The Imposition of State Laws and the Creation of Various Hunting Rights for Aboriginal Peoples of the Treaty 8 Territory(1)

By Brian Calliou

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And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.(2)

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Introduction

The text to Treaty No. 8 signed on the western shore of Lesser Slave Lake in June of 1899 guaranteed hunting, fishing and trapping rights in order to ensure a traditional livelihood to the “Indians” of the area.(3)  Treaty 8 also guaranteed other express and oral promises. The text respecting “Indian” hunting rights contains two parts. The first part expressly provides that the “Indians” have the right to pursue their usual vocations of hunting, trapping and fishing. The second part of the hunting clause contains a “subject to” proviso which allows for the restriction or limitation of the “Indian” hunting rights. This proviso opened the door for the imposition of state laws into the area of Indian hunting rights. The Treaty Commissioners reported that they had difficulty persuading the Chiefs and Headmen that their traditional livelihoods would be protected through the treaty. The Commissioners assured the Chiefs and Headmen that “the government was only interested in conserving wildlife for their benefit”, and therefore only such laws as were in their interests were to be imposed.(4) Yet, the history of imposed hunting regulations on First Nations shows that the Chiefs and Headmen’s suspicions were correct.

Hunting rights are a complex area of law which apply differently to various groups under a variety of circumstances in a variety of areas.(5) Within the Treaty 8 area, different Aboriginal groups may or may not have specific constitutionally protected rights to hunt; treaties apply in some areas and not others; treaties apply to some groups but not others. Geographical and political boundaries also affect where certain rights apply. Furthermore, the narrow legalistic interpretation taken by the Crown or Crown agents usually contrasts with the broader, more liberal interpretation taken by Aboriginal groups. Thus, the nature of hunting rights has been a strongly contested area of law.

In this paper I will use the concept of imposed law as a mechanism to explain the differing categories of Aboriginal status and the variety of hunting rights of each group. The imposition of a foreign legal system displaced Aboriginal peoples’ traditional laws and customs. This foreign system imposed identities, territorial boundaries, various rights and benefits, and restricted their Aboriginal rights to a livelihood. The effect was to create legal distinctions whereby the Aboriginal groups sharing the Treaty 8 territory may have substantially different hunting rights. One commentator has argued that the imposition of provincial game laws has had the effect of criminalizing Aboriginal livelihoods.(6)

The Concept Of Imposed Law

In order to better understand the various Aboriginal groups and their various hunting rights, I will utilize the concept of imposed law. Law can be characterized as imposed where “it does not reflect the values and norms of … that segment which will be subject to it.”(7) Clearly, the values and norms of the Canadian legal system based upon European liberalism does not reflect the values and norms of the Aboriginal peoples which are more collective rights based. Liberalism is an ideology or world view that includes a strong belief in individualism, human control over nature, the notion of land as a commodity, and private ownership of property. Liberalism views the individual as the basic moral agent whose individual freedoms ought to be paramount, and holds to the belief that a capitalist free market economy and private property rights are necessary for the accumulation of wealth.(8) On the other hand, Aboriginal peoples, although diverse, generally hold a strong belief in collectivism, including collective ownership of property and resources, a spiritual connection to the land and animals, and a sharing of the land and resources, rather than individual ownership of it.(9)

Robert Kidder argues for an integrated theory of imposed law because the prototype of imposed law most often used is the “colonial situation”.(10)

He argues that the concept of imposed law includes more than just the colonial situation and often includes modern cases. It is important to define clearly what legal imposition means because “in the context of post-colonial societies, the use of that phrase might imply concern merely with the normative and institutional legacies of colonialism.”(11) Okoth-Ogendo has also argued that the focus of imposed law is wider, stating it encompasses any situation “where fundamental change is contemplated in society through the medium of laws or legal institutions whose content is clearly contrary to the perceived and accepted normative order of those whose behavior it seeks to regulate or change.”(12)

Kidder asserts that imposed law should not be narrowly construed “as a one-way process of commands backed up by superior force.”(13) Rather, he opts for “an interactional process affected by power differentials.” Kidder cautions against viewing law in relation to “Native Americans” as merely “a device for further exploitation of the residual, passive, ineffectual population” where law “plays a central role in this model of domination, and the flow of manipulation is all in one direction”(14) and that more can be learned if we adopt “an interactive model that distinguishes between external law and assesses the role and sources of power at different levels of externality.”(15) He defines externality as the process where “‘outsiders’ – people with less direct involvement in the conflictual context – will find externally grounded reasons for becoming interested in the conflict’s outcome.”(16) He gives courts and politicians as examples of outsiders who are external and impose their ideas and values on locals.

Canada’s Aboriginal peoples have also had an external authority impose its ideas and values upon them through the imposition of laws.(17) The relationship developed into one of unequal power with the external government using the police and military as well as the judiciary to enforce its will.

Like in the United States, the imposition of the legal category of “Indian” as well as various laws in Canada was generally contrary to the Aboriginal peoples’ normative order. Alexandra Witkin has argued that the imposition of citizenship by the United States government upon American First Nations “can be seen as an ultimate act of domination by a relentless alien power.”(18) Imposed law generally promotes the interests of certain classes. Indeed, it has been argued, that law is “the symbolic representation of interests of particular groups, especially groups in power.”(19) The political and economic elite in the metropolis areas exploit the hinterland areas and make legal and policy decisions from the metropolitan centres.(20) The laws imposed on the hinterland peoples work in the interests of the few over the many.(21)

Some commentators have argued that the imposition of law cannot be successful without “some operative acceptance of the law by those on whom it is imposed.”(22) Aboriginal peoples in Canada have endured the imposition of a foreign political and legal system which has resulted in conflict. For example, First Nations have often been in conflict with the game laws of the state. Yet, at other times, they have actually embraced the imposed laws to fight for their rights. Additionally, at times, even the idea of game protection laws were embraced. For example, when the buffalo, and later the beaver, were declining in numbers, some Chiefs asked for protection of the game and more restrictions on non-Indian hunters and trappers.(23) Furthermore, First Nations were convinced by the oral promises made by the Treaty Commissioners that laws in their interest and protecting game may be passed.(24)

The imposition of legal identities as well as legal and political boundaries in First Nations traditional territories has resulted in a complex maze of rights related to carrying out their traditional livelihood. I will turn my discussion to the imposition of an “Indian” identity. However, I will set the ideological context which saw the European settler society subjugate the Aboriginal peoples.

 

From Self-Governing Aboriginal Societies To Subjugation

First Nations of the North American continent had complex societies with a plethora of self-governing rules and customs.(25) They had rules of behavior within their communities and other rules for interacting and trading with other communities. There were also rules governing tenure of land and ownership of natural resources.(26) Generally, First Nations had their own membership criteria for their communities. Cultural, familial and marital ties bound communities together. Shared beliefs and customs as well as shared duties and responsibilities helped to determine membership. This self-identification also set out who was not included in the group. The important point is that each First Nation essentially determined its own members.

With the coming of Europeans to North America, came another culture and world view which was very different from Aboriginal cultures. Their ethnocentric views, which included strong Christian beliefs, caused European immigrants to cast the indigenous peoples into the role of the objectified “other”. Theologians, philosophers, jurists, and explorers set out a discourse of man and society whereby only Christians were considered as “Man” capable of holding rights.(27) Thus, the boundaries of who would be considered the “other” were firmly entrenched. A strong feeling of racial superiority developed among Europeans as they encountered more cultures very different from their own. Based on the Darwinian theory of evolution, Europeans at that time viewed themselves and their culture and institutions as being at the pinnacle of the evolutionary development of man and the cultures they encountered as below them on the evolutionary scale.(28) Aboriginal peoples were cast as beneath Europeans on this scale.

After the discovery of the New World, few whites ever encountered First Nations persons and only imagined them through the writings of early explorers and missionaries. Historian Robert Berkhofer has argued that the image of the Indian was a social construct of the Europeans of North America.(29) He argued that the images of the Indian in the minds of non-Aboriginal Americans has been used as “an ideological weapon in their subjugation.”(30) Historians R.G. Moyles and Doug Owram argued that the late 19th century British view of First Nations was a myth of the noble savage who was both a “symbol of the wilderness” and someone always “threatening … random and unprovoked violence.”(31) The fact that British youth were “reared on a diet of ferocious savages served up a la carte in the novels of Ballantyne, Kingston, and Saxby, and in the pages of The Boys Own Paper and Chums” partially explains this stance.(32) To show just how deeply entrenched the image of the ferocious savage was, I refer to the description offered by Joseph Adams, a late 19th century adventurer, of how well an Ojibway fishing guide handled a knife while cleaning fish: “A few slashes of an old knife with a villainous look about it suggestive of other uses, removed the backbone of the bass and pickerel. The deftness of the strokes showed an inherent aptitude for scalping, becoming the son of a chief.”(33) The perception of the Ojibway as having “an inherent aptitude for scalping” says a great deal about the attitudes of the time towards First Nations.

Through this image of First Nations peoples as lesser beings, the European colonizers were able to justify the dispossession of Aboriginal peoples from their lands and resources. Kellough has argued that:

 Colonizers needed a set of pseudo-justifications for themselves as well as a stereotyped image of those they were colonizing. In order to justify exploitation, Indians were seen as inferior to Europeans and the development of their lands as an inevitable part of the destiny of mankind.(34)

Political scientist, Paul Tennant, has also argued that cultural superiority was a basis to support and justify the colonial occupation of North America.(35) He argued that by defining Indians as nomads, without social order, property, and political structures and processes to govern their own affairs and property relations, the European colonizers legitimized their taking of Indian lands.

