Supreme Court of Canada –  2 S.C.R. 89
This case determined that Indians may have a “right to access” public roads. If the right exists, the provincial hunting laws are inapplicable to Indians hunting for food.
However, the “right to access” is restrictively defined. It is not a general entry right. It must specifically concern the exercise of an aboriginal right.
Is Mousseau guilty of hunting moose out of season with a flashlight, violating the Wildlife Act?
Mousseau is guilty of violating the Wildlife Act. Public roads are accessible, though not for the purposes of hunting according to the Memorandum of Agreement on natural resources. As a result, the immunity of para. 13 does not apply and the Wildlife Act can impose restrictions on Mr. Mousseau’s hunting activities (unanimous decision).
Between: Lawrence Matthew Mousseau
And: Manitoba Crown
In October 1976, Mousseau, a treaty Indian, spotted a deer on the road with a flashlight. He then shot it for food. There was no open season that year, and so he was charged with unlawfully hunting a wild animal during the closed season, contrary to the Wildlife Act, and unlawfully using lighting or reflecting equipment for the purpose of hunting animals at night, contrary to he same Act.
Para. 13 of the Memorandum of Agreement, approved under The Manitoba Natural Resources Act to transfer natural resources from Canada’s jurisdiction to that of the province, reads:
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.
Mousseau: The Wildlife Act is inapplicable, as the hunting was carried out on a public road by a treaty Indian. Indians have access to public roads in Manitoba and are therefore legally permitted to hunt there for food.
Canada: The purpose of access to public roads is not to hunt. Indians therefore do not have access to the roads within the meaning of para. 13 of the Memorandum Agreement.
The Neepawa Provincial Judges’ Court: Mousseau is guilty of the two charges.
The County Court of Minnedosa: The convictions are confirmed.
The Court of Appeal of Manitoba: The convictions are quashed.
Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard
Paragraph 13 of the Memorandum Agreement protects the right of Indians to hunt for food.
As a result, Indians are not subject to provincial hunting laws like the Wildlife Act, if they hunt for food on (a) unoccupied Crown lands; (b) occupied Crown lands to which they have right of access for the purpose of hunting, trapping or fishing; (c) any occupied private lands to which the Indians have right of access.
Having a general right of access is not the same as the right of access for the purpose of hunting. It is only in instances where Indians have a right to access specifically for hunting that provincial hunting laws are inapplicable.
Public roads are not made accessible for the purpose of hunting. As a result, the Wildlife Act applies and Mousseau is guilty of hunting unlawfully out of season and with lighting instruments.
This case is important by the definition it gives to rights to access. The Court states for the first time that a right to access cannot give a general entry. In order to benefit from the protection of the Agreement, the right to access must specifically concern hunting. This clarification was later used in Badger (Isaac, 2004).
The Court found that hunting on public roads must be prohibited, as it is unreasonable to determine in each case whether hunting on that particular road was a dangerous activity.
Several cases have since nuanced this position. In R. v. Fiddler, the Saskatchewan Provincial Court found that shooting at a deer from a dirt road is within an Indian’s rights and so provincial hunting laws do not apply. In R. v. Bruyere, the Manitoba Court of Appeal found that hunting on a fireguard that was also used for vehicular traffic is permissible and precludes the application of provincial hunting laws.
It should be noted that these two cases used custom and usage as the basis for the right of access to occupied Crown lands for hunting, whereas R. v. Mousseau was based on common law (Pozniak, 2005). Indians must therefore bring evidence to rebut the common law principle that there is no right of access to hunt for food on public roads (Pozniak, 2005).
For private lands instead R. v. Badger,  1 R.C.S. 771
Isaac Thomas. 2004. Aboriginal Law : commentary, cases and materials, 3rd ed. Saskatoon : Purich Pub.
Pozniak, Kristy. 2005. “Modification, Infringement, and the “Visible, Incompatible” Test: The Impact of R. v. Badger on Treaty Hunting Rights in the Prairie Provinces.” Saskatchewan Law Review 68: 403-434.