R. v. Horseman [1990] 1 S.C.R. 901

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Bert Horseman                   Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and

 

The Attorney General of Manitoba and

the Attorney General for Saskatchewan                                                       Interveners

 

indexed as:  r. v. horseman

File No.:  20582.

1989:  November 27; 1990:  May 3.

Present:  Dickson C.J. and Lamer, Wilson, La Forest, L’Heureux‑Dubé, Gonthier and Cory JJ.

on appeal from the court of appeal for alberta

    Indians ‑‑ Hunting rights ‑‑ Treaty Indian killing bear in self‑defence and later selling hide ‑‑ Alberta Wildlife Act prohibiting trafficking in wildlife without a licence ‑‑ Whether prohibition applies to Treaty 8 Indians ‑‑ Whether Treaty 8 hunting rights limited by 1930 Natural Resources Transfer Agreement ‑‑ Wildlife Act, R.S.A. 1980, c. W‑9, ss. 18, 42 ‑‑ Treaty No. 8 ‑‑ Natural Resources Transfer Agreement, 1930, para. 12.

    Appellant, a Treaty 8 Indian, killed a grizzly bear in self‑defence while hunting moose for food.  He did not have at the time a licence under the Alberta Wildlife Act to hunt grizzly bears or sell their hides.  A year later, in need of money to support his family, he purchased a grizzly bear hunting licence and sold the grizzly hide.  This was an isolated act and not part of any planned commercial activity.  Appellant was charged with unlawfully trafficking in wildlife, contrary to s. 42 of the Wildlife Act.  At trial, he argued that the Act did not apply to him and that he was within his Treaty 8 rights when he sold the bear hide.  This treaty secured the Indians’ right “to pursue their usual vocations of hunting, trapping and fishing . . . subject to such regulations as [might] from time to time be made by the Government of the country”.  The trial judge found that the appellant’s Treaty 8 hunting rights included the right to barter and acquitted him.  The summary conviction appeal court set aside the acquittal and convicted the appellant.  The court held that the Alberta Natural Resources Transfer Agreement of 1930 had limited the Treaty 8 hunting rights to a right to hunt only for food.  The Court of Appeal upheld the decision.

    Held (Dickson C.J. and Wilson and L’Heureux‑Dubé JJ. dissenting):  The appeal should be dismissed.

    Per Lamer, La Forest, Gonthier and Cory JJ.:  Section 42 of the Alberta Wildlife Act is a provincial law of general application which is applicable to Indians pursuant to s. 88  of the Indian Act  so long as it does not conflict with a treaty right.  The hunting rights reserved to the Indians in 1899 by Treaty No. 8 included hunting for commercial purposes, but these rights were subject to governmental regulation and have been limited to the right to hunt for food only ‑‑ that is to say, for sustenance for the individual Indian or the Indian’s family ‑‑ by para. 12 of the Transfer Agreement.  In exchange for the reduction in the right to hunt for purposes of commerce, the Crown widened the hunting territory and the means by which the Indians could hunt for food.  The federal government’s power to make such a modification unilaterally is unquestioned.  Here, the appellant’s sale of the bear hide was part of a “multi‑stage process” which might include purchasing food for nourishment.  The sale of the bear hide constituted a hunting activity that had ceased to be that of hunting “for food” but rather was an act of commerce.  As a result it was no longer a right protected by Treaty No. 8, as limited by the Transfer Agreement of 1930.  The application of s. 42 of the Wildlife Act to the appellant was therefore not precluded by s. 88  of the Indian Act .  The fact that a grizzly bear was killed by the appellant in self‑defence or the fact that he obtained a grizzly bear hunting permit after he was in the possession of a bear hide is irrelevant to a consideration of whether there has been a breach of s. 42.  The grizzly bear is in a precarious position, and trafficking in bear hides, other than pursuant to the provisions of the Wildlife Act, threatens its very existence.  Section 42 is valid legislation enacted by the government with jurisdiction in the field.  It reflects a bona fide concern for the preservation of a species.

    Per Dickson C.J. and Wilson and L’Heureux‑Dubé JJ. (dissenting): Indian treaties should be given a fair, large and liberal construction in favour of the Indians.  They are sui generis, being the product of negotiation between very different cultures.  Courts must therefore look at the broader historical context to ensure that they reach a proper understanding of the meaning that particular treaties held for their signatories at the time.  In 1899, the Indians were concerned that the most important aspect of their way of life, their ability to hunt and fish, not be interfered with.  The language of Treaty No. 8 embodied a solemn engagement to Indians that their means of livelihood would be respected, and this promise was the sine qua non for obtaining their agreement to enter into the treaty.  In guaranteeing the Indians the right to pursue their usual vocations of hunting, trapping and fishing “subject to such regulations as may from time to time be made by the Government of the country”, the Canadian government committed itself to regulate hunting in a manner that would respect the Indians’ lifestyle and the way in which they had traditionally pursued their livelihood.

