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Recent Court Cases Affecting Saskatchewan Indians

Delia Opekokew and David Knoll

1. Federation of Saskatchewan Indians, Inc., et al. v. Her Majesty the Queen and the Right Honourable Brian Mulroney, Prime Minister of Canada (Supreme Court of Ontario, March, 1985)

The Federation of Saskatchewan Indian Nations, along with the Indian Association of Alberta, Treaty Eight Tribal Association of British Columbia, and George Ernest Daniels on behalf of the Chiefs of Treaty One in Manitoba, together on behalf of an unincorporated body, the Prairie Treaty Nations Alliance (P.T.N.A.), launched an action to seek an order establishing the entitlement of the P.T.N.A. to be invited to participate at the First Ministers' Conference 1985 on aboriginal constitutional matters.

The P.T.N.A. had been chosen and delegated by the Indian First Nations of the Prairie Region and northeastern British Columbia to be the primary entity to speak on their behalf at the First Ministers' Conference. Because of the diverse constituency of the Assembly of First Nations and the dominance of non-treaty aboriginal peoples at the last two conferences, the direct and substantive discussion of constitutional issues relating to the treaties occupied almost a negligible part of the conferences.

Recent Court Cases Affecting Saskatchewan Indians

Delia Opekokew and David Knoll

SASKATCHEWAN INDIAN      JULY 1985      p08  
However, the court ruled against our action. On March 29, 1985, the Supreme Court of Ontario decided that the matter of the representatives of the Prairie Treaty Nations Alliance cannot be made by the courts as it is a political decision. Justice Horace Krever stated, ". . The determination of the appropriate representatives of the aboriginal peoples is in essence a political determination, that is to say, a determination that cannot properly be made by the Courts."

Nevertheless, the decision provided the P.T.N.A. with the impetus to pressure the Government of Canada, in particular, the Prime Minister, who is personally required pursuant to Section 37.1 of the Constitution Act, 1982 to extend the invitation.

2. Guerin, et al. v. Her Majesty the Queen

On November 1, 1984, the Supreme Court of Canada rendered a historically significant decision in the Guerin or Musqueam case. For the first time the highest court in Canada held that the Federal Government, namely the Department of Indian Affairs and its agents, could be held legally responsible for any improprieties in their dealings with surrendered Indian lands when it is clearly demonstrated that they failed to act in the best interest of the Indian band, which amounted to an equitable fraud.

Chief Guerin and other members of the Musqueam Band of British Columbia successfully sued the Federal Government for ten million dollars ($10,000,000) in damages for the surrender and improper lease of 400 acres of reserve land to the Shaughnessy Heights Golf Club.

The Supreme Court held that D.I.A. and its agents had breached their "fiduciary obligation" and thereby committed an "equitable fraud" when they induced the Band to surrender its land and enter into a lease without fully disclosing the terms of the lease; by ignoring the Band's understanding of the specific terms of the lease; and by entering into a lease agreement on terms which were not favourable to the Band. In other words, the court held that the Crown breached its legal obligations and thereby committed an equitable fraud on the Musqueam Band by failing to act in the Band's best interest when they entered into an unfair lease.

The Guerin case has and will be exhaustively studied by legal experts and will form the basis for many legal arguments and submissions on behalf of Indian bands who feel they have been similarly wronged.

Many important legal principles have been raised by the Guerin case which will or could have an impact on Indian bands in Saskatchewan. For example, the Supreme Court recognized that the special aboriginal rights of Indian people arose prior to the Royal Proclamation and have existed from time immemorial. These rights formed the subsequent basis for the unique relationship which developed between the Crown and the Indian people. That in turn gave rise to the "fiduciary obligation" placed on the Crown to act in the best interests of the Indian people.

The question in Saskatchewan is whether this fiduciary obligation extends to unsurrendered reserve land as well since the Musqueam case dealt of only surrendered land? Arguably it does since at the time of the Treaties most tracts of land in western Canada were allegedly surrendered to the Crown and as a result certain fiduciary obligations arose under and after treaty which the Crown must honour.

If therefore, a Saskatchewan band, after all the evidence is accumulated, can satisfactorily prove that the Crown has either fraudulently mismanaged or otherwise fraudulently dealt with their land they will likely succeed in an action against the Crown for equitable fraud in that the Crown breached their fiduciary obligation.

However, the Supreme Court also ruled in the Guerin case that the legal action must be brought within six years from the time the breach or fraud is first discovered; that being the limitation period under the circumstances in Guerin. Accordingly, if the Musqueam Band had brought their action more than six years after they first discovered the fraud, they would have been statute barred and unsuccessful in their action.