These notions influenced the various institutions of society including the political and legal systems. The first major court case to deal with Aboriginal rights in Canada was the St. Catherine’s Milling and Lumber Co.(36) case of 1888 where the Judicial Committee of the Privy Council declared that the “tenure of the Indians was a personal and usufructury right, dependent upon the good will of the Sovereign” and that “there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum Dominum whenever that title was surrendered or otherwise extinguished”.(37)

The Privy Council relied for authority on the United States Supreme Court case of Johnson v. McIntosh of 1823 where Chief Justice Marshall declared:

the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their power to dispose of the soil at their own will, to whomsoever they pleased was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion, a power to grant the soil, while yet in possession of the natives.(38)


Chief Justice Marshall also stated that the “exclusion of all other Europeans, necessarily gave the nation making discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it.” If a European nation or “civilized peoples” were conquered or ceded their territories, then such “rights of the conquered to property should remain unimpaired.” However, the Chief Justice rejected the application of this principle to the First Nations of North America on the basis that “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness.”(39)

These Eurocentric legal principles,(40) based upon racial and religious intolerance, continued to influence our Canadian courts. For example, in 1929, Justice Patterson of the Nova Scotia court remarked in the Silyboy case that Indians were “uncivilized people” and “savages”.(41) Sadly, these ideas are still in the courts as seen in the 1991 Delgamuukw trial decision where Justice MacEachern denied the First Nations’ claim to aboriginal title and jurisdiction over their traditional lands on the basis that the First Nations’ ancestors “had no written language, no horses or wheeled vehicles, slavery and starvation were not uncommon, wars with neighboring peoples were common…”.(42) By viewing Aboriginal peoples as “uncivilized” or ‘un-Christian”, the courts and law makers could justify the imposition of laws which restricted their access to the land and natural resources.

Similar views were held by missionaries and educators who felt they had to Christianize First Nations and assist them in shedding their “primitive past”. Confining First Nations to reserves where they could “progress” toward an industrious, agricultural lifestyle was the government policy.(43) Thus, “once again ‘wild’ Indians according to the deficiency image were to be transformed into [Euro]Americans by traditional means of acculturation and assimilation, this time through the supposedly new method of the reservation.”(44) Furthermore, with contact, came diseases that depleted the populations of First Nations across North America over this period. It was assumed by the new European settlers that the “Indian” was a dying race.

It is within this historical context that the Canadian state moved to impose its laws to define “Indians”. The federal government in Canada gained the jurisdiction over “Indians and land reserved for Indians” and exercised its powers through the Indian Act.


Imposition Of The Category “Indian”

Right from the first contact, the Aboriginal peoples of the “New World” had the designation of “Indians” imposed on them. All Aboriginal peoples tended to be labeled by the misleading and generic term “Indians” despite their unique cultural and language differences. North American settler populations created a mythical “Indian” which was foisted upon the Aboriginal peoples. Frances Svensson has argued that “Behind the assault on indigenous rights to land, resources, and treaty-guaranteed compensation, there has been a more fundamental assault on the most basic right of all – the right to be an Indian.”(45) In Canada, like in the U.S., there has been an assault on the right of First Nations to define themselves.

At confederation, the sovereignty of the provinces was retained over specific matters, with the adoption of a system of federalism. The British North America Act, 1867 set out the sovereignty of both levels of government.(46) Under s. 91 all the exclusive powers of the federal government were expressly listed and under s. 92 all the exclusive powers of the provincial governments were expressed. Pursuant to subsection 24 under section 91 of the constitution, the federal government was given the exclusive powers over “Indians and Lands Reserved for Indians”. Under this authority, Parliament enacted a series of laws which became the Indian Act, thereby exercising its jurisdiction over “Indians”. Parliament decided who was and who was not an “Indian” according to their definition of “Indian” under the Indian Act.

The Indian Act definitions followed the early legislation of the pre-confederation Colonial Legislatures. For example, the Province of Canada enacted legislation in 1850 dealing specifically with Indians and Indian lands which set out a definition in s. 5 specifying which people would be covered by the Act and included all persons of Indian blood belonging to a particular tribe and persons intermarried with them, as well as their descendants, including adopted children.(47) In later legislation, the Province of Canada amended the definition of Indian to be based “solely on a racial or marriage line for the Indians.”(48)

The new Dominion government of Canada’s new Indian Act set out a definition of “Indian” in the following terms:

For the purpose of determining what persons are entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, the following persons and classes of persons, and none other, shall be considered as Indians belonging to the tribe, band or body of Indians interested in any such lands or immovable property:Firstly. All persons of Indian Blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immovable property, and their descendants;

Secondly. All persons residing among such Indians, whose parents were or are, either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immovable property, and the descendants of all such persons; And

Thirdly. All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their decedents.(49)

In 1869, the federal government began to state who would not be entitled to be an Indian – specifically, any Indian woman marrying anyone other than an Indian ceased to be an Indian as did her children of that marriage.(50) The definition section became more simplified in the 1876 Indian Act where s. 3 provided that:

The term “Indian” means

First. Any male person of Indian blood reputed to belong to a particular band;

Secondly. Any child of such person;

Thirdly. Any woman who is lawfully married to such person.(51)


The Indian Act definition of “Indian” was reviewed by the North-West Territories Supreme Court in the 1894 Howson case.(52) The court held that the words in the definition “any male person of Indian blood” meant any person with Indian blood in his veins, the origin of which does not matter. The court also stated:

It is intended to apply to a body of men who are the descendants of the aboriginal inhabitants of the country, who are banded together in tribes or bands, some of whom live on reserves and receive monies from the Government, some of whom do not. It is notorious that there are persons in those bands who are not full-blooded Indians, who are possessed of Caucasian blood, in many of them the Caucasian blood very largely predominates, but whose associations, habits, modes of life, and surroundings generally are essentially Indian, and the intention of the Legislature is to bring such persons within the provisions and object of the Act, and the definition is given to the word “Indian” as aforesaid with that object. In some instances possibly the Act goes further than I stated, and in some of its provisions applies to half-breeds …”.(53)

The imposed definition of Indian was very much a patriarchal idea with the elements of the definition focusing on a male person of Indian blood. Inuit were held by the Supreme Court of Canada to be Indians under s. 91(24),(54) but Parliament amended the Indian Act to expressly exclude Inuit from the Indian Act definition of Indians. A more recent case has held that the term “Indian” refers only to “Indian Act” Indians.(55) Thus, there is still uncertainty in this area. As a result of the imposition of the legal category of “Indian”, the Canadian state has had difficulty in clearly drawing the line of who was or was not an “Indian”. It also resulted in the exclusion of some Aboriginal groups and the creation of a non-status class of Indians.

 

Creation Of A Non-Status Indian Class

By virtue of the Indian Act definitions, many First Nations were excluded from the status other First Nations enjoyed. They became the non-status Indians, meaning they do not have registered status under the Indian Act. Thus, they are also excluded from enjoying benefits and protection given to status Indians. Catherine Bell stated that the debate about the selection criteria determining “aboriginal peoples” is of “particular importance to Metis and non-status Indians who through the process of policy and legal definition have been excluded from federal schemes designed to benefit Indian peoples.”(56)

Delia Opekokew, a First Nations lawyer, has argued that the “inequities and differences of economic and political rights among the aboriginal peoples have their source in the absolute power vested in Parliament.”(57) She adds that because of this “extraordinary power, the Crown (in right of Canada) has chosen to recognize only those peoples identified as Indians to be entitled to the use and benefit of Crown ‘lands reserved for Indians’, and consequently, eligible for its protection.(58) Opekokew also argued that “because of the patrilineal system (descent through the male line) and the provisions excluding certain categories of people, many persons of varying degrees of Indian blood and culture were outside the statutory definition. These people became known as ‘Non-Status Indians’ and were not eligible for the same federal services and programs as Status Indians.”(59) Opekokew notes that “one of the most important economic rights held sacred by aboriginal peoples is the right to hunt, fish, and trap at all times of the year. However, this right is unique to those Status Indians covered by a treaty.”(60) So, only status Indians with treaty rights are given clear recognition of their rights to hunt.

Notwithstanding the arbitrary legal definition imposed by the Indian Act, non-status Indians shared similar lifestyles as their status Indian brothers and sisters. Many continued to carry on their traditional livelihood of hunting, fishing and trapping.(61)

 

The Metis

Like the non-status Indians, the Metis were excluded from being “Indians” under the Indian Act. Although the Metis have their own distinct history and culture, non-status Indians are often described as Metis and vice versa. This is especially true when it comes to hunting cases. Generally, the term “Metis” refers to descendants from the Red River mixed bloods.

Historian John Foster has analyzed the term “Metis”. He found that there are differences within the Metis peoples.(62) He argued that to adequately understand the confusion which has arisen with the term Metis, an historical understanding is necessary which emphasizes two separate fur trading systems. The Great Lakes trading system with its “broker-trader” role, led to the creation of the “Metis”. On the other hand, the Hudson’s Bay system with its “Home Guard Cree” post provisioner role, created mixed bloods who did not become “Metis”.(63)

More scholars are noting that the peoples often referred to as Metis had a particular historical experience that “was more diverse” and that “‘Metis’ self-identification [is] more nebulous, and class-based structures and relations more complex” than had been formerly recognized.(64) This is supported by Paul Thistle who stated “one of the primary characteristics of the mixed-descent peoples in the Canadian West is the wide variety of social positions and settings, ecological and economic niches, as well as forms of self-and other-identifications which made these northern mixed-descent groups and their histories notably different from the Red River Metis.”(65)

Nevertheless, the Metis have developed a unique cultural identity and generally have a strong sense of their Aboriginal identity.(66) The Metis themselves have made the distinction between two types of Metis. These are, first, the descendants of Red River who basically adapted to the new settlement society and, second, the “nomadic” Metis who essentially lived a traditional hunting and trapping lifestyle.(67) Thus, while there seems to be a clear Metis identity among some Metis, they also recognize the differences within their group.


