Sask. illegal hunting charge reinstated in Treaty rights case involving Manitoba man
Crown appealed case, arguing treaty rights did not apply as private land was in use
An illegal hunting charge for shooting a bull moose on private land against a Manitoba man with Indian status has been reinstated by a Court of Queen's Bench judge.
The case made its way to Swift Current's Queen's Bench after the Crown prosecutor appealed a Saskatchewan provincial court decision that dismissed the charge against the man due to his treaty hunting rights.
The man had shot the moose about 70 metres off of a highway, a few kilometres north of Swift Current in Treaty 4 territory on Sept. 30, 2015 — a day before hunting season was to begin and without a licence or permission to do so. The man said he was hunting for food.
R v Badger
Citing a 1996 Supreme Court of Canada decision, R v Badger, the provincial court ruling said the hunter — a status Indian whose reserve lies within Treaty 5 territory in Manitoba — was not in the wrong for hunting on private land because it did not appear to be in use nor did it have signs posted.
According to R v Badger, treaty status hunters can hunt for food on private land if it is not posted or does not appear to be cultivated.
But the Crown successfully appealed the sentence, saying case law had been misapplied.
"Saskatchewan takes the position that the lands were visibly being used for a purpose incompatible with hunting, and as such, there are no Treaty rights to hunt on these lands," said a Ministry of Justice representative.
The decision was overturned in a written decision on June 13 due to the hunter admitting the slough where he shot the moose was surrounded by a stubble field, he did not have permission to be on the land, and he knew there were farms nearby that used the land for agricultural purposes.
During the appeal, the Crown was seeking a conviction and a $2,800 fine.
Treaty hunting cases 'complex,' says lawyer
The case is "very complex" and "under-litigated," according to a law professor at the University of Saskatchewan.
Benjamin Ralston said that according to a 2007 case called R v Shipman, "treaty rights are treaty specific."
"If you're a signatory to a particular treaty, that defines the outer scope of where you can exercise those rights," he said.
There are exceptions to the rule, though.
"Someone who is First Nations might be able to shelter themselves under another First Nations treaty rights, but that would require permission and the customary practice of doing so," said Ralston.
The Supreme Court of Canada handled a 2005 case that further muddies the water, Ralston said: the Mikisew case.
In that case, the court unanimously decided the federal government should consult with the affected band when it came to using their treaty territory for a winter road, which the court found the government had not.
"[The decision] has essentially said that it's not the outer boundaries of the treaty that matter most — at least in terms of what's sometimes called a 'meaningful right' — every treaty signatory First Nation has a right to be able to exercise their treaty rights within their traditional territory," said Ralston.
As a result, a subset of any treaty would be traditional territory of any particular First Nation, Ralston said.
"It wouldn't be a question of whether you're a member of a Treaty 4 First Nation, it would be a question of what is the traditional territory of your particular First Nation within Treaty 4."
Thursday is the deadline to file an appeal. The hunter's lawyer could not be reached for comment.
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