Since it also might apply to them Saskatchewan bands must bear this limitation period in mind if they hope to succeed in any of their claims. Some lawyers are now debating whether such a limitation period applies in light of provisions under the Canadian Constitution and the different legal circumstances of treaty Indians in the Prairie Provinces. Other questions to be clarified are at what time the fraud is first determined to be discovered and what type of evidence is required to establish this fraud?

Recent Court Cases Affecting Saskatchewan Indians

Delia Opekokew and David Knoll

Regardless of the many legal questions the Guerin decision raises, it isa historically significant case because it clearly recognizes the Crown's obligations to Indian people; it reaffirms the special place of Indian people within Canadian confederation; and it demonstrates that the highest court in Canada is prepared to rectify past injustices perpetrated on Indian people.

3. Current Hunting and Fishing Cases

Over the past several years Indian hunters and fishermen have witnessed dramatic changes to their treaty hunting and fishing rights as a result of various court decisions and legislative amendments. The Legal Services Unit of the F.S.I.N. with their lawyer David Knoll in Saskatoon, Ron Cherkewich from Prince Albert, other private lawyers and the Indian Hunting and Fishing Rights Commission of the Federation, have sought to combat these changes either through the courts or through sometimes heated discussion with representatives from the federal or provincial governments.

In the area of hunting, the two most significant areas of recent litigation concern the right of Indian hunters to hunt on private unposted lands or from public highways. The situation in Saskatchewan, until relatively recently, was that treaty Indians had an implied right of access to hunt on private unposted land as long as they were hunting for food and not hunting in a dangerous manner. That is now altered and the right to hunt as before on private property is changed.

After the Provincial Government amended s.38(6) of The Wildlife Act and the Saskatchewan Court of Appeal rendered their decision on the Horse case in September, 1984, (which is now before the Supreme Court on appeal) the situation, until altered, is that treaty Indian hunters cannot trespass onto private posted or unposted land unless they have either express or implied permission from the landowner, or if they can demonstrate to the satisfaction of the court that these are lands to which they have a right of access by "custom or usage". the significance of this change is most dramatically felt in central and southern Saskatchewan where most land is privately held and might be thereby closed to Indian hunting.

The Legal Services Unit and lawyers for Indian hunters are now arguing that the change to the legislation was unconstitutional. They are also trying to determine what the court means by "implied or express permission" and what access by "custom and usage" means. All this has resulted in lengthy litigation and complicated legal arguments to clarify these and other points of law in favour of preserving Indian hunting rights.

The Saskatchewan Court of Appeal has also consistently but sometimes with unclarity ruled that hunters, Indian as well as non-Indian, cannot hunt from "public highways"; and this includes spotlighting. The question this raises is whether all roads in Saskatchewan are closed to Indian hunting under all circumstances or are there some roads under certain circumstances where hunting is permitted? As a result of the Court of Appeal's uncertainty on this issue, the lawyers are spending considerable time defending Indian hunters charged with illegally hunting from various roadways in Saskatchewan. These lawyers also note that there appear to be few non-Indian hunters similarly charged, although they are equally liable for this offence.

Other hunting complaints frequently concern the trespass on to reserves by conservation officers and R.C.M.P. constables who are enforcing provisions of the Migratory Birds Convention Act, the Fisheries Act or The Wildlife Act. The Hunting and Fishing Commission and the lawyers are considering ways and means to address this problem. Some bands are contemplating passing bylaws to control hunting and fishing on reserves and thereby exclude outside interference.

In the area of fishing, the most frequent charge referred to the Federation's lawyer is one of fishing without an Indian fishing permit. In the past, most Indian fishermen understood that only evidence of a treaty number was required with the nets. But now the Department of Parks and Renewable Resources, under s.37 of the Fisheries Act Regulations, is enforcing the requirement that Indian fishermen with nets first obtain a permit. Many fishermen who are unaware of this change in policy are ending up with fishing charges and because this is a federal regulation they are having difficulty defending themselves against it in court. This matter is being brought to the Federal Government's and Provincial Government's attention by the Indian Hunting and Fishing Commission.

There are other legislative changes being made to the Fisheries Act Regulations, without prior consultation with Indian fishermen, which will have a direct impact on Indian fishing rights. Similarly the Indian Hunting and Fishing Commission hopes to address this situation before it gets out of hand and Indian fishing rights are further eroded.