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Her Majesty The Queen, Appellant v. John Sundown, Respondent

Country/Territory
Canada
Type of court
National - higher court
Date
Mar 25, 1999
Source
UNEP, InforMEA
Court name
Supreme Court of Canada
Judge
Lamer
LHeureux Dubé
Cory
McLachlin
Iacobucci
Bastarache
Binnie
Reference number
[1999] 1 S.C.R. 393
Language
English
Subject
Wild species & ecosystems
Keyword
Hunting authorization/permit Indigenous peoples Hunting rights
Abstract
The respondent, a member of a Cree First Nation that is a party to Treaty 6, cut down some trees in a provincial park and used them to build a log cabin. The provincial Parks Regulations prohibited the construction of a temporary or permanent dwelling on park land without permission. Pursuant to the provisions of Treaty 6, the respondent was entitled to hunt for food on land that was occupied by the provincial Crown, including the provincial park. He testified that he needed the cabin while hunting, both for shelter and as a place to smoke fish and meat and to skin pelts. Evidence was presented at trial of a long standing band practice to conduct “expeditionary” hunts in the area now included within the park. In order to carry out these hunts shelters were built at the hunting sites. In 1930, the Natural Resources Transfer Agreement between the province of Saskatchewan and the federal government modified Treaty 6 by extinguishing the treaty right to hunt commercially but expanding the geographical areas in which Indians had the treaty right to hunt for food. The respondent was convicted of building a permanent dwelling on park land without permission. The summary conviction appeal court quashed the conviction, and the Court of Appeal affirmed that decision. The Supreme Court held that the appeal should be dismissed. It was of the view that a hunting cabin was reasonably incidental to this First Nation’s right to hunt in their traditional expeditionary style. This method of hunting was not only traditional but appropriate and shelter was an important component of it. A reasonable person apprised of the traditional expeditionary method of hunting would conclude that for this First Nation the treaty right to hunt encompassed the right to build shelters as a reasonable incident to that right. The small log cabin was an appropriate shelter for expeditionary hunting in today’s society. By building a permanent structure such as a log cabin, the respondent was not asserting a proprietary interest in park land. Treaty rights, like aboriginal rights, had not to be interpreted as if they were common law property rights. Any interest in the hunting cabin was a collective right that was derived from the treaty and the traditional expeditionary method of hunting; it belonged to the band as a whole, not to the respondent or any individual band member. Under s. 88 of the Indian Act, all provincial laws of general application applied to Indians subject to “the terms of any treaty”. Since the regulations in issue would conflict with Treaty 6, which permitted the respondent to build a cabin as an activity reasonably incidental to his right to hunt, they were inapplicable to him under s. 88.
Full text
1999scc14.html

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