Two hunters from Six Nations in Ontario who were initially found to be exercising their treaty right to hunt for sustenance are to be sentenced instead, a Court of Queen's Bench decision said.
The hunters originally had the charges against them under the Wildlife Act acquitted, but that decision was appealed by the Crown.
The Crown argued, among other things, that the trial judge erred when they found the two hunters were lawfully exercising their right to hunt as per section 12 of the Natural Resources Transfer Act (NRTA).
Section 12 of the NRTA states the following:
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.
The trial judge ruled the two hunters were lawfully exercising their right to hunt for sustenance and ordered the charges against them dismissed.
But the Crown argued — and the Court of Queen's Bench found — that the trial judge misinterpreted section 12 of the NRTA.
The court found, through a "holistic approach" to the interpretation of the NRTA's section, those entitled to treaty hunting rights are subject to the geographical areas of the three Prairie provinces.
"This means only 'Indians' attached to Treaty 2, 4, 5, 6, 7, 8 or 10 lands may hunt for food in Saskatchewan regardless of where they ordinarily reside without complying with the provisions of the [Wildlife Act]," the decision said.
While the treaties for the territories where the men lived covered hunting for sustenance — one was from an area covered by the Albany Deed of 1701 and one was from an area covered by the Nanfan Treaty — they weren't from a numbered treaty territory protected by the NRTA. The Court of Queen's Bench said this means they were not proteted by section 12.
The decision said that because the intent of section 12 was to merge and consolidate the right to hunt found within the mentioned treaties and their territories, only treaty hunters from those territories were protected while hunting on those lands.
Discussion over meaning of 'Indian'
The judge also ruled the original meaning of "Indian" as used in section 12 of the NRTA needed to be contextualized within that specific section of that act because it is, from time to time, different from from the definition of "Indian" as found in the Indian Act.
If "Indian" were to be defined solely by the Indian Act, then the constitutional benefits of section 12 of the NRTA would be subject to changes in law, the Court of Queen's Bench judge ruled, which would go against adhering to the Canadian Constitution.
The hunters' defence counsel argued the Crown's position — which the judge ultimately sided with — could create a "subcategory of Indians," specifically "Saskatchewan Indians" and other fragmented First Nations identities across Canada.
But the Court of Queen's Bench judge disagreed and said the position "recognizes that all Indians attached to the lands of Treaties 2, 4, 5, 6, 7, 8, and 10 — and only those Indians — are able to rely on the benefit created in section 12 of the NRTA."
The judge convicted the men and said he was willing to sentence them, as the Crown had proven their guilt beyond reasonable doubt. But he refrained, as the hunters' defence hadn't prepared a sentencing submission.
The charges against them were reinstated and the matter was handed back to Provincial Court for sentencing. It was not immediately clear when that would happen.