Definition Of “Aboriginal Peoples” In S. 35(2) Of The Constitution

The Constitution contains a definition of “Aboriginal peoples” which includes most Aboriginal groups in Canada, but does not include non-status Indians.(68) The Constitution Act, 1982 amendments to the constitution contained explicit clauses referring to Canada’s Aboriginal peoples. Section 35(1) provided that the “existing Aboriginal and treaty rights are hereby recognized and affirmed”. Section 35(2) sets out a definition of the term “aboriginal peoples of Canada” which is not an exclusive definition: “In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada.”(69) Since this is not an exclusive definition, non-status Indians could be included, but so far Parliament has not amended the Constitution to include them.

The inclusion of s. 35 occurred only after intense lobbying by the various Aboriginal peoples of Canada.(70) With the entrenchment of s. 35(1), an Aboriginal group or person who can prove the existence of traditional practices such as hunting and fishing, will have the constitutional protection of their rights.

 

First Nations Relationship To The Land And Wildlife

First Nations generally held a sacred relationship with the land and animals. For example, Algonkian groups believe that the Great Spirit is the “creator and sustainer of all things”. Everything in the world of the First Nations has a manitou, or spirit. “The Indian perceived man and nature as tripartite beings consisting of body, soul and shadow” and “the Indian strove to manipulate the system to his advantage.”(71) Thus, in order to “realize the good life”, the First Nation person had to ensure he or she did not offend the animal spirits. “Success meant strict conformity to numerous and often complex rules.”(72) The key to “understanding the Indian’s role within Nature lies within the notion of mutual obligation: man and Nature both had to adhere to a prescribed behavior toward one another” or catastrophic results occurred “when either one or both parties broke the contract by some extra ordinary act which caused injury to the other.”(73)

“The mutual obligation, man to Nature, Nature to man, was that other life forms, such as animals, fish birds and plants, were to yield themselves up to the Indian for his needs.”(74) In return, First Nations knew they must never take more than they needed, nor should they insult or unnecessarily harm the animals and, further, they must adhere to hunting and fishing rituals and taboos. First Nations perceived these rules for hunting “as a way of bestowing cautious respect to a conscious fellow-member of the same eco-system who literally allowed itself to be killed for food or clothing.”(75) Respect for Nature and her animals ensured that future hunts would be successful and also likely regulated the exploitation of game for subsistence.

First Nations were dependent upon wildlife for their subsistence and economy. Indeed, their food, tools, weapons, clothing and shelter came from Nature. Hunting and fishing had great cultural and social significance for First Nations. It was a way of life – a way of relating to the land and the wildlife. Indeed, Justice Lambert of the British Columbia Court of Appeal stated in his dissent in the Dick case that hunting was within the central core of Indianness, that is, that hunting gives shape and meaning to the lives of the Band members.(76) Lambert also stated, “the [Indian] hunters … do not hunt for trophies; they do not hunt for recreation, nor do they look on hunting as recreation; they do not leave the carcasses of the animals they kill in the woods. If they work for wages it is not as an alternative to hunting but in order to acquire the means to hunt for food.”(77) Dougald Brown discusses how the competing interests in hunting required the balancing of interests through the imposition of regulations:

Nevertheless, the hunting rights issue does involve more than mere inconvenience. For many Indians, especially in remote areas, restrictions on the traditional freedom to hunt have come to symbolize the imposition of outside authority on an activity that, perhaps more than any other, embodies native’s own ideas of “Indianness.”(78)

Thus, the imposition of laws which restrict the traditional livelihood of First Nations affects their cultural identity.

 

The Variety Of Hunting Rights In Treaty 8

A. Aboriginal Right to Hunt

Aboriginal rights to hunt are based on prior occupation of the land since First Nations were here making use of the environment when Europeans arrived to settle.(79) Aboriginal rights can be based on Aboriginal title (a form of ownership in the land) or on the historical use and occupancy of a territory such as for the purpose of hunting and gathering. The original theory was that such rights to hunt were tied to Aboriginal title, that is, that an Aboriginal group who could prove they were an organized society practicing such traditions prior to European sovereignty being asserted in the specific area could claim the Aboriginal right.(80) However, another theory has developed which holds that certain Aboriginal rights such as hunting rights can stand alone separate from Aboriginal title.(81)

The Constitution Act, 1982, s. 35 (1) entrenched Aboriginal and treaty rights into the Constitution which pursuant to s. 52 is the “supreme law of the land” and any laws or government actions which are inconsistent with such rights “are of no force and effect.” The importance attached to Aboriginal and treaty rights is further reflected by the fact that s. 25 was added which expressly provides that the Charter rights will not abrogate or derogate from those Aboriginal and treaty rights.

Constitutional rights are not absolute and the courts allow minimal interference for legitimate reasons for the public good. Thus, a strict justification test was set out by the Supreme Court of Canada in the Sparrow decision for laws that infringe an Aboriginal or treaty right.(82)

The Sparrow test is in two parts. First, the Aboriginal person or group must prove an Aboriginal or treaty right is an existing right and that it was infringed. In other words, they have to prove it exists and was not extinguished by express legislation. Second, if the right is proven to exist and was infringed, the burden shifts to the Crown to justify the infringement. The Crown must show that there is a valid legislative objective and that it carried out this objective in a manner which respects the special trust relationship it has with the Aboriginal peoples. Thus, the legislation at issue which has the effect of infringing an Aboriginal or treaty right must be the least intrusive measure, it must give priority to the Aboriginal users over other users of the resource, and there must have been consultation with the Aboriginal group concerned before such laws are made.

Aboriginal peoples without a treaty must argue for their Aboriginal rights to hunt. For example, Metis people have been arguing in court that they have an existing right to hunt protected under s. 35(1) of the Constitution Act, 1982.(83) They have had to overcome the Crown’s argument that their Aboriginal hunting rights were extinguished by taking scrip. Judge Goodson in the Ferguson decision felt there was a “substantive promise” to the Aboriginal persons to continue their traditional livelihood.(84) He stated:

In the case of the “Metis” the question that comes to mind is, “what is that substantive promise?” Is it land? Is it scrip money? Is it the right to hunt for food? It is difficult to imagine a more basic Aboriginal right than the right to avoid starvation by feeding oneself by the traditional methods of the community.(85)


Thus, every Aboriginal group arguably ought to have the right to carry on their traditional methods of providing for their subsistence, irrespective of whether they are “Indian Act” Indians or not. In order for non-treaty Aboriginal persons’ to have rights to hunt, they would have to prove such traditional practices were not extinguished.

B. Treaty Right to Hunt

Generally, treaties were a mechanism which set out a relationship between the Crown and First Nations.(86) However, the interpretation of treaties differs between the Crown and First Nations. From the Crown’s perspective, the Dominion government entered into treaties to deal with the outstanding claims by First Nations and to secure an extinguishment of their rights to the territories. They sought to pursue their national policy of immigration of European settlers to populate the west through the free homestead policy and railway building.(87) From the First Nations’ perspective, the treaties are nation to nation agreements which contain solemn promises which cannot be altered without their consent.(88) Generally, First Nations take a broad, liberal interpretation of their rights.(89) Such a diversion of understanding has led to a variety of conflicts respecting the interpretation of treaties.

The fact that the written version of the treaty does not adequately reflect the whole treaty has been recognized by the Supreme Court of Canada.(90) The spirit of the treaties encompasses the extrinsic and oral evidence, not just the text of the treaty.(91) With respect to interpreting Treaty 8, one commentator states, “it is obvious, then, that one cannot determine the Government’s policy on Indian hunting rights merely by discussing the actual provisions of the treaty, although one may attribute to the text a role in misleading the Indian understanding of Government’s intentions.”(92)

The federal government sought to pursue negotiations for Treaty 8 only after numerous reports indicated the mineral and resource potential of the area.(93) Another pressing matter was the discontent shown by the local First Nations about the numerous Klondike gold seekers passing through their territory.(94) Treaty 8 was negotiated between Crown representatives and the First Nations representatives in the latter part of June, 1899.(95) The Treaty Commissioners found that one of the greatest concerns of the Chiefs and Headmen was the right to continue their traditional livelihood. The Commissioner’s Report states as follows:

Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits.(96)


The Commissioners desired to retain the “subject to such regulations as may from time to time be made by the Government of the country,” phrase in the hunting clause so they had to convince the First Nations leaders that any game laws would be to the benefit of the First Nations. The Commissioners stated:

But over and above the provision, we had to solemnly assure them that only such laws as to hunting as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made. (97)


The Commissioners also made a solemn promise that the treaty would preserve the First Nations’ traditional livelihood as if the treaty were never entered into, “and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.”(98)

The treaty right to hunt was often viewed by the state officials as not having the strength of law. This occurred over time and, according to Bennett McCardle, during the 1880s, the federal government based their definition of Indian hunting rights on the treaties, while in the 1890s their view of hunting rights changed to their general power over Indians under s. 91(24) of the BNA Act.(99) She argued that what resulted was the reduction in the importance placed upon the treaty terms when determining what limits would be placed on Indian hunters.

