The appellants were Cree and status Indians under No. 8. They were each caught hunting for food on private land and charged under the Wildlife Act. At trial the appellants argued that they were entitled to hunt as part of their aboriginal treaty rights. The Crown argued that the Natural Resources Transfer Agreement of 1930 had extinguished the rights granted by Treaty No. 8. The accused were convicted and the convictions were upheld on appeal.
- Can government regulation modify treaty rights?
- Does the Sparrow test for extinguishment apply to treaty rights?
Appeal allowed, new trial ordered.
No. 8 gave the aboriginals the right to hunt and fish on the lands in question subject to government regulations. This was modified by the Natural Resources Transfer Agreement, which states that the laws respecting game in the province apply to aboriginals, but do not take away their right to hunt at any time on unoccupied Crown lands or any other land where they have a right of access (s. 12).
Cory concludes that the treaty included two limitations on the aboriginal hunting rights – a geographical restriction and restrictions imposed by government regulations. He then lays out some main principles of interpretation when dealing with treaties:
- it is an exchange of solemn promises and is sacred;
- the honour of the Crown is always at stake when dealing with aboriginals;
- it is always assumed that the Crown intends to fulfill its promises;
- any ambiguities in the treaty must be decided in favour of aboriginals;
- the onus of proving that an aboriginal treaty or right has been extinguished rests on the Crown;
- the words in treaties are not interpreted strictly (textual), but instead in the way that would have been understood by the aboriginals at the time they were created; and
- oral evidence surrounding the creation of treaties must be given weight due to oral agreements being the norm for aboriginal peoples.
Cory finds that the Natural Resources Transfer Agreement did not extinguish the treaty, but simply modified it. It did not, however, modify the geographical limitations on the hunting right. In the case at bar, two of the appellants did not have a treaty right to hunt as they were hunting on occupied lands, but Ominayak was on seemingly unoccupied lands, so it must be determined if the regulations requiring a hunting permit were justifiable, or an infringement of his treaty right.
Cory holds that the aboriginals would have understood at the time of the treaty that the rights were subject to government regulations, thus regulations can be permitted to infringe on the treaty right if they are demonstrably justified. He states the Sparrow test applies equally to treaty rights as it does to aboriginal rights under s. 35. The two main purposes of the regulations are public safety and conservation. Applying the Sparrow test the public safety concerns do not violate the treaty rights, but the conservation ones do as they do not guarantee the aboriginals preferential access, nor are they exempted from the licensing fees.
As the conservation principles are a prima facie violation of the treaty rights, and as no evidence was given at trial dealing with justification, Cory orders a new trial to discover relevant evidence.
Sopinka writes a concurring judgment that agrees with the majority’s disposition, but disagrees insofar as he does not believe that both the treaty and the Natural Resources Transfer Agreement still exist. He holds that the Natural Resources Transfer Agreement merged the treaty rights under it, and thus the Agreement is the sole current source for aboriginal claims dealing with hunting rights.
- Establishes interpretation principles for dealing with aboriginal treaties.
- Modern legislation can modify treaty rights, but any modification that prima facie infringes on a treaty right must be justified using the Sparrow test.