Supreme Court of Canada –  1 S.C.R. 901
This decision limits aboriginal hunting, trapping and fising rights protected by numbered treaties. The Court, however divided, refused to recognize that these rights had a commercial aspect.
Were the hunting rights given by Treaty No. 8 modified by the Alberta Natural Resources Transfer Agreement, making section 42 of the Wildlife Act inapplicable to treaty Indians?
Yes – hunting rights protected by Treaty 8 included hunting for non-commercial purposes, but this aspect of the right was extinguished by the Agreement. Consequently, section 42 is not in conflict with the treaty, and applies to Indians (4 judges against 3).
Between: Bert Horseman
And: the Alberta Crown
Interveners: Manitoba and Saskatchewan
Bert Horseman is a member of the Horse Lakes Indian Band No. 196 and resides on that reserve, located near Grande Prairie, Alberta.
In 1983, Horseman hunted moose for food. He was authorized to do so under Treaty No. 8. He killed a moose, but needed some help to bring it back to the reserve. When the group of other band members arrived at the place where Horseman had left the moose, a grizzly bear had taken over the dead animal. The bear attacked Horseman, who killed it in self-defence and decided to skin it and keep its hide. He did not possess a licence under Alberta’s Wildlife Act to hunt grizzly bears or sell their hides.
In 1984, Horseman bought a grizzly bear hunting licence and sold the grizzly hide, since he was in need of money to support his family. He was then accused of illegally trafficking a grizzly bear in violation of sect. 42 of the Wildlife Act.
Horseman: The Wildlife Act is inapplicable to him, because his treaty right to hunt for food includes the right to sell the hide of a grizzly bear in exchange for money to buy food. Also, the intentions behind the Transfer Agreement of 1930 were to protect the traditional hunting rights of Indians and not derogate from them without the beneficiaries’ consent. The Crown has the duty to protect Indians’ benefits resulting from Treaty No. 8 as part of its fiduciary obligations.
The Alberta Crown: The hunting rights given by Treaty No. 8 were merged and consolidated accordingly by sect. 12 of the Agreement. Limitations to these rights have been recognized as valid by the Supreme Court in Frank v. The Queen, R. v. Sutherland and Moosehunter v. The Queen.
Provincial Court of Alberta (1986): Treaty No. 8 granted beneficiaries not only hunting rights, but also the right to trade and barter game. Therefore, Horseman is acquitted.
Court of Queen’s Bench (1986): Horseman’s acquittal is quashed. He is convicted for the offence. The rights contained in Treaty No. 8 are restricted to a right to hunt for food by the Alberta Natural Resources Transfer Agreement of 1930.
Alberta Court of Appeal (1987): The Court of Queen’s Bench’s decision is maintained.
Lamer, La Forest, Gonthier, Cory
Treaty No. 8, and the other numbered treaties as well, protect the right to hunt for commercial purposes. However, the historical context of the conclusion of Treaty No. 8 shows that these rights were not unlimited and remained conditional on governmental regulations. The Alberta Natural Resources Transfer Agreement extinguished the right to hunt commercially by extending the hunting territory. The right to hunt for food remains protected.
Section 42 of Alberta’s Wildlife Act is a provincial statute of general application, to which Indians are also subjected under section 88 of the Indian Act. The exceptions are provincial legislations inconsistent with Indians’ treaty rights. Since protecting the survival of species, such as the grizzly bear, is consistent with the objectives of Treaty No. 8, and maintaining the beneficiaries’ traditional way of life, the appeal is dismissed and the conviction upheld.
The consensus today is that the Alberta Natural Resources Transfer Agreement extinguished the rights to hunt, fish, trap and harvest commercially for the province’s treaty Indians (Wilkins, 2007: 137). This is also true for treaty Indians residing in Manitoba and Saskatchewan since their Natural Resources Transfer agreements also contained similar provisions (Id.: 138).