Even though First Nations had rights under treaty, provincial governments tended to view First Nations hunters hunting off reserve as any other hunter and therefore subject to provincial game laws. Provinces attempted to impose their game laws on treaty First Nations hunters.(100) Yet, the Federal Department of Indian Affairs sought to protect the “Indians” treaty hunting rights at times. However, since wildlife is a natural resource which provinces had jurisdiction over, the Department of Indian Affairs seemed apprehensive about exerting its authority to regulate Indian hunting. The Department of Indian Affairs was swayed by the arguments that provincial game laws ought to apply to “Indians” who hunted off reserve. Thus, from 1908 to 1912, “the control of Indian hunting practices moved gradually into provincial hands.”(101)

The federal government imposed its own laws which have greatly altered the First Nations’ right to hunt as promised in the treaties. With the North-west Territories Act of 1886, the federal government introduced the common and statute law of England into the North West Territories, the area now known as Manitoba, Alberta and Saskatchewan.(102) The Dominion government imposed the application of game laws on certain First Nations. For example, In 1890, the federal Parliament passed an amendment to the Indian Act to add the following section:

133. The Superintendent General may, from time to time, by public notice, declare that, on and after the day therein named, the laws respecting game in force in the Province of Manitoba or the Western Territories, or respecting such game as it specified in such notice, shall apply to Indians within the said Province or Territories, as the case may be, or to Indians in such partes [sic] thereof as to him seems expedient.(103)

Pursuant to this provision of the Indian Act, the Superintendent of Indian Affairs, in 1894, published a notice in the Canada Gazette expressly stating that the laws respecting game in force in the North-West Territories will apply to the Stoney Indians along the Rocky Mountains and certain other named First Nations.(104)

In 1894, the Dominion Government passed the unorganized territories game laws for the Athabasca region.(105) The Act provided that “buffalo and bison shall not be hunted, taken, killed, shot at, wounded, injured, or molested in any way, at any time of the year until the first day of January, A.D. 1900.”(106) Although other animals also received protection under this Act, “apparently only the regulations concerning buffalo were seriously enforced by the police patrols”.(107) This Act went through various amendments until 1906 when the federal government revised the territorial game act.(108) During this period, the area south of the Athabasca region was subject to the territorial law, The Game Ordinance.(109) Also in 1906, the new Province of Alberta’s Legislature passed its first game act which essentially amended the territorial game ordinance.(110) The following year, the Alberta Legislature passed the Alberta Game Act.(111)

Another example of federally imposed law was the passage of the Migratory Birds Convention Act in 1917 which had the effect of denying First Nations their right to hunt as promised in the treaties.(112) The federal government did this without any consultation with First Nations and essentially overlooked the treaty rights of First Nations.(113) Representatives from Canada and the United States had been corresponding and meeting on the issue for a number of years. Concern for the decline of birds grew as intensive settlement of the west by the end of the 19th century caused the loss of crucial bird habitat.(114) In order to get all provinces to approve the international agreement, concessions had to be made to Nova Scotia and British Columbia. Agreement was reached on April 11, 1916 and was signed August 16, 1916. Canada’s enabling legislation to ratify the treaty was the Migratory Birds Convention Act of June, 1917.(115) Aboriginal peoples were subject to the bird laws as a result of this imposition.(116) The foregoing review of federal and provincial game laws illustrates that treaty rights were viewed as not having the force of law or were overlooked altogether.

Case law on Indian hunting rights illustrate how courts have interpreted the treaty right to hunt. An early treaty hunting rights case in Alberta was the 1910 Stoney Joe case.(117) Stoney Joe was a member of the Stoney Indian tribe which occupied the area along the eastern foothills and slopes of the Rocky Mountains. They had earned their livelihood from hunting, fishing and gathering in the area since time immemorial. Stoney Joe was charged with selling a mountain sheep head contrary to the 1907 provincial Game Act.(118) He was convicted at trial in provincial court. However, on appeal, the Supreme Court of Alberta heard the case and Justice Stuart held that Stoney Joe’s conviction was to be set aside on the basis that the federal game laws occupied the field, therefore the provincial game laws could not apply to the Stoney Indians. Justice Stuart reasoned that the provincial Game Act section under which Stoney Joe was charged was enacted after 1894 and the Gazette notice by the Superintendent of Indian Affairs in 1894 adopted provincial game laws as they stood at that date. Thus, the later provincial Game Act section could not be relied on to convict Stoney Joe. While treaty hunting rights would ultimately be altered in the provinces by the Natural Resources Transfer Agreement (NRTA) as will be discussed below, this case did assert federal pre-eminence.

The NWT case of Noel sets out the treaty hunting rights of Treaty 8 Indians who are not within the prairie provinces.(119) Noel was a Treaty 8 Indian charged under the regulations of the Area Management Act for discharging a firearm within a no-shooting road corridor and under the Wildlife Act for hunting without regard to safety. Mr. Noel argued that he was exercising his Treaty 8 right to hunt for food. The Territorial Court found that there was no evidence of unsafe hunting. The Court further held that a Treaty 8 right to hunt was in existence when s. 35(1) of the Constitution Act, 1982 came into effect. In this, Judge Halifax found that the legislation creating a year round no-shooting zone along the highway within a traditional hunting area was a prima facie infringement of the treaty hunting right by applying the Sparrow test to determine whether the infringement of the constitutional right could be justified. On the first part of the justification test, Judge Halifax found that there was a valid legislative objective in seeking to ensure the public safety. However, on the second part of the justification test, he held that the Crown failed to justify its infringement based on the evidence before him which showed the Crown had chosen to proceed with a measure which did not minimally infringe the right and that the Crown had failed to adequately consult with the First Nations of the area.(120)

Another example of treaty First Nations hunters coming into conflict with laws imposed on them was the Norn case.(121) This case dealt with the issue of a Chipewyan First Nation member hunting within the Wood Buffalo National Park. This park was established in 1922 within the Treaty 8 territory and within the Ft. Chipewyan Cree and Chipewyan First Nations traditional hunting territories in northern Alberta.(122) In the case, Mr. Norn was charged with discharging his rifle within 100 metres of the centre line of a highway in contravention of the federal game law under the Wood Buffalo National Park Game Regulations. He was also charged under the federal National Parks Act for hunting game without a permit. At trial, the Provincial Court Judge held that the accused was guilty. He reasoned that although the roadway from which Mr. Norn shot from was not a permanent road, it was, nevertheless, open for public use, it had a posted speed limit and other signs, and was maintained by National Parks Canada. The Judge rejected the defense counsel’s argument that Mr. Norn had an existing treaty right protected under s. 35(1) of the constitution to hunt within the national park, including hunting from the roadway.

Importantly, the court, upon hearing extrinsic and oral historical evidence, also held that the term “saving and excepting” in the Treaty 8 hunting clause was not thoroughly explained to the Chipewyan people and was capable of more than one meaning. Thus, it rejected the Crown’s interpretation that the effect of this clause was to extinguish the right to hunt in the national park. On the other hand, the court felt that the term “subject to regulation” was not ambiguous and that the Treaty Commissioner’s report “sufficiently explains that regulations may be imposed in the interest of the Indians and to preserve the wildlife.”(123) The court also held that the Treaty 8 right to hunt for food in the national park is not limited to food hunting. The court stated that the limitation on the right to hunt must be found in the treaty, Act or regulations or case law and the regulations that were in question did not limit the holder of a hunting permit to hunt for food.

In the Norn case, the judge also carried out the Sparrow analysis and found that the regulations were not an unreasonable infringement of the treaty rights of the accused. He reasoned that the prohibition on hunting in the park without a permit had a valid legislative objective, that is, that it was reasonable as part of the game management plan to preserve the game. He also found that the requirement of a permit to hunt does not create an undue hardship on the First Nations hunters and it does not adversely interfere with the exercising of their right to hunt. While it may have been inconvenient, permits would be issued free of charge within a reasonable time when requested. Likewise, with the prohibition of discharging a firearm from the road, the court felt this infringement on the hunting right met the first branch of the Sparrow test. The limitation on the hunting right was not unreasonable nor did it cause any undue hardship. The purpose of roads is for travel, not for hunting. Finally, the court held that there was no need for the Crown to justify the regulations since the regulations were not an unreasonable infringement requiring going on to the justification stage of the Sparrow analysis.

The Wolfe case dealt with the mobility rights of treaty Indians.(124) Mr. Wolfe was a Treaty 3 Indian of Ontario who resided in and hunted for food in the Treaty 8 territory inside British Columbia. He was charged under the B.C. Wildlife Act and Regulations. In this case, the Crown argued that the accused’s treaty rights arising out of Treaty No. 3 had limited territoriality and could not apply in B.C. The Provincial Court Judge held that the accused’s rights to hunt could not be extinguished simply by moving from Ontario to B.C. He also held that since the B.C. Wildlife Act exempts an Indian residing in B.C. from compliance with the requirement to hold a hunting license or certain restrictions on carrying a firearm, the accused stood on the same footing as any other “Indian” (as defined in the Indian Act) who exercises hunting rights in B.C. The provisions of the Wildlife Act were held to infringe on the accused’s hunting rights, and were therefore inconsistent with s. 35(1) of the Constitution Act, 1982, and were thus of no force and effect with respect to the accused.

The foregoing review gives an illustration of some of the issues dealt with by the courts regarding treaty hunting rights. By various Acts of the provincial and federal governments the treaty rights in the prairie provinces were modified without the consent of First Nations.


C. Natural Resources Transfer Agreement (NRTA) Right to Hunt

In addition to the above cases and legislation, First Nations in the three prairie provinces, Manitoba, Saskatchewan and Alberta are affected by the Natural Resources Transfer Agreement, 1930 (NRTA), while First Nations in NWT and B.C. are not. In general, the NRTA modified the treaty promises made by the Crown.(125) Here, without consultation with the First Nations, the federal Crown entered negotiations with the three prairie provinces, to transfer the ownership and jurisdiction of the remaining lands and natural resources to the provinces.(126) Clause 12 of the NRTA provides:

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.(127)


This clause can be seen in two parts. The precise wording of the first part of the clause indicates that the intention was to have provincial game laws apply to First Nations in order to “secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence”. Hence, game laws intended to conserve the animal populations would apply to First Nations. This is consistent with the promise made by the treaty Commissioners that only such laws “as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made.”(128) The second part of the clause is a proviso that states “Indians” would have the right to hunt, trap and fish for food any time and anywhere they have a right of access to. Thus, it seems reasonable to conclude that this clause was intended to allow provincial game laws to apply to First Nations hunters hunting for the purposes of trade, barter or sale of the products of the hunt but would not apply when hunting for food.

