Supreme Court of Canada –  S.C.R. 695
In this decision, the Supreme Court varied from U.S. law regarding the application of laws to Indian lands. In Canada, under certain conditions, provincial laws of general application can apply to Indians and on reserve lands.
Can a provincial law, in this case, the Wildlife Act, apply to Indians on an Indian reserve?
Provincial laws of general application that do not concern Indians qua Indians are applicable on reserves (5 against 3).
And: Charlie Cardinal
In 1905, Alberta was admitted into Confederation. The Alberta Act provided that the management of natural resources and Crown lands was to fall under federal jurisdiction, an exception to s. 109 of the British North America Act.
In 1929, the Alberta Natural Resources Agreement was signed by the governments of Canada and Alberta to deal with the transfer of the management of Crown lands and natural resources to the province. This allowed the Indians the right to hunt, trap and fish for their subsistence all year long and on any unoccupied Crown lands. Paragraph 12 of this Agreement stated that the Province of Alberta could enact laws in order to maintain a sufficient supply of game and fish.
In 1970, Charlie Cardinal, a treaty Indian, was charged with big game trafficking under s. 37 of Alberta’s Wildlife Act for selling moose meat. The offence was committed at his place of residence, situated on a reserve.
Cardinal: The offence was committed within a reserve. Under s. 91 (24) of the British North America Act, federal Parliament has exclusive legislative power over Indian reserves. He was outside the jurisdiction of the provinces when the prohibited act was committed; therefore the Wildlife Act cannot be applied to Indians when they are within a reserve, except if Parliament decided to incorporate the provincial legislation into the laws of Canada according to s. 88 of the Indian Act.
Alberta: A provincial law does not automatically become invalid simply because it affects a matter of federal jurisdiction. Hence, even if the Wildlife Act affects Indians, it is a law of general application that does not target Indians specifically.
Provincial Court of Alberta: Section 37 dealt with a matter of federal jurisdiction. He decided that s. 88 of the Indian Act exempted Indians from application of the provincial legislation and released Cardinal from the charges laid against him.
Alberta Supreme Court, Appellate Division (1972): Section 37 was compatible with the provision of paragraph 12 of the Alberta Natural Resources Agreement. Therefore, section 37 was applicable to reserves and Cardinal is guilty of violating it.
Fauteux, Abbott, Martland, Judson, Ritchie Pigeon
This decision’s importance lies in its rejection of the “enclave theory” of reserves.
A province cannot legislate in matters directly related to Indians or Indian reserves as a result of the exclusive federal jurisdiction set out in s. 91 (24) of the British North America Act, 1867. However, this does not prevent Indians from being subject to provincial laws of general application. Section 37 of the Wildlife Act did not affect Indians “qua Indians.” Consequently, the legislation is not ultra vires the Province.
By entering into the Alberta Natural Resources Agreement, the federal government consented to expose Indians to the provincial legislation. The goal was to safeguard fish and game stocks for Indians to ensure their subsistence and survival. It would be contrary to the objectives of the Agreement if it only applied to Indians living off a reserve.
The most useful aspect in the Cardinal decision was its clarification of jurisdictional issues pertaining to Aboriginal people. In the United States, state laws are not applicable on Aboriginal territory. The enclave theory was mostly supported by J. Laskin. Before he was called to serve on the Supreme Court, J. Laskin was a constitutional scholar who wrote on the subject, supporting the American approach. In other Court opinions such as in Natural Parents v. Child Welfare and in Four B, he maintained this position, dissenting from the majority in each case. Since then, Canadian constitutional theorists have declared themselves, in an overwhelming majority, against the enclave theory (Hogg, 2008).
Hogg Peter W. 2008. Constitutional Law of Canada, Student Edition 2008. Scarborough: Thomson Carswell.