Supreme Court of Canada –  2 S.C.R. 299
This case illustrates the difficult cohabitation between non-aboriginal fishers and hunters and Aboriginal peoples. It also shows the limits imposed on aboriginal rights by some pre-confederative treaties.
The Court considered that the terms of a 1923 treaty, by which the Hiawatha ceded their rights to their traditional territory, were not ambiguous, and that nothing demonstrated that they had not understood it. It therefore applies.
Did the 1923 Williams Treaty extinguish the Hiawatha’s right to fish on their traditional lands outside their reserve?
Yes, the right to fish was extinguished. The treaty’s disposition were not ambiguous, and nothing indicates that they had not been understood by the Hiawatha (unanimous decision).
Between: George Henry Howard
And: the Crown of Ontario
Interveners: Canada, the United Indian Councils and the Ontario Federation of Anglers and Hunters
Howard is a member of the Hiawatha Band (Ojibways) and lives on the Hiawatha Indian Reserve on the south shore of Rice Lake in Ontario.
In 1818, the Hiawatha entered into Treaty No. 2 with the British Crown. It was agreed that when the treaty came in force, the Band’s fishing rights would remain intact.
In 1923, both parties entered into another treaty, the Williams Treaty, which is central to the litigation. The treaty is essentially composed of four “whereas clauses” establishing the parties’ obligations and the area to which the treaty applies. According to the third clause, the Hiawatha ceded and surrendered their privileges attached to their traditional lands, except on reserve lands.
In 1986, Howard was convicted for contravening the Ontario Fishery Regulations for fishing during an unauthorized period on the Otanabee River, outside the Hiawatha reserve.
Howard: The Williams Treaty did not nullify the Hiawatha Band’s fishing rights. The third clause should be considered as a “basket clause,” because of the ambiguity created by not mentioning important parts of the land transaction.
The Crown: The clause had the effect of abrogating the Band’s right to fish in the Otanabee River.
Ontario Provincial Court (1986): The treaty signed by the Band’s representatives in 1923 has extinguished the fishing rights held by the Band in the Otanabee River area, where the offence occurred.
District Court of Ontario (1987): Based on the transcript of the minutes of the Band Council meeting leading up to the signing, the Court came to the conclusion that there was no evidence that the Crown had misled the Hiawatha. The surrender of their Aboriginal right to fish was valid.
Ontario Court of Appeal (1992): The conviction was upheld since the transcript showed that the Williams Treaty was read aloud to all Band members before the adoption of a resolution authorizing the Band’s leadership to sign it.
Lamer, La Forest, Sopinka, Gonthier, Cory, McLachlin, et Iacobucci.
The main concerns in this litigation are factual in nature. As an appeal court, the Supreme Court cannot substitute its assessment of facts to that of the lower courts, except in the presence of flagrant errors in the trial judge’s understanding of the facts.
The Court found no such error that would justify a substitution of the analysis of the facts, since the Williams Treaty is expressed in clear and unambiguous terms, understood by the Band members at the signing. The signatories must have known that the surrender of their lands would put an end to their Aboriginal rights to hunt and fish outside their reserve.
Despite the lack of an Order-in-Council (only a motion was adopted) to ratify the Williams Treaty, the Court held that this did not nullify it.
Since the Williams Treaty area covers the southern part of Ontario, a tourist destination known for its fishing and hunting grounds, the decision was of importance for non-Aboriginal groups that practiced these activities recreationally. The Ontario Federation of Anglers and Hunters feared that granting fishing rights outside the Hiawatha reserve would be catastrophic for recreational fishing in the province (Hopkins, 1994: C6).
After the Band lost in the Supreme Court, Hiawatha Chief Earl Cowie vowed that the Band members would not respect the Ontario Fishery Regulations and would continue to fish for food outside the reserve in the area covered by the Williams Treaty (Aubry, 1994: A1).
In 1991, the newly elected Ontario Premier Bob Rae and his NDP government adopted a policy on fishing and hunting rights for Aboriginal people in the province. The Interim Enforcement Policy on the Aboriginal Right to Hunt and Fish was implemented. Its aim was to exempt status Indians from prosecution when they were found fishing or hunting on their traditional territory or in the area covered by their treaty (Notzke, 1994: 72). Consequently, the Howard decision did not affect the Hiawatha Band immediately and the provincial government maintained its decision to permit their members to fish for food outside their reserve since the reserve is too small to accommodate all Band members (CP, 1994 : G13).
In 1995, the NDP was defeated and the Progressive Conservatives came into power. The deal with the Hiawatha Band was revoked by Natural Resources Minister Chris Hodgson to appease the anglers and hunters’ lobby. The Hiawatha Band members became subject to the provincial fishing regulations (Ibid).
In 2010, Ontario’s Ministry of Natural Resources permitted Aboriginal communities to fish for food, social or ceremonial purposes without a provincial license if the activity occurs on their traditional or treaty territory and if they have an established Aboriginal or treaty right to that effect. For the Hiawatha First Nation, this means that their members still need a license to fish outside their reserve (Ministry of Natural Resources, 2010).
v. Sioui,  1 S.C.R. 1025
Ontario (Procureur général) v. Bear Island Foundation,  2 S.C.R. 570
Aubry Jack. 1994. Natives vow unrest over ban on hunting, fishing rights, in The Ottawa Citizen, May 13: A1.
Canadian Press. 1994. Indians protest against cancelled deal, in The Gazette, September 16: G13.
Hopkins Grant. 1994. Anglers anxious for ruling on native fishing rights, in The Ottawa Citizen, March 13: C6.
Ministry of Natural Resources. 2010. Outdoors Card and License Information for Ontario Residents. On-line. http://www.mnr.gov.on.ca/en/Business/LetsFish/2ColumnSubPage/ STEL02_165301.html. Retrieved on June 2, 2010.
Notzke Claudia. 1994. Aboriginal Peoples and Natural Resources in Canada. Captus Press: Concord.