was used for farming. The crop had been taken off the surrounding land and stubble remained.

Although the kill site was slough at the time, it had been farmed in drier years.

At trial, the Crown argued that Pierone, as a Treaty 5 Indian, was not lawfully entitled to hunt within Treaty 4 territory, or any other lands to which Treaty 4 Indians have a right to access pursuant to the Saskatchewan Natural Resource Act, RSC 1930, c. 41. Section 12 of this Act provides:

12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

The trial judge rejected the Crown's argument that Treaty 5 status precluded Pierone from

exercising his Treaty right to hunt in Treaty 4 territory.

The Crown appealed against the acquittal. The appeal judge concluded that the trial judge

had made a pulpable and manifest error of law in acquitting Pierone.

Decision: Caldwell, JA, Jackson and Schwann, JJA concurring, allowed the appeal, quashed the conviction, and reinstated the dismissal [at para. 46].

Caldwell, JA discussed the decision of Cory, J in R v Badger at para. 8 to 10, stating at para. 8:

[8] ..."An interpretation of the Treaty properly founded upon the Indians' understanding of its terms leads to the conclusion that the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use"...

and that the following points from Cory, J's analysis assist with an understanding of what is meant by the concept of "visible, incompatible land use":

  1. a use must be incompatible with the exercise of the Treaty right in question;
  2. Indians would not have understood the concepts of private and exclusive property ownership separate from actual use;
  3. Indians understood land to have been required or taken-up for settlement "when buildings or fences are erected, land was put into crops, or farm or domestic animals were present";
  4. enduring church missions would also be understood to constitute settlement;
  5. physical signs shaped the Indians' understanding of settlement because they were the manifestations of exclusionary land use; and
  6. the presence of abandoned buildings would not necessarily signify to the Indians that land was taken up in a way that precluded hunting on them.

Caldwell, JA concluded [at para. 10] that it did not matter whether Pierone was a Treaty 4 or a Treaty 5 Indian. The Crown had already conceded before the Summary Conviction Appeal judge that Pierone was lawfully entitled to hunt within Treaty 4.

Caldwell, JA summarized the issue before the Court of Appeal as whether the Crown had established beyond a reasonable doubt that the slough upon which Pierone had shot and killed the moose was "then being put to a visible use that was incompatible with the exercise of his Treaty right to hunt".

Caldwell, JA reviewed the facts in the Badger decision [at para. 31], as well as the facts in R v Ahenakew, [2000] S.J. No. 598, 2000 SKQB 425, 197 Sask R 195 and R v Peeace (1999), 1999 CanLII 12941 (SK QB) 182 Sask R 9 (QB), aff'd 2000 SKCA 16, 189 Sask R 117.

Caldwell, JA concluded [at para. 36] that there was no error in the trial judge's conclusion

and that the evidence established beyond a reasonable doubt that the slough was being put to a visible use that was incompatible with hunting.

Caldwell, JA commented that Treaty 4 and Treaty 5 Indians would reasonably have understood at the time of signing those Treaties that they could continue to exercise their right to hunt on the land in the nature of the slough in question and that they would not, at that time, have appreciated the principles of real property law then or now at play - in particular the good system of land descriptions and boundaries currently used under Saskatchewan's Torrens system [at para. 39].

Caldwell, JA summarized the evidence given by the Conservation Officer at the trial as follows [at para. 39]:

  1. there were no residences in the immediate area;
  2. there were no game preserves in the area;
  3. there were no pasture lands in the area;
  4. the slough was not fenced-off or separated from the agricultural land around it; and
  5. the contour of the slough was "sort of in a semi-circle out into the field".

and Pierone's evidence [at para. 40]:

  1. he did not walk on any cultivated land or drive on any stubble;
  2. he could not see any houses, yard sites, livestock, or equipment from the area of the slough;
  3. he did not think sloughs off the grid roads were owned by farmers;
  4. he would not have shot the moose if it had been on cultivated land; and
  5. there was a farm along the grid road immediately off the highway, but none for the next five or six miles to where the slough was located.

Caldwell, JA also observed that there was no evidence with respect to the caliber or range of Pierone's rifle or whether a bullet fired from his rifle might have endangered livestock [at para. 42], and that there was no evidence of posted signs on the land [at para. 43].

Originally published in LexisNexis

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