Supreme Court of Canada –  2 S.C.R. 309
Delivered the same day as Jack and Charlie.
The Court describes the essence of “Indianness”, which is of federal jurisdiction. Indianness is what make an Indian “Indian”.
The Court specifies the criteria that a provincial legislation must meet in order to apply to Indians, even though it touches Indianness : it must be of general application, its objective must not be to limit the group’s right, et must not infringe on a treaty or a federal legislation. In this case, the Court considers that the provincial law applies even though it touches Dick’s aboriginal rights and Indianness because it meets the criteria.
The facts in this case happened before the enactment of section 35 of the Constitution Act of 1982. Today, this would prevent a provincial law from infringing on aboriginal rights without justification.
In my opinion, it is impossible to read the evidence without realizing that killing fish and animals for food and other uses gives shape and meaning to the lives of the members of the Alkali Lake Band. It is at the centre of what they do and what they are. Justice Lambert, British Columbia Court of Appeal (para. 19 of the Supreme Court’s decision).
Is year-long hunting for subsistence central to the culture and lifestyle of the Shuswap so that it cannot be restricted by the Wildlife Act without attacking their core of “Indianness”?
If so, is the Wildlife Act constitutionally inapplicable because it is a provincial legislation affecting the core of “Indianness”, or was it incorporated into federal legislation with the application of sect. 88 of the Indian Act?
Year-long hunting for subsistence touches the core of Indianness, but the provincial legislation was incorporated into federal law by section 88 of the Indian Act because it is of general application and it does not specifically targets the Shuswap’s rights (unanimous decision).
Between: Arthur Andrew Dick
And: the British Columbia Crown
Interveners: Canada and Nova Scotia
In 1980, Arthur Dick, a member of the Alkali Lake Band of the Shuswap Nation residing on the Alkali Lake Reserve, British Columbia, went fishing with other members of his band near Gustafsen Creek, located in an area that they considered as their traditional hunting ground.
On their way, Dick killed a deer in order to feed the fishing party. Conservation officers found the deer meat and charged Dick with the killing of a deer out of season without being the holder of a permit, in violation of the British Columbia Wildlife Act.
Dick: The Wildlife Act affects the core of “Indianness,” and is therefore not applicable to Indians.
The Crown: The Wildlife Act is a legislation of general application and does not impair “Indianness.”
Provincial Court of British Columbia (1981): Dick was convicted and received a fine. The Wildlife Act does not attack the core of “Indianness.”
County Court of Cariboo (1982): The conviction was maintained. Even though fishing and hunting are important parts of the Shuswap culture, Dick’s status and capacity as an Aboriginal person were never impaired. The Wildlife Act applies to him since he is a citizen of British Columbia and it does not specially target his Aboriginal identity. The decision in Kruger was followed.
British Columbia Court of Appeal (1983): The appeal was dismissed by a 2-1 ruling. J. Lambert, dissenting, distinguished this case from Kruger because the Alkali Lake Band depended on deer hunting for their subsistence and the band in question in Kruger did not. By submitting Dick and the other members of the Band to the provisions of the Wildlife Act, their core of “Indianness” is affected by this provincial legislation of general application.
Dickson, Beetz, Estey, McIntyre, Chouinard
There are two kinds of provincial legislation applicable to Indians: those that do not affect the core of “Indianness,” such as traffic laws, and those that do, but that weren’t adopted in order to infringe on the statute or the rights of the group and, therefore, are incorporated into federal legislation by section 88 of the Indian Act.
In this case, there was a presumption that the Wildlife Act, a provincial law of general application, had the effect of attacking Dick’s core of “Indianness.” But there was no proof made in court that the provincial legislature wanted the Act to restrain the Shuswap’s freedom to live according to their ancient traditions. Since it is a provincial law that steps into an area of exclusive federal jurisdiction, and in the absence of a treaty or a federal law that would contradict it, the Wildlife Act can be applied to Dick and other Shuswap by being incorporated into federal legislation under sect. 88 of the Indian Act.
The events relevant to this case all took place before 1982. In that year, existing Aboriginal and treaty rights, including the right to hunt for ceremonial purposes, became entrenched in the Constitution Act, 1982. Since then, provincial laws of general application, even if they fall under sect. 88 of the Indian Act, cannot be applied to Aboriginal people if they unlawfully infringe upon a recognized Aboriginal or treaty right (Olthuis, Kleer and Townshend, 2008: 41; Hogg, 2008).
Hogg Peter W. 2008. Constitutional Law of Canada, Student Edition. 3rd ed. Scarborough: Thomson.
Olthuis John, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook, 3rd ed. Toronto: Carswell.