Aboriginal people felt that Horseman was decided without taking into account the history of the numbered treaties’ negotiations and the surrounding legal context, characterized by constant discrimination against Canada’s First Peoples (Calliou, 2007: 174). At the beginning of colonization in Western Canada, hunting and fishing were deemed to be a “gentlemen’s pastime” and game regulations reflected that notion by prohibiting these activities during certain periods of the year along with some methods used. These were quickly imposed on First Nations and Métis alike, and their traditional way of hunting became illegal (Id.: 179-180).
During the negotiations for Treaty No. 8, the First Nations concerned were given additional assurances by government officials that their traditional economy based on bartering, trading and selling the excess products of their hunting, fishing and trapping activities would be maintained (Id.: 185). Since these promises were not included in the treaty text itself, some Canadian courts started to look beyond it to understand the scope of the privileges given to First Nations (Id.: 188). With Horseman, this was not the case (Wilkins, 2007: 145).
When Manitoba (1870), Saskatchewan (1905) and Alberta (1905) entered Confederation, their provincial governments wanted to apply new game regulations to Aboriginal people, but the federal government intervened on their behalf (Calliou, 2007: 190). In 1930, the federal government agreed to transfer the legislative power over natural resources and Crown lands to the Prairie Provinces without conducting consultations with the First Nations on their territories (Id.: 200). With the Natural Resources Transfer Agreement, provinces could now regulate First Nations’ hunting, fishing and trapping, except if this contravened the Indians’ right to conduct these activities for their subsistence. Historians have found evidence that the federal government never intended to extinguish the First Nations’ right to hunt, fish and trap commercially, since it was an incidental practice in their traditional activities (Id.: 201). For instance, provincial regulations allowed commercial hunting and provided licences for this (Id.: 202).
Limiting hunting rights
The National Aboriginal Forestry Association, whose mission is to promote and support initiatives by First Nations communities in the field of forest management and affiliated commerce, intervened before the Royal Commission on Aboriginal Peoples in 1993, where it maintained that the Government of Alberta used this decision in order to further restrict treaty Indians’ right to hunt, which strained the relationship between both parties (NAFA, 1993).
In an official publication aimed at First Nations, Sustainable Resource Development of Alberta reiterated that treaty Indians are only allowed to hunt for food; and the commercial trapping of animals in order to sell their fur is prohibited without the appropriate licence (Government of Alberta, 2009: 3). In addition, the killing of a grizzly bear must be reported within four business days to a Fish and Wildlife district office (Id.: 5 and Wildlife Regulation, sect. 130 (4.1)). A recreational licence for grizzly bear hunting is available to residents of Alberta (Wildlife Regulation, sect. 141 (1)). A person convicted for the unlawful killing of a grizzly bear is liable to a maximum fine of $100,000 or a two-year prison sentence (Wildlife Act, sect. 92 (1), (3) (c).
R. v. Gladstone,  2 S.C.R. 723
Wildlife Act, R.S.A. 2000, c. W-10
Wildlife Regulation, Alta. Reg. 143/1997
Calliou Brian. 2007. Natural Resources Transfer Agreements, the Transfer of Authority, and the Promise to Protect the First Nations’ Right to a Traditional Livelihood: A Critical Legal History, in Review of Constitutional Studies/Revue d’études constitutionnelles 12 (2): 173-213.
Government of Alberta. 2009. Hunting by Treaty Indians in Alberta – Rights & Responsibilities. On-line. http://www.srd.alberta.ca/FishingHuntingTrapping/documents/HuntingByTreatyIndians-Jul2009.pdf. Retrieved on June 8, 2010.
National Aboriginal Forestry Association. 1993. Strategy: Forest Land and Resources for Aboriginal Peoples. Ottawa: NAFA. On-line. http://www.nafaforestry.org/roycom/roycom2.php. Retrieved on August 12, 2009.
Wilkins Kerry. 2007. Unseating Horseman: Commercial Harvesting Rights and the Natural Resources Agreement, in Review of Constitutional Studies/Revue d’études constitutionnelles 12 (2): 135-171.