The first real test case which considered the hunting provision of the NRTA was the Wesley case decided in 1932.(129) Mr. Wesley was a Stoney First Nation member who went hunting west of Calgary on December 10, 1931 and killed a male deer without horns. He was charged in Calgary under the provincial Game Act(130) for hunting without a license, hunting with dogs and killing a deer with antlers less than four inches in length. Police Magistrate Col. Sanders convicted Mr. Wesley of the third charge – killing a deer with antlers less than four inches – but acquitted him on the first two charges. Magistrate Sanders reasoned that s. 12 of the NRTA made the rights of Indians to hunt for food subject to provincial game laws. He also took a narrow legalistic approach by looking only to the written text of Treaty 7 and would not allow the evidence of two Stoney Indian Elders who were present at the signing of Treaty No. 7. Magistrate Sanders stated “I am not going to be a party to allowing a conversation of what they understood. The treaty speaks for itself.”(131) Mr. Wesley appealed the decision.

The appeal court contrasted Magistrate Sander’s narrow, legalistic approach by taking a broader, historical approach to interpret s. 12 of the NRTA.(132) Justice McGillivray reviewed extrinsic evidence and recounted the recognition of the concept of Aboriginal rights. Justice McGillivray acquitted Mr. Wesley and held that the provincial Game Act did not apply to Mr. Wesley when hunting for food off his reserve. He reasoned that Mr. Wesley was a Treaty 7 Indian who had a treaty right to hunt off reserve and that if he were hunting for food, the provincial game law would not apply to him because of the s. 12 wording in the NRTA. Justice McGillivray stated:

It is satisfactory to be able to come to this conclusion and not have to decide that ‘the Queen’s promises’ have not been fulfilled. It is satisfactory to think that legislators have not so enacted but that the Indians may still be ‘convinced of our justice and determined resolution to remove all reasonable cause of discontent.’(133)

Justice McGillivray seemed pleased that he did not have to decide that the solemn promises of the Crown had been broken. He would not have to reason how a breach of “the Queen’s promises”(134) was justifiable at law. The effect of this decision was to reverse a trend which had been occurring – the application of provincial game laws to First Nations persons hunting off reserves.

After the Wesley decision, our courts began to interpret s. 12 of the NRTA as having extinguished the traditional livelihood respecting the trading, bartering or selling of the products of the hunt. They have done this despite the fact that Treaty 8 clearly expresses that the First Nations have the right to carry on their traditional livelihood. At the time Treaty 8 was negotiated, the traditional livelihood included trading, bartering and selling the products of the hunt.(135) Courts generally adopted the theory of Justice McNiven in the Strongquill (136) case that the effect of s. 12 of the NRTA was to “merge and consolidate” the treaty right into the new provision. Interestingly enough, Justice McNiven was the only one on the panel of appeal judges that used the term “merged and consolidated”. Yet, the Supreme Court of Canada in the Frank decision picked up on this term when it stated “It would appear that the overall purpose of paragraph 12 of the NRTA was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians”.(137) The Supreme Court cited the passage of Justice McNiven.

The Supreme Court of Canada (SCC) had the opportunity to revisit the NRTA hunting provision in a case arising in Treaty 8 territory in the Horseman decision.(138) The SCC again relied on the merger and consolidation theory to hold that the commercial aspect of hunting was extinguished by clause 12 of the NRTA. Mr. Horseman, a Treaty 8 Indian, was charged with selling a grizzly bear hide without the proper license contrary to the provincial Wildlife Act. He had been hunting for food and shot and killed a moose. Being unable to pack the moose out himself, he left it in order to go get some assistance. When he returned, he found that a grizzly bear was feasting on the carcass. When the grizzly became aware of his presence, it attacked him and he shot and killed it. Mr. Horseman skinned the grizzly and took the hide home. After a year had passed, Mr. Horseman was without work and in financial need. He went to the Fish and Wildlife agency and obtained a grizzly bear hunting license and sold the hide to feed his family. Defense counsel for Mr. Horseman argued that the term “usual vocations” used in the hunting clause of Treaty No. 8 protected the livelihood practiced at the time which included the taking and selling of meat, hides and other products of the hunt. The trial judge was convinced by the evidence and argument and acquitted Mr. Horseman on the basis of finding that Treaty 8 hunting rights included rights of trading and bartering in game. On appeal, the Court of Queen’s Bench set aside the acquittal and convicted Mr. Horseman and sentenced him to a minimum fine of one hundred dollars. The Alberta Court of Appeal upheld the Court of Queen’s Bench decision by holding that the effect of s. 12 of the NRTA was to restrict the Indian rights to hunt, fish and trap for food only.

On appeal to the Supreme Court of Canada, the Crown argued that s. 12 of the NRTA limited the hunting rights to hunting for food only and that Indians could no longer hunt for barter or sale. The court split in its decision four to three. The majority decision written by Justice Cory dismissed Mr. Horseman’s appeal and upheld the Queen’s Bench conviction. Although they agreed that Treaty 8 protected the commercial aspect of hunting, they held that the effect of s. 12 of the NRTA was to limit the hunting right to “for food only” purposes. The court essentially adopted the merger and consolidation theory. Notwithstanding that Mr. Horseman sold the hide for money “for food”, the majority took a narrow, legalistic approach to the words “for food” in s. 12 and found that Mr. Horseman’s actions fell outside such an interpretation. Thus, the provincial law was imposed on Mr. Horseman’s actions and he was convicted as a result. Justice Cory attempted to justify Parliament’s breach of the solemn treaty promise by arguing that there was a quid pro quo, or a trade off, where the area to hunt for food was enlarged beyond the treaty area.

The dissenting decision of the minority of the court was written by Madam Justice Wilson who took a large and liberal approach in interpreting s. 12 of the NRTA. She argued that the principles of interpretation relating to Aboriginal and treaty rights required a liberal interpretation in favour of First Nations. She held that Treaty 8 was a “solemn agreement” which First Nations leaders entered into only after they were given assurances that the laws of the Crown would be for the protection of their traditional way of life. Madam Justice Wilson, with two other Justices concurring, felt that in view of the facts, i.e., that Mr. Horseman shot the bear and sold the hide “for food”, ought to take a liberal interpretation of the s. 12 words to hunt “for food” and interpret these to mean hunting for “support and subsistence”. In this way, the minority felt that the actions of Mr. Horseman could fall within such an interpretation. Madam Justice Wilson, like Justice McGillivray in the Wesley decision, tried to avoid having to justify breaches of the Queen’s promises, while Justice Cory’s majority seemed to have no difficulty in doing so.

The Supreme Court of Canada in the Badger decision again visited s. 12 of the NRTA and this time rejected the merger and consolidation theory.(139) It held that the effect of s. 12 of the NRTA was to protect the treaty hunting rights so long as such treaty rights did not conflict with s. 12. Thus, they still held that the effect of s. 12 of the NRTA was to extinguish the “commercial aspect” of the Treaty 8 right to hunt, fish and trap but that the food aspect was preserved. Mr. Badger’s case was brought together with two other separate cases in a common appeal since they all shared the same issues. All three, Mr. Badger, Mr. Kiyawasew, and Mr. Ominayak were Treaty 8 Indians hunting for food on privately owned land within the Treaty 8 territory. All were charged with offenses under the provincial Wildlife Act and all were convicted at trial. In the events, Mr. Badger shot a moose on unposted brush land where willow and scrub were growing back. There was a farm house one quarter of a mile away from where he shot the moose. He was charged with shooting a moose out of season. Mr. Kiyawasew was hunting on a posted snow-covered field which was harvested that fall. He was charged with hunting without a license. Mr. Ominayak was hunting on uncleared muskeg where there were no fences, signs or buildings anywhere in the area. He was also charged with hunting without a license. All three were charged with provincial game laws even though they were hunting for food because they were not hunting on “unoccupied Crown land” but they were hunting on privately owned lands without permission of the owners. However, since the treaty right to hunt “for food” continued to exist, and based on the First Nations understanding of what “occupied lands” were, the court held that any private lands not put to visible use were open to “Indians” hunting for food. The court relied on the oral history of a Treaty 8 Elder and an historian to determine that at the time of the signing of Treaty 8, the First Nations would have understood occupied lands to mean fur trade posts, police posts, missions, farms and other settlements. They would have understood that these were visibly put to use. Thus, any lands not put to visible use would be open for hunting on. The court acquitted Mr. Ominayak because he hunted on lands which were not being put to visible use. To decide otherwise would be incompatible with his treaty right to hunt for food. Mr. Badger and Mr. Kiyawasew hunted on lands put to visible use which were incompatible with the treaty right to hunt since the lands had been farmed recently and buildings were in the vicinity.

Thus, although the court backed away from the merger and consolidation theory, the effect was the same, i.e., that the trading, bartering and selling aspect of the treaty promised a hunting right which was extinguished insofar as it was incompatible with the NRTA. The Supreme Court of Canada in Badger sanctioned the notion that the federal Crown could unilaterally abrogate its solemn treaty promises to First Nations – that it could impose laws which breached the Queen’s promises.

In another case, a Metis person successfully relied on s. 12 of the NRTA as a defense. The Ferguson case involved a man of mixed blood heritage who lived in northern Alberta and lived a relatively traditional Aboriginal lifestyle.(140) He was acquitted of a charge of hunting contrary to the provincial game act. The court heard evidence that he was a descendant of persons who took scrip as “Half-breeds” and his maternal great-grandparents were treaty Indians. Mr. Ferguson grew up culturally as a non-treaty Indian in an isolated northern Alberta community within the meaning of s. 2(h) of the 1927 Indian Act.(141)

Section 2

(d) “Indian” means

(I) any person of Indian blood reputed to belong to a particular band,

(ii) any child of such person,

(iii) any woman who is or was lawfully married to such person;

(h) “Non-treaty Indian” means any person of Indian blood who is reputed to belong to an irregular band or who follows the Indian mode of life, even if such a person is only a temporary resident in Canada.

