Moosehunter v. The Queen

Moosehunter v. The Queen Supreme Court of Canada – [1981] 1 S.C.R. 282


Saskatchewan Application of laws to AboriginalsJurisdiction over IndiansTreaties
Summary

This case determined that with their numbered treaty, Aboriginal peoples had a “right to access” to certain Crown lands. If they have a right to access, they also have the right to hunt for food there without limitation by provincial laws.

The Natural Resources Agreement is  a consolidation and unification of Treaty 6 rights.

Issue

Is the Cookson Wildlife Management Unit occupied land to which Indians have a right of access within the meaning of the Natural Resources Agreement?

Decision

Moosehunter had a right of access to the lands. The province cannot, therefore, limit his right to hunt for food. Paragraph 12 of the Natural Resources Agreement guarantees the Indian right to hunt during all seasons. The conviction against him must be quashed (unanimous decision).

Parties

Between: Walter Moosehunter

And: Saskatchewan Crown

Interveners: Canada, Alberta and the Council for Yukon Indians

Facts

In January, 1976, Moosehunter, a Treaty 6 Indian, shot a female moose out of season on Crown land designated as the Cookson Wildlife Management Unit.

He was charged with unlawfully hunting contrary to the Game Act.

Arguments

Moosehunter: The Cookson Unit falls under Treaty No. 6, and so the right to hunt there cannot be unilaterally limited by the province of Saskatchewan.

Saskatchewan Crown: The “right of access” does not apply when hunting out of season.

Decision of the lower courts

The Magistrate’s Court: Moosehunter is convicted of hunting unlawfully.

The District Court of Saskatchewan: Since hunters had a right of access to the Cookson Unit, Indians had a right of access to it which allowed them to hunt for food there at any time of the year. The conviction is quashed.

The Court of Appeal: The conviction is reinstated on the grounds that the Cookson Unit was an occupied Crown lands to which Indians did not have a right of access. The Game Act therefore applied to Mr. Moosehunter, who was guilty of hunting unlawfully.

Reasons for Judgement

Jury

Laskin, Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer

Reason

Paragraph 12 guarantees the Indian right to hunt, fish and trap for food in all seasons on unoccupied Crown land to which they have access. It must be interpreted in a large and liberal way. Provincial laws could not limit this right.

At the time, Indians had a legal right to access the lands for hunting during certain times of the year. Therefore, they had the right to hunt there in all times of the year, pursuant to para. 12 of the National Resources Agreement. Furthermore, the Cookson Unit falls under Treaty No. 6. Treaty rights cannot be modified unilaterally by provinces and so the right to hunt for food applies.

The federal Crown tried to fulfill Treaty 6 obligations with the Natural Resources Agreement, and the province cannot alter this agreement with its legislation.

The conviction should therefore be quashed. Mr. Moosehunter was acting within his right to hunt for food on the Cookson Unit.

Impact

The Sutherland case striped Moosehunter of its constitutional importance. Still, it is worth noting for a few reasons. First, it recognizes that the province has the power to protect fauna with its legislation, as long as it does not affect the federal’s exclusive jurisdiction over Indians. The judgment also highlights the vulnerability of treaty rights. The federal Crown could alter, limit or extinguish these rights unilaterally.

This case declares that the Natural Resources Agreement is a consolidation and unification of Treaty 6 protected rights. The Agreement was the method chosen by the federal government to fulfill its obligations towards Aboriginal peoples. This reasoning was recuperated in Badger.

Related Cases

The Queen v. Sutherland et al., [1980] 2 S.C.R. 451

R. c. Badger, [1996] 1 S.C.R. 771


Sources

Isaac Thomas. 2004. Aboriginal Law : commentary, cases and materials, 3rd ed. Saskatoon : Purich Pub.

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