Frank v. The Queen

Supreme Court of Canada – [1978] 1 S.C.R. 95

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Saskatchewan Aboriginal rightsTreaties

Issue

Are Aboriginal hunting rights confined to the province of residency?

Decision

All Indian can hunt for food without a license on Alberta’s territory (unanimous decision).

Parties

Between: Alex Frank

And: Alberta Crown

Intervener: National Indian Brotherhood

Facts

In 1876, Treaty No. 6 was signed between the Crown and the Plain and Wood Cree Tribes for an area covering a third of Alberta and Saskatchewan between the eastern border of Saskatchewan and the Rocky Mountains. In exchange for their lands, the Indians were guaranteed the right to hunt and fish for their subsistence on the surrendered lands, subject to regulations by the federal government.

In 1930, the Alberta Natural Resources Transfer Agreement was signed by Canada and Alberta, transferring the ownership of Crown lands from the Dominion to the province. Sect. 12 of the Agreement says that the Indians have the right to hunt, trap and fish for their subsistence and can be subjected to provincial legislation concerning the matter in order to secure the supply so that the Indians can continue to carry on their traditional activities.

In 1974, Alex Frank, a treaty Indian residing on Little Pine Reserve, Saskatchewan, went hunting for food and killed a moose near Nordegg, Alberta, situated on the territory covered by Treaty No. 6. The next day, officials discovered that he was in possession of a dead moose and charged him under sect. 16 of the Wildlife Act for unlawful possession of moose meat.

Arguments

Frank: The Wildlife Act is not applicable to him. Rather, he is subject to Treaty No. 6 or the Agreement and can be exempt from the application of the act according to sect. 88 of the Indian Act.

The Crown: The expresseion “said Indians” in sect. 12 of the Agreement applies to Indian residents of Alberta only to which the Wildlife Act is inapplicable.

Decision of the lower courts

Provincial Court of Alberta (1974): The charge against Frank is dismissed.

Supreme Court of Alberta, Appellate Division (1975): The acquittal is reversed. The right to hunt and fish for food is only for Indians residing in Alberta. If it was extended to all Indians wherever they resided, it would defeat the purpose of sect. 12 of the Agreement, which is to protect the supply of game and fish so that Indians can continue their traditional way of life.

Reasons for Judgement

Jury

Laskin, Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré

Reason

Laws of general application are valid against Indians but are “subject to the terms of any treaty and any other Act of Parliament” by the operating mechanism of sect. 88 of the Indian Act. Accordingly, unless Treaty No. 6 or the Agreement provides Frank with a special protection, sect. 88 renders him subject to the laws of the province and their penalties.

The terms “the said Indians” in sect. 12 make express reference to the phrase “Indians within the boundaries thereof.” Therefore, the protection of sect. 12 stands for any Indian hunting for his subsistence within the boundaries of Alberta, as Frank did.

As a result, the Court restored the acquittal of the appellant since sect. 12 of the Agreement rendered the Wildlife Act inoperative with regard to Indians.

Impact

In an official publication, the Alberta government recognized that all registered Indians can hunt for food in Alberta without a licence, even if they are not residents of the province (Government of Alberta, 2009: 3).

If they want to hunt for purposes other than for food, they must respect the Wildlife Act and its Regulations, according to R. v. Horseman.