 

 

The evidence showed that Mr. Ferguson spoke the Cree language as his first language and that the community in which he lived was entirely Cree speaking. He carried on the community practice of hunting and gathering as well as the usual Cree customs in respect of philosophy of life and lifestyle. Based on this, Judge Thomas Goodson held that Mr. Ferguson was a non-treaty Indian and fell within the 1927 Indian Act definition of an “Indian”. In this, Judge Goodson rejected s. 16(2) of the 1927 Indian Act (which excluded half-breed heads of a family as being an Indian) holding that Mr. Ferguson was an infant at the time the 1927 Indian Act was repealed and was therefore not a head of a family at any time that s. 16(2) was in force. Thus, Mr. Ferguson was not excluded from being a non-treaty Indian. Judge Goodson also addressed the issue of whether a “non-treaty Indian” is a person contemplated by s. 12 of the NRTA. He answered in the affirmative reasoning that in 1930 when the NRTA was passed, not all Indians in the Province of Alberta were “treaty Indians”. He further found that there “were pockets of Indians including, at least, the Rocky Mountain House Indians and the Lubicon Lake and Woodland Indians who had not entered into treaties.” He continued by stating that both “treaty and non-treaty Indians have throughout Canadian history been treated as wards of the Crown and the two signatories to the Agreement would not have intended to exclude such Indians as the aforementioned from hunting for food on unoccupied Crown land, especially considering those groups of Indians were occupying the most remote parts of Alberta where no other form of subsistence was possible.”

The Crown appealed the Ferguson case to the Court of Queen’s Bench which upheld Judge Goodson’s decision.(142) Queen’s Bench Justice Dixon held that despite the fact that Mr. Ferguson had left his isolated community to go to work as a wage labourer in the oilfield, such a disconnection from following the Indian mode of life through a casual or intermittent lifestyle would not be fatal to claiming to have been following an Indian mode of life. The Court of Queen’s Bench upheld the acquittal of Mr. Ferguson.

Another decision in Alberta involving Metis hunters using the non-treaty Indian defence is the Desjarlais and Willier case.(143) Mr. Desjarlais and his cousin Mr. Willier were staying at Mr. Desjarlais’ mothers in west central Alberta on an acreage. She asked the two young men to go hunting to feed the large extended family which was staying at her home. The two men shot at a deer and after some farmers heard shots and called the fish and game officers, the two men were charged with hunting offences under the provincial Wildlife Act. At trial, the judge heard evidence of the two men being “of Indian blood” and “living an Indian mode of life”, that is, of speaking Cree, of hunting, of an association with other “Indians” and other cultural practices. Although the two men also went to school and lived in small urban areas and worked at wage labour, the court, nevertheless, found that they continued to live “an Indian mode of life.” The Crown appealed but the Court of Queen’s Bench upheld the trial decision with respect to Mr. Desjarlais and sent the matter back to trial for Mr. Willier because it felt there was insufficient evidence of Mr. Willier’s “Indian blood”.(144) The Crown stayed the charges against Mr. Willier once he obtained an affidavit from his father, a treaty Indian, admitting paternity.

Thus, now we have two superior court decisions in Alberta which provide the authority for non-status Indians (or Metis) to enjoy the NRTA right to hunt for food free from the application of provincial game laws. These cases resulted from the non-status Indian defendants embracing the imposed laws in order to secure their interests in hunting and in preserving their cultural identity. The foregoing review illustrates the complexity of hunting issues arising in the Treaty 8 area. It illustrates the effects of imposed identities and imposed laws.


Conclusion

Hunting rights are a complex area. In the Treaty 8 territory such rights are made even more complex as a result of the imposition of laws of the state. The concept of “imposed law” provides an explanatory mechanism to understand why there is such a complexity. The imposition of legal categories on Aboriginal peoples who share the same area increases the complexity because certain benefits and rights appear to accrue to some categories and not others. The imposition of the Migratory Birds Convention Act and the Natural Resources Transfer Agreement have unilaterally restricted the First Nation’s treaty hunting rights and breached the Queen’s promises. These were statutes by the federal government which has jurisdiction over Indians and land reserved for Indians under s. 91(24). However, provincial game regulations have had an impact on Aboriginal peoples’ rights to hunt. Doug Sanders stated “while Indians were also mentioned in the constitution, there was no suggestion that Indian groupings were part of the political structure of the Canadian state. They were “‘objects of jurisdiction’ not ‘authors of their own destiny'”.(145) Aboriginal peoples in Canada have sought to be authors of their own destiny.

Kidder is critical of the fact that many writers have used the concept of “imposed law” in too narrow of a manner whereby it is argued that a greater power imposes its laws on a weaker group which reacts passively. In this, First Nations generally were in a powerless position compared to the Canadian state. However, Canada’s Aboriginal peoples generally did not react passively. They have tended to raise their concerns and protests to Indian agents, NWMP officers, missionaries or any local persons who would forward their concerns in writing.(146) On occasion, First Nations were more forceful about making their concerns known such as when the Beaver Indians of northeastern British Columbia turned prospectors back and would not allow them passage through their territory.(147) One way that First Nations reacted was to utilize the imposed laws to protect their rights such as in raising a treaty right defense in hunting cases. With the entrenchment of Aboriginal and treaty rights in the Constitution, Aboriginal peoples have embraced the imposed laws and legal and political processes to an even greater extent in order to press for their rights. The various categories of Aboriginal peoples are continually fighting for their own specific hunting rights which can differ from the other groups’ rights.


 

Notes:

1An earlier version of this paper was presented at the Treaty 8 Centennial Conference in Grouard, June 17-19, 1999.

2Treaty 8 Commissioners’ Report, (Ottawa: Queen’s Printer, 1966).

3Richard Price and Shirleen Smith, “Treaty 8 and Traditional Livelihoods: Historical and Contemporary Perspectives” (1993-1994) 9:1 Native Studies Review 51.

4Treaty 8 Commissioner’s Report, supra, note 2, p.6; see also Richard Daniel, “Indian Rights and Hinterland Resources: The Case of Northern Alberta” (1977) Masters Thesis, Department of Sociology, University of Alberta, at p. 95.

5For a detailed review of hunting rights in the prairie provinces see Kent McNeil, Indian Hunting, Trapping and Fishing Rights in the Prairie Provinces of Canada (Saskatoon: University of Saskatchewan Native Law Centre, 1983).

6Frank Tough, “Game Protection and the Criminalization of Indian Hunting in Ontario, 1892-1931” unpublished research paper prepared for the Ontario Native Affairs Secretariat, June 1994.

7Sandra B. Burman and Barbara E. Harrell-Bond, “Preface” in Sandra B. Burman and Barbara E. Harrell-Bond, The Imposition of Law (New York: Academic Press, 1979) at p. xiii.

8Brian Calliou and Cora Voyageur, “Aboriginal Economic Development and the Struggle for Self-Government” in Wayne Antony and Les Samuelson, eds., Power and Resistance: Critical Thinking About Canadian Social Issues (Halifax: Fernwood Publishing, 1998) 115 at pp. 116, 119 and 129; see also Randy Kapashesit and Murray Klippenstein, “Aboriginal Group Rights and Environmental Protection” (1991) 36 McGill Law Journal 925.

9Ibid.

10 Robert Kidder, “Toward an Integrated Theory of Imposed Law” in Sandra B. Burman and Barbara E. Harrell-Bond, The Imposition of Law (New York: Academic Press, 1979) p. 289.

11Ibid, H.W.O. Okoth-Ogendo, “The Imposition of Property Law in Kenya” in Sandra B. Burman and Barbara E. Harrell-Bond, The Imposition of Law (New York: Academic Press, 1979) p. 147.

12Ibid, p.147.

13Kidder, Toward an Integrated Theory…”, supra, note 10, p. 290.

14Ibid, p. 292.

15Ibid, p. 296.

16Ibid, p. 297.

17For an example of the oppression of First Nations through the imposition of laws and policies designed to suppress traditional ceremonial practices, see Katherine Pettipas, Severing the Ties That Bind: Government Repression of Indigenous Religious Ceremonies on the Prairies (Winnipeg: University of Manitoba Press, 1994).

18Alexandra Witkin, “To Silence a Drum: The Imposition of United States Citizenship on Native Peoples” (1995) 21:2 Historical Reflections 353.

19June Starr and Jane Collier, “Introduction: Dialogues in Legal Anthropology” in June Starr and Jane Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology (London: Cornell University Press, 1989) p. 1 at p. 24.

20Calliou and Voyageur, “Aboriginal Economic Development …”, supra, note 8, at p. 120.

21Tina Loo, Making Law, Order, and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994) at pp. 1-17 argues that Euro-Canadians saw law as “central to the making of a liberal order … constructed through a discourse of classical or laissez-faire liberalism” which produced a “system of domination, privileging the rights of the few over the many.”

22Peter Fitzpatrick and Loraine Blaxter, “Imposed Law in the Containment of Papau New Guinea Economic Ventures” in Sandra B. Burman and Barbara E. Harrell-Bond, The Imposition of Law (New York: Academic Press, 1979) p. 115 at p. 117.

23George Stanely, The Birth of Western Canada: A History of the Reil Rebellion (Toronto: U of Toronto Press, 1960) at p. 222.

24Treaty 8 Commissioners Report, Supra, note 2, p. 6.

25Brian Slattery, “The Hidden Constitution: Aboriginal Rights in Canada” in Menno Boldt and J. Anthony Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 114 at p. 115.

