Supreme Court of Canada –  1 S.C.R. 393
The Sundown case confirms that Aboriginals have the right to build shelters, even permanent ones, on public land so long as these constructions are incidental to the exercise of their aboriginal rights. Since the right to build these shelters is collective, a single member could not forbid access to its shelter to other members.
Is the building of a shelter considered an incidental practice of Sundown’s treaty right to hunt for food?
Yes, the construction of a shelter in this case is incidental to the exercise of the right to hunt for food, and it does not contravene the objectives of the park. It is therefore legal (unanimous decision).
Between: the Crown of Canada
And: John Sundown
Interveners: Quebec, Manitoba Alberta
In 1930, the Natural Resources Transfer Agreement entered into by Saskatchewan and the federal government extinguished First Nations’ right to hunt for commercial purposes protected by Treaty No. 6. However, the agreement broadened the zones in which Indians have the treaty right to hunt for food (as determined in Horseman).
In 1992, Sundown, a Cree Indian member of the Joseph Bighead First Nation (Saskatchewan), which is a party to Treaty No. 6, cut down lumber in Meadow Lake Provincial Park of Saskatchewan in order to build a log cabin he used for shelter and as a place to smoke fish and meat and to skin pelts while hunting for food. The provincial Parks Regulations prohibit the construction of a temporary or permanent dwelling on park land and the cutting of trees without permission, and Sundown was charged with both offences.
Sundown: Building a permanent shelter was a practice that was incidental to hunting rights possessed by his Nation according to Treaty No. 6. His Band has a traditional practice that consists in going on expedition hunts on their traditional hunting grounds, which are encompassed within the Park’s boundaries. While Band members are on these expeditions, shelters are built at their base camp for periods ranging from overnight to two weeks. They used to be moss-covered lean-to constructions, and they later became tents and log cabins.
The Crown: Even if building a shelter was to be considered an incidental practice, a permanent shelter, such as a log cabin, was not permitted since it would lead to Sundown asserting a property interest in Park land.
Saskatchewan Provincial Court (1994): Sundown was sentenced for building a permanent cabin on provincial park land without permission.
Court of Queen’s Bench (1995): The conviction is repealed. The right to hunt must include the right to the incidental activities, including building a log cabin. Furthermore, the construction of the cabin was not at odds with the Park’s objectives with regard to the land.
Saskatchewan Court of Appeal (1997): The decision is upheld.
Lamer, L’Heureux-Dubé, Cory, McLachlin, Iacobucci, Bastarache, Binnie
Building the cabin was incidental to the Nation’s traditional practice of hunting. Careful examination of the historical and contemporary practice of the right to hunt for food by the Joseph Bighead First Nation shows that a shelter always needs to be built as a necessary part of a hunting expedition. Without it, members of the Joseph Bighead First Nation would not be able to exercise their treaty right. A reasonable person aware of the manner of hunting used by Sundown’s band at the time when Treaty No. 6 was enacted can reasonably conclude that the building of a log cabin as shelter is a modern method of hunting which is incidental to the right to hunt for food.
On the other hand, the interest in the shelter is a collective right belonging to the Joseph Bighead First Nations. Since it is a treaty right, it cannot be considered as any other common law property right. Sundown could not forbid other members of the First Nation from accessing his shelter. The only limitations to the permanence of the shelter are compatibility with the occupation of the Crown, and provincial legislation for conservation concerns.
Such legislation could pass the justificatory test set out in Sparrow if the Park was a virgin forest, for example. Since one may find multiple cabins and other facilities in Meadow Lake Provincial Park, Sundown’s right to hunt does not contravene the purpose of those Crown lands.
Provinces usually ask citizens to get licences in order to build dwellings on public lands. In Quebec, the Act Respecting the Lands in the Domain of the State provides, at par. 54, that “No person may erect or maintain a building, installations or works on any land except with authorization of the Minister having authority over that land. The authorization is not required for the exercise of a right…”. The Act Respecting the Conservation and Development of Wildlife provides at section 24.1 that the government can enter into agreements with Native communities on matters of wildlife resource development and management.
Quebec has negotiated a few of these agreements with Aboriginal nations, such as the Huron-Wendats, for the construction of temporary shelters or the exclusive access to shelters during some periods of the year. However, these agreements are not always renewed.
Even though the right to the shelter is communal, some Nations have decided to legislate themselves to guide their members in the exercise of this right. The Huron-Wendat for example have adopted, in march 2009, a Law concerning sites and constructions in the forest for customary purposes (Loi concernant l’aménagement de sites et de constructions en milieu forestier à des fins d’activités coutumières sur le Nionwentsïo).
Sundown reinforced treaty beneficiaries’ right to use Crown lands for their traditional activities by upholding the incidental right to build a cabin when hunting for food. One of the consequences of the decision was a new requirement on the provincial governments’ part to consult with treaty Indians on the uses of Crown lands. When the Court made its decision public, the Saskatchewan Environment and Resource Management Department agreed to consult with treaty Indians about shelter construction in provincial parks (Chwialkowska and Howes, 1999: A9).
Ontario has adopted a policy to apply the Sundown case on its territory, and mostly to balance the interests of Aboriginal peoples and other users of the land. A licence system was created.
R. c. Horseman,  1 R.C.S. 901
R. c. Morris,  2 R.C.S. 915
R. v. Marshall,  3 S.C.R. 456
R. v. Marshall,  3 S.C.R. 533
Chwiakowska Luiza and Carol Howes. 1999. Cree man builds cabin in provincial park: Court—Native rights ruling could affect oil, forest industries, National Post, March 26, 1999.
De Marco Jerry V. 2007. The Supreme Court of Canada’s Recognition of Fundamental Environmental Values: What Could Be Next in Canadian Environmental Law?, Journal of Environmental Law and Practice 17: 159-204.