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Wayne Clarence Badger, Appellant v. Her Majesty The Queen, Respondent and between Leroy Steven Kiyawasew, Appellant v. Her Majesty The Queen, Respondent and between Ernest Clarence Ominayak, Appellant v. Her Majesty The Queen, Respondent

Pays/Territoire
Canada
Type de cour
Nationale - cour supérieure
Date
Avr 3, 1996
Source
UNEP, InforMEA
Nom du tribunal
Supreme Court of Canada
Juge
Lamer
La Forest
LHeureux Dubé
Sopinka
Gonthier
Cory
Iacobucci
Numéro de référence
[1996] 1 S.C.R. 771
Langue
Anglais
Sujet
Espèces sauvages et écosystèmes
Mot clé
Droits de chasse Autorisation/permis de chasse Populations autochtones
Résumé
The appellants were status Indians (under Treaty No. 8) who had been hunting for food on privately owned lands falling within the tracts surrendered by the Treaty. Each was charged with an offence under the Wildlife Act. Their trials and appeals proceeded together. The appellant Badger, who was hunting on scrub land near a run down but occupied house, was charged with shooting a moose outside the permitted hunting season contrary to s. 27(1) of the Act. The appellant Kiyawasew, who had been hunting on a posted, snow covered field that had been harvested that fall, and the appellant Ominayak, who had been hunting on uncleared muskeg, both had shot moose and were charged, under s. 26(1) of the Act, with hunting without a license. All were convicted in the Provincial Court. They unsuccessfully appealed, first to the Court of Queen’s Bench and then to the Court of Appeal, challenging the constitutionality of the Act in so far as it might affect them as Crees with status under Treaty No. 8. The constitutional question raised: (1) whether status Indians under Treaty No. 8 had the right to hunt for food on privately owned land which lied within the territory surrendered under that Treaty; (2) whether or not the hunting rights set out in Treaty No. 8 had been extinguished or modified by para. 12 of the Natural Resources Transfer Agreement, 1930 (NRTA); and, (3) the extent, if any, ss. 26(1) (requiring a hunting licence) and 27(1) (establishing hunting seasons) of the Act applied to the appellants. The Supreme Court held that the appeal of Ominayak should be allowed and a new trial directed so that the issue of the justification of the infringement created by s. 26(1) of the Wildlife Act and any regulations passed pursuant to that section could be addressed. The Court noted that Treaty No. 8 guaranteed the Indians the "right to pursue their usual vocations of hunting, trapping and fishing" subject to two limitations, a geographic limitation and the right of government to make regulations for conservation purposes. The geographical limitations upon the Treaty right to hunt for food did not affect Mr. Ominayak who was hunting on land not being put to any visible use. The conservation component of the licensing scheme, constituted a prima facie infringement. Under the Treaty, no limitation as to method, timing and extent of Indian hunting could be imposed. The present licensing scheme, however, imposed conditions on the face of the license as to hunting method, the kind and numbers of game, the season and the permissible hunting area. These limitations were in direct conflict with the treaty right. Moreover, no provisions currently existed for "hunting for food" licenses. Any infringement of the rights guaranteed under the Treaty or the NRTA had to be justified. It first had to be asked if there was a valid legislative objective, and if so, the analysis proceeded to a consideration of the special trust relationship and the responsibility of the government vis-à-vis the aboriginal people. Further questions could deal with whether the infringement was as little as was necessary to effect the objective, whether compensation was fair, and whether the aboriginal group was consulted with respect to the conservation measures. The government led no evidence with respect to justification. The Court could not find justification in the absence of such evidence.
Texte intégral
1996scc34.html

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