26Frank Speck, “Basis of American Indian Ownership of Land” (1915) 13 Old Penn Weekly Review 181 prompted the debate into whether Aboriginal societies had concepts of ownership before contact. See also, Eleanor Leacock, “The Montagnias ‘Hunting Territory’ and the Fur Trade” (1954) 56 American Anthropologist 1 and John H. Dowling, “Individual Ownership and the Sharing of Game in Hunting Societies” (1968) 70 American Anthropologist 502.

27See generally, L.C. Green and Olive P. Dickason, The Law of Nations and the New World (Edmonton: University of Alberta Press, 1993; Thomas Berger, A Long and Terrible Shadow: White Values, Native Rights in the Americas (Vancouver: Douglas and McIntyre, 1991).

28An example of these ideas can be found in Edward B. Tylor, Primitive Culture: Researches Into the Development of Mythology, Philosophy, Religion, Art and Custom, 2 Vols. (London: John Murray, 1871); see generally John S. Haller Jr., Outcasts From Evolution: Scientific Attitudes of Racial Inferiority, 1859-1900 (New York: McGraw-Hill, 1975).

29Robert Berkhofer, Jr., The Whiteman’s Indian: Images of the American Indian From Columbus to the Present (New York: Vintage Books, 1979).

30Ibid, from the back cover.

31R.G. Moyles and Doug Owram, “Specimens of a Dying Race: British Views of the Canadian Indian” in R.G. Moyles and Doug Owram, Imperial Dreams and Colonial Realities: British Views of Canada, 1880-1914 (Toronto: University of Toronto Press, 1988) 167.

32Ibid.

33Joseph Adams, Ten Thousand Miles Through Canada (London: 1875) at p. 84 as quoted in Moyles and Owram, “Specimens of a Dying Race” supra, note 31 at p. 177.

34Gail Kellough, “From Colonialism to Economic Imperialism: The Experience of the Canadian Indian” in John Harp and John R. Hofley, eds., Structured Inequality in Canada (Scarborough, Ontario: Prentice-Hall of Canada Ltd., 1980) 343 at p. 359.

35Paul Tennant, “Aboriginal Rights and the Penner Report on Indian Self-Government” in Menno Boldt and J. Anthony Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 321 at p. 322.

36St. Catherine’s Milling and Lumber Co. v. The Queen (1888) 14 Appeal Cases 46; For commentary on this case see Donald B. Smith, “Aboriginal Rights a Century Ago: The St. Catherine’s Milling Case of 1885, Hardened Attitudes Toward Native Land Claims” (1987) 67:1 The Beaver 4; and Kent McNeil, “Social Darwinism and Judicial Conceptions of Indian Title in Canada in the 1880’s” (1999) 38:1 Journal of the West 68.

37Ibid, at p. 54.

38Johnson and Graham’s Lessee v. McIntosh (1823) 8 Wheat. 543 at 574; for critical commentary on Chief Justice Marshall in this case and others, see Stephen Greymorning, “In the Absence of Justice: Aboriginal Case Law and the Ethnocentrism of the Courts” (1997) 17:1 Canadian Journal of Native Studies 1; see also John Hurley, “Aboriginal Rights, The Constitution and the Marshall Court”, (1982-1983) 17, Revue Juridique Themis, 403.

39Johnson and Graham’s Lessee v. McIntosh, supra, note 38.

40Stephen Greymorning, “In the Absence of Justice” Supra, note 38.

41R. v. Silyboy [1929] 1 D.L.R. 307.

42Delgamuukw et al., v. The Queen in Right of B.C. (1991 79 Dominion Law Reports (4th) 185 at p. 201; for a critical commentary on this case see Arthur J. Ray, “Creating the Image of the Savage in Defence of the Crown: The Ethnohistorican in Court” (1990) 6:2 Native Studies Review 13 and collection of papers in Frank Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen, (Lantzville, B.C.: Institute of Research on Public Policy and Oolichan Books, (1992); and B.C. Studies, Special Issue, (1992), No. 95.

43John L. Tobias, “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy” in Ian A.L. Getty and Antoine S. Lussier, eds., As Long As The Sun Shines and Water Flows: A Reader in Canadian Native Studies (Vancouver: University of British Columbia Press, 1983) 13.

44Berkhofer, The Whiteman’s Indian, supra, note 29 at p. 169.

45Frances Svensson, “Imposed Law and the Manipulation of Identity: The American Indian Case” in Sandra B. Burman and Barbara E. Harrell-Bond, The Imposition of Law (New York: Academic Press, 1979) p. 69.

46British North American Act, 1867, 30 & 31 Vict., c. 3. (U.K.).

47An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada 13 and 14 Victoria (1850) Cap. 42 (Canada).

48Clem Chartier, “‘Indian’: An Analysis of the Term As Used in Section 91(24) of the British North America Act, 1867” (1978-79) 43 Saskatchewan Law Review 37 at p. 57.

49An Act Providing for the Organization of the Department of Secretary of State of Canada, and for the Management of Indian and Ordinance Lands 31 Victoria (1868) Cap. 42 (Canada).

50An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs, and to Extend the Provisions of the Act 31 Victoria Cap. 42, 32 and 33 Victoria (1869) Cap. 6 (Canada). The enfranchisement of Indian women who married non-Indian men remained in the Indian Acts until 1985 when Bill C-31 amended the Act to eliminate this discrimination against Indian women. See Cora J. Voyageur, “Contemporary Indian Women” in David Alan Long and Olive Patricia Dickason, eds., Visions of the Heart: Canadian Aboriginal Issues (Toronto: Harcourt Brace, 1996) 93 for discussion of the impact of the early Indian Act on Indian woman and its legacy.

51An Act to Amend and Consolidate the Laws Respecting Indians 39 Victoria (1876) Cap. 18 (Canada).

52The Queen v. Howson (1894) Terr. Law Reports 492.

53Ibid, at p. 494.

54Re: Eskimo [1939] S.C.R. 104.

55R. v. Laprise [1978] 6 W.W.R. 85; for strong criticism of this case, see Anthony Jordan, “Who is an Indian?” [1977] 1 C.N.L.R. 22.

56Catherine Bell, “Who Are The Metis In Section 35(2)?” (1991) 29 Alberta Law Review 351 at p. 352.

57Delia Opekokew, The Political and Legal Inequities Among Aboriginal Peoples in Canada (Kingston: Institute of Intergovernmental Relations, 1987) at 7.

58Ibid.

59Ibid, at p. 9.

60Ibid, at p. 13.

61Charles Mair, Through the Mackenzie Basin, supra, at p. 69.

62J.E. Foster, “The Metis: The People and the Term” (1978) 3:1 Prairie Forum 79.

63Ibid.

64Nicole J.M. St.Onge, “Variations in Red River: The Traders and Freemen Metis of Saint-Laurent, Manitoba” (1992) 24 Canadian Ethnic Studies 1; see also Jacqueline Peterson and Jennifer S.H. Brown, eds., The New Peoples: Being and Becoming Metis in North America (Winnipeg: University of Manitoba Press, 1985).

65Paul C. Thistle, “The Twatt Family, 1780-1840: Amerindian, Ethnic Category, or Ethnic Group Identity?” (1997) 22:2 Prairie Forum 193.

66Evelyn Peters, Mark Rosenberg and Greg Halseth, “The Ontario Metis: Some Aspects of a Metis Identity” (1991) 23:1 Canadian Ethnic Studies 71.

67Ken Hatt, “Ethnic Discourse in Alberta: Land and the Metis in the Ewing Commission” (1985) 17 Canadian Ethnic Studies 64.

68For general discussions of this section of the Constitution, see Catherine Bell, “Who Are The Metis”, supra; Paul Chartrand, “‘Terms of Division’: Problems of ‘Outside Naming’ for Aboriginal People in Canada (1991) 2 Journal of Indigenous Studies 1; Thomas Issac, “The Power of Constitutional Language: The Case Against Using ‘Aboriginal Peoples’ as a Referent for First Nations” (1993-94) 19 Queen’s Law Journal 415.

69Section 35, Constitution Act, 1982, Schedule B of the Canada Act, 1982, c. 11 (U.K.).

70See for example Douglas Sanders, “The Indian Lobby” in Keith Banting and Richard Simeon, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen Publications, 1983) 301.

71Shelley D. Turner, “The Native American’s Right to Hunt and Fish: An Overview of the Aboriginal Spiritual and Mystical Belief System, The Effect of European Contact and the Continuing Fight to Observe a Way of Life” (1989) 19 New Mexico Law Review 377 at p. 380.

72Ibid, p. 381.

73Calvin Martin, Keepers of the Game: Indian-Animal Relationships and the Fur Trade (Berkeley: University of California Press, 1978) argues that the “Indian” hunters perceived a break in the pact between hunters and animals because the hunters believed the animals were giving them diseases (actually brought by Europeans) which led to the hunters abandoning traditional beliefs and overtrapping during the fur trade. For criticism of Martin’s Thesis, see the collection of essays in Shepard Krech III, ed., Indians, Animals, and the Fur Trade: A Critique of Keepers of the Game, (Athens: University of Georgia Press, 1981).

74Turner, “The Native American’s Right to Hunt and Fish…”, supra, p. 382.

75Ibid.

76Dick v. The Queen, [1983] 2 C.N.L.R. 134 at 147, (B.C.C.A.).

77Quoted in Dick v. The Queen, [1985] 2 SCR 309 (SCC), at p. 319.

78Dougald Brown, “Indian Hunting Rights and Provincial Law: Some Recent Developments” (1981) 39 University of Toronto Faculty of Law Review 121 at p. 131.

79Kenneth M. Lysyk, “The Rights and Freedoms of the Aboriginal Peoples of Canada” in Walter S. Tarnopolsky and Gerald A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell Company Ltd., 1982) 467 at 480.

80For an excellent discussion of proof of Aboriginal title, see Peter Douglas Elias, “Rights and Research: The Role of the Social Sciences in the Legal and Political Resolution of Land Claims and Questions of Aboriginal Rights” [1989] 1 C.N.L.R. 1.

