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Treaty Hunting Rights Protected


Simon v. The Queen
Nov. 21, 1985
Supreme Court of Canada

James Simon, a Micmac Indian from Nova Scotia, was convicted under the provincial Lands and Forest Act for possession of a rifle and shotgun cartridges. Simon argued that he was not guilty of the offence based on his right to hunt under the Treaty of 1752 and s. 88 of the Indian Act. The Treaty said that the Micmacs have the "free liberty of hunting and fishing as usual" and s. 88 provided that provincial laws of general application applied to Indians, subject to the terms of any treaty. Mr. Justice Dickson, Chief Justice of the Supreme Court of Canada, for the Court, upheld James Simon's arguements and found not guilty by allowing his appeal.

The Supreme Court made the following important findings in allowing the appeal:

1. The Treaty of 1752 was validly created by competent parties with the intention of establishing "mutually binding obligations which would be solemnly respected."

2. The Treaty, as it was worded, constituted a positive source of protection against infringements on hunting rights." This supports the view that Indian treaties should be given a "fair, large and liberal construction in favour of the Indians."

3. There is an implicit right in the Treaty that James Simon "has the right to possess a gun and ammunition in a safe manner in order to be able to exercise the right to hunt." In other words, a hunting right, to be effective, includes "those activities reasonably incidental to the act of hunting itself. . ."

4. An Indian treaty is unique; it is "an agreement sui generis (unique) which is neither created nor terminated according to the rules of international law." Once a valid treaty has been entered into, the burden is on the Crown to prove that treaty rights have been validly terminated. Strict proof is required of the fact that a treaty has been extinguished.

5. There was no evidence that Simon was hunting from a highway off the reserve, which would have raised different questions since the Mousseau case forbade this sort of activity under certain circumstances.

6. In order to establish Indian traditional rights, evidence need not be conclusive since Indians did not keep written records and their traditions were oral in nature.

7. Where terms of a treaty come into conflict with federal legislation, the federal laws prevail "subject to whatever may be the effect of s. 35 of the Constitution Act, 1982." This raises for the first time the suggestion that s. 35, which, protects "existing treaty rights", might prevail over even federal legislation. This issue was not pursued further by the Court.

8. The provincial law, although designed to promote the preservation of wildlife by placing seasonal limitations and licencing requirements on the right to possess a rifle and ammunition, tries to restrict James Simon's right to hunt under the Treaty. These provisions conflict with Simon's "right to possess a firearm and ammunition in order to exercise his free liberty over the lands covered by treaty." In circumstances where such a conflict arises, "the terms of the treaty prevail."

This is an exciting decision for Indian hunters across Canada. It recognizes the importance of the treaties and treaty hunting rights which cannot, in certain circumstances, be restricted by provincial legislation. It would now appear that Indians exercising their treaty rights should be at free liberty to do so unrestricted by such provincial legislation as that dealing with the carrying of unregistered firearms, carrying uncased weapons, perhaps loaded firearms, etc., as long as those activities are done in a safe manner.

Although the treaty provisions in Saskatchewan are different from those in Nova Scotia and the terms of the Natural Resources Transfer Agreement affect Indian hunting rights in Saskatchewan, the Supreme Court decision in Simon is a positive decision in support of protecting treaty hunting rights from provincial regulations which are in breach of those rights. This decision will be of great assistance to Indian hunters in Saskatchewan in their fight to protect not only their hunting rights but their treaty rights in general.

Arthur Dick v. The Queen
October 31, 1985
Supreme Court of Canada

Arthur Dick was a non-treaty Indian member of the Alkali Lake Band in B.C. who was charged with killing a deer out of season without a permit contrary to the provincial Wildlife Act. Arthur Dick killed the deer for food on traditional hunting grounds off the reserve. He argued that the provincial law impaired his status and capacity as an Indian and was invalid because only the Federal Government could regulate with respect to Indians under s. 91(24) of the Constitution Act, 1867 (formerly the B.N.A. Act, 1867). He also argued that provincial laws, if they were of general application, do not become part of the federal law under s. 88 of the Indian Act.

The Supreme Court supported his conviction in this case. Mr. Justice Beetz, speaking for the Court, found that the B.C. Wildlife Act was a law of general application which applied to Arthur Dick by its own force, or even if it did not affect him as an Indian, this law became part of the federal law by "referential incorporation" under s. 88 of the Indian Act. The same basic approach was taken in the Jack and Charlie case.

Jack and Charlie v. The Queen
October 31, 1985
Supreme Court of Canada

The two accused were Coast Salish Indians who were charged with hunting deer out of season contrary to the Wildlife Act of B.C. The deer had been killed for use in an ancient religious ceremony involving the burning of raw deer meat.

Treaty Hunting Rights Protected

The accused argued that the Act should not apply to them as it interfered with their freedom of religion; that in interfering with their religion the legislation affected their Indianness by purporting to regulate the accused qua Indians (which provincial legislation couldn't do); and hunting went to the root of their culture and way of life so that its prohibition affected them qua Indians. It should also be noted that the incident occurred before the Charter of Rights and Freedoms was proclaimed.

None of the lower courts in B.C. supported the Indians' arguements and upon appeal to the Supreme Court, the unanimous judgement of the Court was to dismiss the appeal. They held that the Wildlife Act's prohibition of killing deer raised no question as to freedom of religion or the practice of an aboriginal religion. There was no suggestion that the deer were killed as part of a ceremony or that the Act interfered with or prohibited the Indians' religious practices which could be carried out with deer meat kept in storage. In other words, the hunting itself was not a religious practice but merely a motive for obtaining the meat to proceed with a religious ceremony.

The arguement that the hunting went to the root of Indian culture and any legislation which prohibited hunting was inapplicable if it affected Indians qua Indians was dismissed. They found that following the reasoning in an earlier Supreme Court decision, Kruger and Manuel, (1978) 1 S.C.R. 104, the Wildlife Act was a law of general application and applied to Indians under s. 88 of the Indian Act or of its own force. This provincial legislation applied so long as it did not "impair the status and capacities of the accused as Indians. " They concluded that there was no evidence from which it could be inferred that the Wildlife Act was directed against Native persons in any unfair or discriminatory way. Neither was there any evidence that the legislation impaired the status and capacities of the accused as Indians.

The Jack and Charlie and Dick cases can be distinguished on several grounds. First, they involved hunting in an area not covered by treaty. Secondly, the accused in B.C. were hunting in an area not covered by the Natural Resources Transfer Agreement which specifically recognizes that Indians can hunt at all seasons of the year as long as they are hunting for food and on land to which they have a right of access. Thirdly, the court was careful to point out that the incident occurred before the Charter of Rights and Freedoms was proclaimed. Perhaps the religious arguement could be raised again as a breach of the Charter provisions.

Although the Jack and Charlie case and the Dick case did not result in favourable decisions in support of Indian rights, they bare limited to their own facts. The Simon case recognizes the protection provided Indian hunters covered by treaties. Probably, much of the reasoning in the B.C. cases would not apply to hunters in Saskatchewan. Fotunately, the Supreme Court still recognizes the importance of the treaties.