The Queen v. Sutherland et al.

Supreme Court of Canada – [1980] 2 S.C.R. 451


Manitoba Application of laws to AboriginalsJurisdiction over IndiansTreaties
Summary

This case determined that a provincial disposition that considered a management area to be Crown occupied land to which Indians have no right to access does not respect legislative distribution of powers between the federal and the provinces, because it directly affects Indians in order to limit their rights.

This case strengthens the idea that Aboriginal peoples right to hunt for food is an exclusively federal matter, and that a provincial law cannot restrict it.

Issue

1) Is section 49 of the Wildlife Act that dictates that wildlife management areas are Crown lands to which the Indians have no right to access unconstitutional in whole or in part?

2) Do treaty Indians have a right of access to the Area, for the purpose of hunting game for food, at any time?

Decision

Section 49 is unconstitutional. It applies exclusively to Indians and modifies their right to hunt.  Furthermore, paragraph 13 of the Natural Resources Agreement that provides that the province cannot infringe on Indians gathering rights applies. Indians have a right to access. (unanimous decision).

Parties

Between: Manitoba Crown

And: Robert Norman Sutherland, Fred Wilson and Thomas Wilson

Intervener: Canada

Facts

Robert Norman Sutherland, Fred Wilson and Thomas Wilson are Indians living on the reserve of Peguis, Manitoba.

In October, 1976, they were hunting deer for food in the Mantagao Lake Wildlife Management Area.They were charged with unlawfully at night using lighting or reflecting equipment for the purpose of hunting deer, contrary to s. 19(1) of the Wildlife Act.

 However, paragraph 13 of the Natural Resources Agreement provides that Canada consents for the provinces’ game laws to apply to Indians, so long as the province ensures they can continue to hunt, trap and fish for food on unoccupied Crown lands and any other land to which Indians can have a right to access.

Section 49 of the Wildlife Act specifically says that every wildlife management area will be considered occupied Crown land to which Indians have no right to access.

Arguments

Sutherland et al.: Manitoba does not have the jurisdiction to adopt section 49 of the Wildlife Act. Indians have the right of access to the wildlife management area and so their right to hunt is guaranteed by para. 13 of the Agreement.

 The Crown (Manitoba): The only lands to which the Indians have right of hunting under para. 13 are unoccupied Crown lands and Indian reserves. The wildlife management area is occupied Crown land and so the right of access to hunt is limited for both Indians and non-Indians.

Decision of the lower courts

The Provincial Judges’ Court: The three men are guilty.

The County Court: Section 49 of the Wildlife Act applies. Consequently, the accused did not have the right of access to these lands for hunting. They are therefore guilty of violating s. 19(1) of the Wildlife Act.

The Manitoba Court of Appeal: Section 49 of the Wildlife Act is unconstitutional.

Reasons for Judgement

Jury

Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard

Reason

The constitutionality of s. 49 of the Wildlife Act

Only the federal government has the constitutional power to adopt laws that apply exclusively to Indians, pursuant to s. 91(24) of the Constitution Act, 1867. Section 49 of the Wildlife Act is unconstitutional, beyond the competence of the province of Manitoba. Section 49 is not of general application, because it specifically excluded Indians from accessing the wildlife management areas and was meant to limit one of their most important rights: “their constitutionally entrenched right to hunt for food” (p. 452).

Furthermore, the province of Manitoba cannot unilaterally change the interpretation of the terms used in the Agreement without the approval of the Parliament of Canada.

The right to hunt in wildlife management areas

Wildlife management areas are occupied Crown land. Any ambiguity in the interpretation of the “right of access” must be resolved in favour of the Indians. A limited interpretation would defeat the purpose of the right to hunt guaranteed at para. 13 of the Memorandum of Agreement.

The Indian right to hunt for food overrules provincial conservation laws insofar as it is not dangerous to others. This means the right to hunt game (any and all game), for food, at all seasons of the year (not just “open seasons”) on lands to which they have a right of access (for hunting, trapping and fishing).

The three men had therefore the right of access to the wildlife management areas, and so their right to hunt cannot be limited. The convictions are overturned.

Impact

This decision strenghtens the position that the right to hunt for food is an exclusively federal matter and a provincial law of general application cannot restrict it. It also confirms that the interpretation of ambiguous treaty rights must be resolved in favour of the Aboriginals.

This decision complimented R. v. Mousseau, [1980] 2 S.C.R. 89 in that it clarified how the right of access applies on Crown lands. The Mousseau decision held that the right of access cannot be general and must be particular to hunting. This decision also added that if there is a general right to hunt subject to certain conditions, Indians have a right of access protected by para. 13 of the Agreement that exempts them from any such restrictions.

This decision finally creates a presumption that where the legislation is silent regarding occupied Crown lands, Indians do not have a right of access to hunt there. The Indians therefore must prove that such a right exists (Pozniak, 2005).

Related Cases

Rendered with: R. v. Mousseau, [1980] 2 S.C.R. 89

Formed the basis for Moosehunter The Queen, [1981] 1 S.C.R. 282

Regarding the right of access to private lands: R. v. Badger, [1996] 1 S.C.R. 771


Sources

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.

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