Supreme Court of Canada –  1 S.C.R. 187
This case concerns the application of laws to Aboriginals when they exercise aboriginal rights to hunt, protected by treaty, on private lands.
The Court accepted to interpret the historic treaty in light of external, historical evidence, but nonetheless refused to recognize that these rights applied to private lands.
Do Indians have a right to hunt on private property in Saskatchewan?
Indians do not have the right to hunt on private lands – their treaty does not allows them to do so (unanimous decision).
Between: Ernest Horse, Clement Horse, Phillip Horse, Peter Horse, James Standingwater, Kenneth Standingwater, Clarence Fiddler and Percy Alexander
And: the Saskatchewan Crown
In 1929 and 1930, Manitoba, Saskatchewan and Alberta were part of separate conventions with the federal government for the transfer of the ownership of Crown lands and natural resources to the provinces. The conventions, the Natural Resources Transfer Agreement, became in force with the Constitutional Act of 1930. Sect. 12 of the Saskatchewan Natural Resources Transfer Agreement gave status Indians the right to hunt and fish for their subsistence on Crown lands and on private lands on which they have a right of access.
In 1982, Horse and the others were illegally using spotlights when hunting at night during the months of September, October and November. The hunting took place on private land and the men, Crees subject to Treaty No. 6, did not obtain the relevant authorizations to hunt there, but there was no indication prohibiting it. They were later charged with contravening sect. 37 of the Saskatchewan Wildlife Act, which prohibits hunting with spotlights.
Section 38 of the Act provides that it is forbidden to hunt wildlife when a notice is up without the consent of the owner, or without respecting the posted instructions. It is also stated that the absence of such a sign “is not to be deemed to imply consent by [the owner] to entry upon his land or to imply a right of access to his land for the purpose of hunting.”
Horse et al.: Sect. 38 of the Wildlife Act, the customs and usages and Treaty No. 6 gave them a right of access to the private lands in question and shields them from prosecution.
The Saskatchewan Crown: The Indians do not have rights on privately owned lands.
Provincial Court of Saskatchewan (1983): Horse et al. are convicted of the offence.
Saskatchewan Court of Queen’s Bench (1984): The decision to convict Horse et al. is overturned.
Saskatchewan Court of Appeal (1984): On appeal, the sentence of the provincial court is restored.
Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, L’Heureux‑Dubé
Section 38 of the Wildlife Act did not establish a statutory right of access to private lands for the purpose of hunting. Hence, hunters that do not possess authorizations from the owners are trespassing.
Whether there is a warning or not only has the effect of creating a separate infraction and does not exempt Indians from the charge of trespassing on private property. This case is to be distinguished from Sutherland and Moosehunter where the supposed infractions were committed on Crown lands, which is not the case here.
There was not enough factual evidence brought by the appellants for the Court to conclude that there was a custom or usage that gave them the right to hunt on the lands in question.
The language of Treaty No. 6 is clear and explicit: the Indians’ right to hunt is not extended to privately owned lands. Passages from the negotiations, viewed in the context of the various treaties, made it clear that while the Indians could continue their way of life by hunting without any restrictions, this still did not include access to lands owned and occupied by settlers. The government’s purpose was to promote settlement on the Prairies by potential settlers and Indians. For the last group, the government wanted them to adopt agriculture, not hunting, as their principal means of subsistence by somewhat restricting their hunting rights to Crown lands.
The Crees did not offer enough evidence to the Court to conclude to the existence of customs and usages giving them the right to hunt on these lands.
R. v. Horse was the first Supreme Court decision in which the use of extrinsic evidence was allowed, even though the language of the treaty itself was clear and unambiguous. This principle of treaty interpretation was cemented with Sioui, two years later, and Marshall I (Christie, 2000: 147).
In 1998, Saskatchewan’s Wildlife Act was amended to include a prohibition of hunting on private lands if a legible sign or post gives such a warning (Pozniak, 2005: 421-422). The absence of such notice cannot be considered by hunters or Indians exercising their treaty right as an implicit consent on the owner’s part giving them access to the land (Wildlife Act, sect. 41).
Access to private lands :
Myran v. La Reine,  2 S.C.R. 137;
McKinney v. La Reine,  1 S.C.R. 401
Traditional activities on public lands :
Myran v. Sutherland,  2 S.C.R. 451
Moosehunter v.The Queen,  1 S.C.R. 282
Treaty interpretation :
R. v. Sioui,  1 S.C.R. 1025
R. v. Badger,  1 S.C.R. 771
Wildlife Act, 1998, S.S. 1998, c. W-13.12
Christie Gordon. 2000. “Justifying Principles of Treaty Interpretation,” in Queen’s Law Journal 26: 143-224.
Pozniak Kristy. 2005. “Modification, Infringement, and the ‘Visible, Incompatible’ Test: The Impact of R. v. Badger on Treaty Hunting Rights in the Prairie Provinces,” in Saskatchewan Law Review 68: 403-434.