Sikyea v. The Queen

Supreme Court of Canada – [1964] S.C.R. 642

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Northwest Territories Aboriginal rights

Issue

Can Treaty Indians in the Northwest Territories hunt and kill duck for their survival at any time of the year, even if the Migratory Birds Convention Act and its regulations forbid duck hunting during some prescribed periods?

Decision

No. The treaty is subject to the Act (unanimous decision).

Parties

Between: Michael Sikyea

And: The Queen

Facts

In 1917, the Migratory Bird Convention Act is passed as a result of an international treaty between Canada and the United States, the Convention on the Protection of Migratory Birds, concerning the protection of the life of migratory birds. Since Canada is an old British colony, it follows the dualist tradition in international law, meaning that before a treaty is given effect in domestic law, Parliament must enact it in a statute (Philippe, 1981).

In 1962, Michael Sikyea, member of the Yellowknife Dene Band, party to Treaty No. 11, was charged under the Migratory Bird Regulations for shooting a female mallard duck out of the prescribed season not far from Yellowknife, Northwest Territories

Arguments

Sikyea: As a member of the Yellowknife band, party to Treaty No.11, he was immune from prosecution, since the treaty granted him the right to fish and hunt for food at any time, in spite of any law or regulation of the territory. The appeal to the Supreme Court was also on the ground that there was reasonable doubt that the duck killed was a “wild duck”, hence could not fall under the prohibition of the Migratory Birds Convention Act.

The Crown: The Migratory Birds Convention Act applies to the Treaty Indians regardless of the unrestricted limitation provided by Treaty 11. Also, the treaty was entered upon after the Act was enacted; therefore Sykea cannot maintain that he was not subject to it.

Decision of the lower courts

Northwest Territories Territorial Court (1962): Sikyea is acquitted of the offense.

Court of Appeal for the Northwest Territories (1964): The Crown’s appeal was allowed, Sikyea was convicted.

Reasons for Judgement

Jury

Taschereau, Cartwright, Fauteux, Abbott, Martland, Ritchie, Hall

Reason

Most of the reasoning concerns the question on whether the duck killed was a “wild duck” in the first place. There was no doubt that the bird killed was in fact specie prohibited by the Act. As for applicability of the Act to Treaty Indians, the Court adopted the reasoning of the Court of Appeal of the Northwest Territories and did not further elaborate.

Johnson, of the Court of Appeal of the Northwest Territories, said in his conclusions that the prohibition contained in the Act in question is meant to secure the supply of game and fish for the subsistence of Treaty Indians and to maintain their traditional occupations of hunting, trapping and fishing.

Even if this conclusion seems to be a breach of promise made to Indians, the court affirmed that the ratification of the Convention on the Protection of Migratory Birds should not be seen as a renouncement of Parliament to legislate on the subject. As an Indian, Sikyea was bound by the legislation and should be convicted.

Impact

This case was decided before 1982, the year that existing aboriginal and treaty right, including the treaty right to hunt for food, gained constitutional protection (Hogg, 2008).