81For example, in Delgamuukw, [1998] 1 C.N.L.R. 14 (S.C.C.), the Supreme Court of Canada has clarified that Aboriginal rights such as the right to hunt in an area can be proven without having to prove Aboriginal title to those lands.

82R v. Sparrow, (1990) 4 W.W.R. 410; for a discussion of this case see Thomas Isaac, “The Honour of the Crown: Aboriginal Rights and the Constitution Act, 1982; The Significance of R. v. Sparrow” (1992) 13:1 Policy Options/Politiques, 22.

83See Metis Aboriginal hunting rights cases: R. v. Grumbo [1996] 3 C.N.L.R. 122; R. v. Blais [1996] 3 C.N.L.R. 109; R. v. Powley [1999] 1 C.N.L.R. 153; and the Metis Aboriginal fishing rights case R. v. Morin and Daigneault [1996] 3 C.N.L.R. 157.

84R. v. Ferguson [1993] 2 C.N.L.R. 148.

85Ibid.

86For general discussions of treaties see Jean Friesen, “Magnificant Gifts: The Treaties With the Indians of the Northwest, 1869-76” (1986) (Series V) 1 Transactions of the Royal Society of Canada 50; and Richard Price, Legacy: Treaty Indian Relationships (Edmonton: Plains Publishing Incorporated, 1991).

87Chester Martin, Dominion Lands Policy, reprint edited by Lewis H. Thomas (Toronto: McClelland and Stewart, 1973).

88Brian Calliou, “Celebrating the Legacy of Treaty 8” (1999) 4:2 Legacy: Alberta’s Heritage Magazine 19; See also Harold Cardinal, “Indian Nations and Constitutional Change” in J. Anthony Long and Menno Boldt, eds., Governments in Conflict? Provinces and Indian Nations in Canada (Toronto: University of Toronto Press, 1988) 83 who states at p. 84 that “When treaties were signed between Indian First Nations and representatives of the Crown, the Indian First Nations viewed themselves as independent sovereign nations entering into formal treaty agreements …”.

89For a discussion of interpretation principles set out by the courts see Leonard I. Rotman, “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence” (1997) 46 University of New Brunswick Law Journal. 11.

90R. v. Badger [1996] 2 C.N.L.R. 77.

91See for example Richard Daniel, “The Spirit and Terms of Treaty Eight” in Richard Price, The Spirit of the Alberta Indian Treaties (Edmonton: Pica Pica Press, 1987) 47.

92Bennett McCardle, “Rules of the Game: The Development of Government Controls Over Indian Hunting and Trapping in Treaty Eight (Alberta) to 1930” unpublished manuscript (Ottawa: Treaty and Aboriginal Rights Research, Indian Association of Alberta, 1976) at p. 27.

93Brian Calliou, “Celebrating Treaty No. 8: What Is Its Significance One Hundred Years Later?” Unpublished paper presented to the Edmonton and District Historical Society on March 4, 1999; see also Dennis F. K. Madill, Treaty Research Report; Treaty Eight (Ottawa: Treaties and Historical Research Centre, Indian and Northern Affairs Canada, 1986) at p. 6.

94David W. Leonard, Delayed Frontier: The Peace River Country to 1909 (Calgary: Detselig Enterprises Inc. 1995) at p. 16.

95An account of the treaty negotiations is given by Charles Mair who was the Secretary of the 1899 Scrip Commission in Through the Mackenzie Basin: An Account of the Signing of Treaty No. 8 and the Scrip Commission, 1899 with Introductions by David W. Leonard and Brian Calliou (Edmonton: University of Alberta Press, 1999).

96Treaty 8 Commissioners Report, supra, note 2, p. 6.

97Ibid.

98Ibid.

99Bennett McCardle, Rules of the Game, supra, note 92.

100For example, Frank Oliver, businessman from Edmonton and Superintendent of Indian Affairs instructed the Deputy Superintendent General “to tell the Indians that they cannot kill beaver, because there are provincial laws against the killing of beaver.” as quoted in Richard Daniel, “Indian Rights and Hinterland Resources”, supra, note 4, p. 163.

101Price and Smith, supra p. 63.

102North-west Territories Act, S.C. 1886, c. 60, s. 11 (as amended 60-61 Victoria, Chapter 28).

103An Act to Further Amend ‘The Indian Act’, Chapter 43 RSC (1890), 53 Victoria, c..29, s..10.

104Douglas Sanders, “The Queen’s Promises”, in Louis Knafla, ed., Law and Justice in a New Land: Essays in Western Canadian Legal History, (Toronto: Carswell, 1986) 101 at p. 102.

105An Act For The Preservation of Game in The Unorganized Portions of the North-West Territories of Canada (1894) S.C. c..31.

106Ibid, section 4.

107Fumoleau, As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1930 (Toronto: McClelland and Stewart, 1973 p. 53.

108An Act For The Preservation of Game in The North-west Territories (1906) R.S.C. c. 151.

109The Game Ordinance, Order In Council of Canada of Wednesday, the 1st day of October, 1890.

110An Act to Amend Chapter 29 of the Ordinances of the North-west Territories 1903 (Second Session), Intitled “An Ordinance for the Protection of Game” (1906) S.A. c. 29.

111An Act for the Protection of Game (The Alberta Game Act) (1907) S.A. c. 14.

112Migratory Birds Convention Act, (1917) S.C.

113Janet Foster, Working For Wildlife: The Beginning of Preservation in Canada (Toronto: University of Toronto Press, 1978) at p. 134; For a more critical assessment, see Dan Gottesman, “Native Hunting and the Migratory Birds Convention Act: Historical, Political and Ideological Perspectives” (1983) 18 Journal of Canadian Studies 67.

114Janet Foster, Working for Wildlife, supra, note 113, at p.124.

115Ibid, pp. 144-145.

116R. v. Sikyea (1964) 46 W.W.R. 65.

117R. v. Stoney Joe [1981] 1 C.N.L.R. 117.

118Game Act, 1907 S.A. c.14, s. 11.

119R. v. Noel [1995] 4 C.N.L.R. 78.

120Ibid; For an analysis of Treaty 8 hunting and fishing rights as interferred by timber harvesting rights, see Monique M. Ross and Cheryl Y. Sharvit, “Forest Management in Alberta and Rights to Hunt, Trap and Fish Under Treaty 8” (1998) 36:3 Alberta Law Review 643.

121R. v. Norn [1991] 3 C.N.L.R. 135.

122Janet Foster, Working for Wildlife, supra, note 113, at p.116.

123R. v. Norn, at 144.

124R. v. Wolfe [1997] 1 C.N.L.R. 171.

125Natural Resources Transfer Agreement, 1930, 20 & 21 George V., c. 26 (U.K.); The NRTA was passed by each province, Parliament and the United Kingdom Parliament.

126For discussion of the NRTA see Frank Tough, “Introduction to Documents: Indian Hunting Rights, Natural Resources Transfer Agreements and Legal Opinions From the Department of Justice” (1995) 10:2 Native Studies Review 121; Brian Calliou, “The Natural Resources Transfer Agreement and Indian Hunting Rights Revisited” unpublished graduate studies research paper, 1998 Faculty of Law, University of Alberta

127Section 12, NRTA, 1930; Manitoba’s NRTA has numbered its identical hunting provision s. 13.

128Treaty 8 Commissioners’ Report, supra, note 2, at p. 6.

129R. v. Wesley [1932] 2 W.W.R. 337.

130Game Act S.A. 1922, c. 70, ss. 4, 16 and 17.

131. Douglas Sanders, “The Queen’s Promises”, supra, note 104, at p. 105.

132The appeal court considered extrinsic evidence with Justice McGillivray reviewing the Articles of Capitulation of 1760; the Treaty of Paris of 1763; the Royal Proclamation of 1763; the St. Catherine’s Milling case; the A.G. Canada v. A.G. Quebec and A.G. Ontario case; the Dominion of Canada v. Ontario case; documents surrounding the Rupert’s Land transfer; and the Treaty Commissioner’s report.

133R. v. Wesley

134Douglas Sanders, “The Queen’s Promises”, supra, note 104.

135Arthur J. Ray. “Commentary on the Economic History of the Treaty 8 Area” (1995) vol. 10:2 Native Studies Review 169.

136R. v. Strongquill (1952) 8 W.W.R. 247.

137R. v. Frank [1975] 1 SCR 95.

138R. v. Horseman (1990) 55 C.C.C. (3d) 353; For commentary on this decision see Frank Tough, “Introduction to Documents”, supra, note 126 and Catherine Bell, “Reconciling Powers and Duties: A Comment on Horseman, Sioui and Sparrow” (1990), 2:1, Constitutional Forum Constitutionnel, 1.

139R. v. Badger [1996] 2 C.N.L.R. 77; For a critical discussion of this decision see Catherine Bell, “R. v. Badger: One Step Forward And Two Steps Back?” (1997) 8:2, Constitutional Forum Constitutionnel, 21.

140R. v. Ferguson [1993] 2 C.N.L.R. 113 (Prov. Ct.).

141. Indian Act, R.S.C. 1927, Cap. 98.

142R. v. Ferguson [1994] 1 C.N.L.R. 117 (Q.B.).

143R. v. Desjarlais and Willier [1996] 1 C.N.L.R. 148 (Prov. Ct.).

144R. v. Desjarlais and Willier [1996] 3 C.N.L.R. 113 (Q.B.).

145Douglas Sanders, “Words and Rights: The Legal Conceptualization of Indigenous Populations” in Commission on Folk Law and Legal Pluralism Vol. 1 (Ottawa: CFLLP, 1983).

146Calliou and Voyageur, “Aboriginal Economic Development”,supra, note 8, for a discussion of various ways Aboriginal peoples have resisted state intrusion into their lives.

147David Leonard, Delayed Frontier, supra, note 94.

 

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