    Paragraph 12 of the Transfer Agreement was intended to respect the guarantees enshrined in Treaty No. 8, and the modifications to the areas within which Treaty 8 Indians would thereafter be able to engage in their traditional way of life should not be viewed as an attempt to abrogate or limit the Indians’ rights to hunt and fish.  Given the government’s solemn commitment to Treaty 8 Indians, the term hunting “for food” in para. 12 should be construed as encompassing hunting for support and subsistence, which includes hunting in order to exchange the product of the hunt for other items, as opposed to purely commercial or sport hunting.  Paragraph 12 must also be construed as conferring on the province of Alberta the power to regulate sport hunting and hunting for purely commercial purposes rather than as enabling it to place serious and invidious restrictions on traditional Indian hunting practices.

    The killing of the bear in this case was not an act of “hunting”;  it was an act of self-defence.  Moreover, the sale of the hide was an isolated transaction for the purpose of support and subsistence.  The appellant’s conduct, therefore, is not caught by s. 42 of the Alberta Wildlife Act, which is applicable to Treaty 8 Indians only to the extent that they are engaged in commercial or sport hunting.

Cases Cited

By Cory J.

    Applied:  Frank v. The Queen, [1978] 1 S.C.R. 95; R. v. Sutherland, [1980] 2 S.C.R. 451; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; referred to:  Simon v. The Queen, [1985] 2 S.C.R. 387; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247; Myran v. The Queen, [1976] 2 S.C.R. 137.

By Wilson J. (dissenting)

    Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. White and Bob (1964), 50 D.L.R. (2d) 613, aff’d [1965] S.C.R. vi; R. v. Smith, [1935] 3 D.L.R. 703; R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247; Frank v. The Queen, [1978] 1 S.C.R. 95; Prince and Myron v. The Queen, [1964] S.C.R. 81; R. v. Wesley, [1932] 2 W.W.R. 337; Sikyea v. The Queen, [1964] S.C.R. 642; R. v. George, [1966] S.C.R. 267; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; R. v. Sutherland, [1980] 2 S.C.R. 451.

Statutes and Regulations Cited

An Act further to amend “The Indian Act ” chapter forty‑three of the Revised Statutes, S.C. 1890, c. 29, s. 10.

Constitution Act, 1867 .

Constitution Act, 1930, 20 & 21 Geo. 5, c. 26 (U.K.) [reprinted in R.S.C. 1970, App. II, No. 25], s. 1.

Indian Act, R.S.C. 1927, c. 98, s. 69.

Indian Act, R.S.C. 1970, c. I‑6, s. 88 .

Natural Resources Transfer Agreement [confirmed by the Constitution Act, 1930], para. 12.

Treaty No. 8 (1899).

Unorganized Territories’ Game Preservation Act, 1894, S.C. 1894, c. 31, ss. 2, 4 to 8, 26.

Wildlife Act, R.S.A. 1980, c. W‑9, ss. 1(s), 18, 42.

Authors Cited

Daniel, Richard. “The Spirit and Terms of Treaty Eight.”  In The Spirit of the Alberta Indian Treaties.  Edited by Richard Price.  Montréal:  Institute for Research on Public Policy, 1979.

Fumoleau, René.  As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870‑1939.  Toronto:  McClelland and Stewart, 1973.

Hickey, Lynn, Richard L. Lightning and Gordon Lee, “T.A.R.R. Interview with Elders Program”.  In The Spirit of the Alberta Indian Treaties.  Edited by Richard Price.  Montréal:  Institute for Research on Public Policy, 1979.

La Forest, G. V.  Natural Resources and Public Property under the Canadian Constitution.  Toronto:  University of Toronto Press, 1969.

Laird, David, J. Ross and J. McKenna.  “Report of Commissioners for Treaty No. 8.”  In Treaty No. 8 Made June 21, 1899 and Adhesions, Reports, etc.  Ottawa:  Reprinted by Queen’s Printer, 1966.

O’Chiese, Peter, et al.  “Interviews with Elders.”  In The Spirit of the Alberta Indian Treaties.  Edited by Richard Price.  Montréal:  Institute for Research on Public Policy, 1979.

Ray, Arthur J.  Commentary on Economic History of Treaty 8 Area (Department of History, University of British Columbia, 1985) [unpublished].

    APPEAL from a judgment of the Alberta Court of Appeal (1987), 53 Alta. L.R. (2d) 146, 78 A.R. 351, [1987] 5 W.W.R. 454, [1987] 4 C.N.L.R. 99, dismissing the appellant’s appeal from a judgment of Stratton J. (1986), 69 A.R. 13, [1986] 2 C.N.L.R. 94, allowing the Crown’s appeal from the appellant’s acquittal by Wong Prov. Ct. J., [1986] 1 C.N.L.R. 79, on a charge of trafficking in wildlife.  Appeal dismissed, Dickson C.J. and Wilson and L’Heureux‑Dubé JJ. dissenting.

 

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