Canada: SK Court: Only Certain Treaties Allow For Hunting In Saskatchewan

A recent decision of the Saskatchewan Court of Queen's Bench provides guidance for First Nations people looking to hunt in Saskatchewan.

In R v Green, Justice Mitchell of the Saskatchewan Court of Queen's Bench held that First Nations people from Ontario were not exempt from Saskatchewan's hunting laws. According to the Court, only members of First Nations that have adhered to Treaties 2, 4, 5, 6, 7, 8 or 10 will be able to hunt without a provincial licence.

Background

Albert Green and Blair Hill resided in Ontario and are members of the Six Nations First Nation, a signatory to the Nanfan Treaty of 1701. In late October 2018, Green and Hill were hunting in a Saskatchewan provincial park for food. While neither of the men had a valid hunting licence, they were hunting in an area where First Nations people are normally permitted to hunt without a licence. The provincial park was considered occupied Crown land with a right of access. Since there is a regulated hunting season in the provincial park, First Nations in Saskatchewan can exercise their right to hunt for food year-round.

Both men argued that they had a right to hunt under the Natural Resources Transfer Agreement [NRTA], which is part of the Constitution Act, 1930. The NRTA was an amendment to Canada's constitution which transferred control of natural resources from the Federal Government to the prairie provinces. Importantly, the governments signed NRTA without any input by First Nations located in the provinces. Section 12 of the Saskatchewan NRTA states that "Indians of the Province" will not have to follow certain provincial hunting laws. Green and Hill argued that section 12 of the NRTA meant that they did not need a licence to hunt for food.

At trial, the Provincial Court judge agreed that Green and Hill had the right to hunt in Saskatchewan without being subjected to Saskatchewan's hunting laws. Saskatchewan appealed the Provincial Court decision to the Court of Queen's Bench.

Decision of the Saskatchewan Court of Queen's Bench

On appeal, Justice Mitchell concluded that neither Green nor Hill had a right to hunt in Saskatchewan.

Justice Mitchell relied on the "merger and consolidation theory" of the NRTA. This theory states that the protection of First Nation hunting under section 12 of the NRTA did more than protect Treaty rights. According to this theory, section 12 of the NRTA unilaterally altered the Treaty right to hunt, without the input of Treaty First Nations. Section 12 of the NRTA changed the Treaty right to hunt by extinguishing any commercial right to hunt, but geographically expanded the right to hunt for food to anywhere in the Province.

Because Justice Mitchell was of the opinion that section 12 of the NRTA was intended to alter Treaty rights, it only applies to those whose hunting rights are based on one of the altered Treaties. Justice Mitchell stated that the only "'Indians' who are entitled to [the benefits of section 12] are those subject to the Treaties which cover the geographical areas of the three prairie provinces." This means that only "Indians attached to Treaty 2, 4, 5, 6, 7, 8 or 10 lands may hunt for food in Saskatchewan" without complying with provincial hunting laws.

Green and Hill could not rely on section 12 of NRTA to be exempt from Saskatchewan's hunting rules and they were both convicted for unlawfully hunting and Hill was also convicted of unlawfully carrying a loaded firearm.

Implications for Treaty Rights Holders

The most obvious impact of this decision is that First Nations hunters from outside of the prairie provinces will not be allowed to hunt in Saskatchewan without a licence. Likewise, any hunter who is not a member of a First Nation that has adhered to Treaties 2, 4, 5, 6, 7, 8 or 10 will not receive any protection under section 12 of the NRTA in Saskatchewan. This decision could have implications for the other prairie provinces as well. Questions remain about First Nations people who are part of Nations which adhered to Treaties 1, 3 and 9 which are not within the boundaries of Saskatchewan but still within the boundaries of Manitoba which is also subject to the NRTA. Treaty 1 lands are entirely located within Manitoba and the lands of Treaties 3 and 9 are partially in Manitoba. The question remains whether these Treaty First Nations can exercise their rights in Saskatchewan.

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