Supreme Court of Canada –  1 S.C.R. 771
This case summarizes and specifies the legal framework surrounding the interpretation and application of historical treaty rights.
The Court insists on the honour of the Crown in its dealings with Indians, and reiterates that it is up to the Crown to prove, by an absolute evidence, that an aboriginal or treaty right has been extinguished by a clear and plain intention by the government.
…the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of “sharp dealing” will be sanctioned. (par. 41 of the decision).
The right to hunt has not been extinguished, but limited – only the right to hunt for food is still protected. This right can be exercised on lands that are not used in a way that is visible and incompatible with hunting (unanimous decision – 5 vs. 2 concurring).
Between: Wayne Clarence Badger, Leroy Steven Kiyawasew, Ernest Clarence Ominayak
And: the Crown of Alberta
Interveners: Canada, Manitoba, Saskatchewan, the Federation of Saskatchewan Indian Nations, the Lesser Slave Lake Indian Regional Council, the Treaty 7 Tribal Council, the Confederacy of Treaty Six First Nations, the Assembly of First Nations and the Assembly of Manitoba Chiefs
In 1930, the Natural Resources Transfer Agreement (NRTA) is adopted. It says that in “order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.”
All three men are Cree and have status under Treaty No. 8. They were all hunting for food on the lands surrendered to Canada by the treaty in 1899.
Badger was charged with shooting a moose outside of hunting season, contrary to section 27(1) of the Wildlife Act. The moose was shot on private property, a quarter mile from a farm house. There were no signs.
Kiyawasew and Ominayak were both charged with hunting without a license, contrary to section 26(1) of the Wildlife Act. Kiyawasew had passed old barns and signs before stopping on a snow-covered field to shoot the moose. Ominayak was hunting on uncleared muskeg devoid of any signs or buildings.
Badger et al.: The hunting activities were carried out on unoccupied lands and so were within the right granted by the NRTA. The provisions of the Wildlife Act under which the charges were laid are infringements on this right.
Alberta: The NRTA modified the hunting right guaranteed by Treaty No. 8 and allowed for it to be limited by the Wildlife Act. There is therefore no infringement, and the law should apply.
Alberta Court of Queen’s Bench: The Treaty does not allow access to hunting on private lands. Therefore, the treaty right to hunt for food on legally accessible lands or lands unoccupied by the Crown does not apply. The convictions are well-founded.
Alberta Court of Appeal: The three men did not have the right to hunt for food on private lands. As a result, the convictions will stand.
La Forest, L’Heureux-Dubé, Gauthier, Cory, Iacobucci
The source of the hunting right
By Treaty No. 8, Aboriginal people ceded their title and, in exchange, the Crown guaranteed their right to hunt, subject to geographical limitations and conservation regulations.
A treaty is of a sacred nature, invoking the honour of the Crown. Any ambiguity must be interpreted favourably to the Aboriginals. Any extinguishment of a treaty right must be proven by the Crown.
The NRTA expanded the right to hunt for food as guaranteed by the Treaty and eliminated the treaty right to hunt for commercial purposes. The geographic limitation imposed excludes land to which Indians have no right of access for the purposes of hunting.
Excepting land “required or taken up” by the Crown, privately owned land is accessible by Indians for hunting under Treaty No. 8. The NRTA repeats that Aboriginal peoples can hunt on unoccupied land to which they can have access. In that sense, it did not modify what had been envisioned in the Treaty.
At the time of signing, Aboriginal people did not understand the extent of what they were ceding, but they did understand that they could hunt at all times on unoccupied or abandoned lands. The criterion to use is therefore that of use visible and incompatible with a right to hunt. A visible use of the land would require the construction of a building, a fence, or signs of cattle-raising or farming.
The small distance between the place where Badger shot the moose and the farm house reasonably leads to the conclusion that the land was occupied. The presence of signs, barns, and harvested crops make it clear that the land on which Kiyawasew hunted was being visibly used. Neither Badger nor Kiyawasew had a right of access to the land and so their treaty right to hunt for food does not apply. Their convictions pursuant to the Wildlife Act therefore do not conflict with their hunting right.
In Ominayak’s case, there were no signs or buildings close to the uncleared muskeg where he shot the moose. Despite private ownership, there was no visible use of the land that was incompatible with hunting.
Application of the Wildlife Act
At first glance, the licensing scheme set out by the Wildlife Act is an infringement on the right to hunt for food guaranteed by Treaty No. 8. The limited number of licenses and the fee required are an infringement on Ominayak’s right.
Since treaty rights can be unilaterally abridged, the Crown must provide a justification for any impact on their exercise. In this case, the Crown did not have the opportunity to justify the infringement on Ominayak’s treaty right. A new trial is therefore necessary.
Lamer, Sopinka – concourring
The rights guaranteed by Treaty No. 8 are included in the NRTA. As a result, the source of the constitutional right to hunt for food is the NRTA.
The NRTA extended the hunting right to the whole of the province. It constitutes a merger and consolidation of treaty rights. Treaty No. 8 is therefore without legal effect. Furthermore, the NRTA balances the hunting right with the provincial power to regulate resource conservation.
This judgement underlines the importance of coexistence on Crown lands (Isaac, 2004).
However, the Court uses the Sparrow case to explain why unilateral modifications of treaty rights are permissible. Although treaties are the result of consensus between two parties, the Crown holds the right to change and modify its terms without Aboriginal consent. Thus, the Sparrow case both limited and justified this unilateral power (Bell, 1997).
The Badger decision is a step forward in the acknowledgement of the oral tradition of Aboriginals. While determining the intention of the frames of the Treaty, the Court valued the oral evidence of Aboriginal myths and legends (Leclair, 2013). This sets the groundwork for future cases where treaty rights are an issue (Bell, 1997).
Bell, Catherine. “R. v. Badger: One Step Forward and Two Steps Back.” Constitutional Forum. 8 (1996): 21.
Isaac Thomas. 2004. Aboriginal Law : commentary, cases and materials, 3rd ed. Saskatoon : Purich Pub.
Leclair, Jean. 2013. Aboriginal law, University of Montreal.