Beyond Borders: Indigenous Hunting Rights and the Natural Resources Transfer Agreement
By Kate Gunn
What it is about
In October 2018, Blair Hill and Albert Green, both from the Six Nations First Nation in Ontario, were charged with unlawful hunting in Moose Mountain Provincial Park in Saskatchewan.
The case turned on the Court’s interpretation of the numbered treaties and the Saskatchewan Natural Resources Transfer Agreement (“NRTA”).
At trial, Hill and Green submitted that they had a right to hunt for food without a license in Saskatchewan pursuant to the NRTA. The Province conceded that Hill and Green were Indian persons and that certain Indian persons had a right to access the lands to hunt for food, but argued that the NRTA only applies to those individuals who already had a right to hunt in Saskatchewan pursuant to the numbered treaties.
The Numbered Treaties
In the years leading up to and following Confederation, the Crown and Indigenous Peoples negotiated a series of treaties which cover much of western Canada, including what is now Saskatchewan. Most of the treaties provide, among other things, that the Indigenous treaty parties will have a right to hunt throughout their territory until lands are “taken up” by the Crown for settlement, mining, lumbering or other purposes. Today, treaty hunting rights are recognized and protected pursuant to section 35(1) of the Constitution Act, 1982.
For decades, the Indigenous treaty parties have asserted that they hold a treaty right to hunt throughout their ancestral territories such that provincial legislation restricting hunting does not apply to them. The Supreme Court has further confirmed that Indigenous Peoples who are parties to the numbered treaties have a right to hunt on lands which have not been put to a use which is visibly incompatible with hunting.
The Natural Resources Transfer Agreement
In 1930, subsequent to the negotiation of the treaties, Canada entered into NRTAs with Saskatchewan and the other prairie provinces to transfer the administration and control of Crown lands and resources from the federal to the provincial governments. The Saskatchewan NRTA includes specific provisions relating to Indigenous Peoples, including paragraph 12, which provides that Indians within the province have a right to hunt, trap and fish on all unoccupied Crown lands or other lands to which they have a right of access.
The Supreme Court has affirmed that NRTAs convey rights on certain individuals which are protected under the Constitution.
What the Court said
The Court in Green held that Indian persons have a right to hunt for food on unoccupied Crown lands to which they have a right of access pursuant to the NRTA, regardless of whether they also hold a treaty right to hunt in Saskatchewan. Consequently, Hill and Green were exercising a constitutional right to hunt and were acquitted of the charges.
In reaching its decision, the Court rejected the Province’s argument that the right to hunt under the NRTA is limited to treaty Indians based on the ordinary meaning of paragraph 12 of the NRTA, which makes no reference to treaties.
The Court also held that both the treaties and the NRTA are subject to the principles of treaty interpretation established by the Supreme Court, including the principle that ambiguities should be interpreted in favour of the Indigenous party. According to the Court, the Province’s position, which was that the treaties should be interpreted so as to arrive at a more restrictive reading of the NRTA right to hunt, was inconsistent with those principles.
Finally, the Court rejected the Province’s position that paragraph 12 of the NRTA was intended to preserve game and fish for the Indigenous treaty parties in Saskatchewan. The Court concluded that it was unlikely the recognition of a right to hunt by Indigenous Peoples who were not treaty parties would have stood in the way of the negotiation of the NRTA, given the benefits that the Province acquired as a result of the agreement. The Court further noted that there was no evidence, both at the time the NRTA was negotiated and at the present day, that large numbers of Indigenous Peoples were seeking to enter Saskatchewan in order to hunt for food.
Why it is important
The decision is important for several reasons.
First, as Indigenous organizations have noted, the decision affirms Indigenous Peoples’ longstanding position that the numbered treaties are not subject to or limited by provincial boundaries. Rather than paying lip service to the Supreme Court’s principles of treaty interpretation, the decision is an example of a court applying the principles so as to arrive at an interpretation of the treaties and the NRTA which upholds the Indigenous perspective on the right to hunt.
The decision is also significant in light of the Province’s recent efforts to restrict Indigenous hunting rights in Saskatchewan. Last year, the Province sought to appeal a decision of the Saskatchewan Court of Appeal quashing the conviction of an Indigenous man from Manitoba charged with hunting on unused, privately-held lands in Saskatchewan. The application for leave to appeal has since been rejected by the Supreme Court. The Province has further sought to amend provincial legislation to trespassing laws which would impose new limits on Indigenous Peoples’ treaty right to hunt, despite concerns raised by Indigenous organizations and others that the amendments are unconstitutional. The decision in Green makes it clear that courts are unwilling to accept the imposition of restrictions on Indigenous hunting rights where doing so would be contrary to law and rules of treaty interpretation.
Lastly, the decision is significant in what it does not say. The Court in Green does not address who qualifies as an “Indian person” for the purpose of exercising a right to hunt under the NRTA, nor does it clarify the difference between the NRTA right to hunt on “unoccupied” lands and the treaty right to hunt on lands which have not been put to a use which is visibly incompatible with hunting. Going forward, it will be important for Indigenous Peoples to remain watchful for attempts by the Province to further limit hunting rights based on an overly restrictive interpretation of the both the NRTA and the treaties.
The Court’s decision in Green is unequivocal on the issue of whether Indian persons can hunt for food in Saskatchewan.
The Province has until the end of August to appeal and has indicated that it intends to do so. On the upside, an appeal could result in a further decision confirming and clarifying the nature of Indigenous hunting rights in Saskatchewan. On the downside, however, a decision to appeal could send the message, once again, that the Province is not committed to honouring the spirit and intent of the agreements on which its right to share the lands in Saskatchewan are based.
It is now in the Province’s hands to determine whether and how the decision in Green can be used as a tool to promote healing and reconciliation, or further mistrust and tension.
Kate Gunn, lawyer, is an associate at First Peoples Law Corporation. Kate recently completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review last year.
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