R. v. Horse, 1988 CanLII 91 (SCC), [1988] 1 SCR 187

r. v. horse, [1988] 1 S.C.R. 187

Ernest Horse, Clement Horse, Phillip Horse, Peter Horse, James Standingwater, Kenneth Standingwater, Clarence Fiddler and Percy Alexander Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. horse

File No.: 19164.

1987: October 19; 1988: January 28.

Present: Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for saskatchewan

Indians ‑‑ Hunting rights ‑‑ Right of access to private lands for hunting purposes ‑‑ Lands in question unposted ‑‑ Whether or not a right of access derived from The Wildlife Act ‑‑ Whether or not a right of access derived from custom ‑‑ Whether or not a right of access derived from Treaty No. 6 ‑‑ Natural Resources Transfer Agreement, S.S. 1930, c. 87, ss. 2, 12 ‑‑ The Wildlife Act, S.S. 1979, c. W‑13.1, s. 38 ‑‑ The Wildlife Amendment Act, 1982, S.S. 1982‑83, c. 20, s. 7 ‑‑ Treaty No. 6.

Appellants were charged with an offence under the Saskatchewan Wildlife Act, namely using a spotlight for hunting wildlife. They are all Treaty Indians and were all hunting for food. The land upon which the hunting took place was privately owned. Appellants did not have permission or authority to hunt from the owners or occupants of the lands in question. The lands, which had not been posted with respect to hunting or trespassing, were sown to hay and grain.

Each of the appellants was convicted at Provincial Court. The Court of Queen's Bench, on appeal, set aside the convictions but the Court of Appeal, on appeal by the Crown, restored them.

At issue here is whether or not a right of access to the lands in question for the purpose of hunting arose from The Wildlife Act, from Treaty No. 6 or from custom and usage, thereby creating an immunity from prosecution by means of the Saskatchewan Natural Resources Transfer Agreement. Paragraph 12 of the Agreement provided, "that . . . Indians shall have the right . . . of hunting . . . 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." Reliance was also placed on the Indian Act and Constitution Act, 1982, s. 35(1).

Held: The appeal should be dismissed.

Generally, paragraph 12 of the Saskatchewan Natural Resources Transfer Agreement must be given a broad and liberal construction with any ambiguity in the phrase "right of access" being resolved in favour of the Indians.

Section 38 of The Wildlife Act does not create a statutory right of access to private lands for the purpose of hunting. Hunters enter private property with no greater rights than other trespassers; they have no right of access except with the owner's permission, and, lacking permission, are subject to civil action for tres‑ pass. The Wildlife Act does not create a limited right to hunt within the meaning of R. v. Sutherland, 1980 CanLII 18 (SCC), [1980] 2 S.C.R. 451, and Moosehunter v. The Queen, 1981 CanLII 13 (SCC), [1981] 1 S.C.R. 282. It is a long jump to move from the concept of "a limited right to hunt" to unlimited hunting by Indians on private land by reason of the right of the owner of the private land in general law to grant or withhold access to anybody for any purpose. The mere capacity in the owner to grant right of access for hunting to friends or licensees or invitees is not a limited right of hunting in the sense that Indians therefore, without consent, can proceed upon the land for the purpose of hunting.

No evidence or material adduced demonstrated the existence of any such right by custom or usage arising in the appellants, assuming, only for the purpose of examining the rights of the appellants, that Indians and/or others may by custom or usage acquire a right of access to lands for hunting. The terms of the treaty are clear and unambiguous: the right to hunt preserved in Treaty No. 6 does not extend to land occupied by private owners. Passages from the negotiations, viewed in the context of the various treaties, made it clear that while the Indians were entitled to continue their mode of life by hunting, the preservation of that right did not include the grant of access to lands privately owned and occupied by settlers. Settlement of these lands was the goal of the government along with the intention of including, where possible, the nomadic Indian population, at least to the extent that some of them would turn to agriculture with government assistance as their principal source of sustenance and survival. The extraneous material which properly should be examined when ambiguity in the Treaty is encountered, in any case supports and does not contradict the unambiguous terms of the Treaty.

Cases Cited

Applied: Myran v. The Queen, 1975 CanLII 157 (SCC), [1976] 2 S.C.R. 137; McKinney v. The Queen, 1980 CanLII 164 (SCC), [1980] 1 S.C.R. 401; considered: R. v. Sutherland, 1980 CanLII 18 (SCC), [1980] 2 S.C.R. 451; R. v. Little Bear (1958), 1958 CanLII 819 (AB SCTD), 25 W.W.R. 580 (Alta. Dist. Ct.), aff'd (1958), 1958 CanLII 606 (AB SCAD), 26 W.W.R. 335 (Alta. App. Div.); distinguished: R. v. Tobacco, 1980 CanLII 2132 (SK CA), [1981] 1 W.W.R. 545; Moosehunter v. The Queen, 1981 CanLII 13 (SCC), [1981] 1 S.C.R. 282; referred to: Daniels v. White and The Queen, 1968 CanLII 67 (SCC), [1968] S.C.R. 517; R. v. Wesley, 1932 CanLII 623 (AB SCAD), [1932] 2 W.W.R. 337; R. v. Mousseau, 1980 CanLII 194 (SCC), [1980] 2 S.C.R. 89; Prince and Myron v. The Queen, 1963 CanLII 91 (SCC), [1964] S.C.R. 81; R. v. Prince (1962), 1962 CanLII 955 (MB CA), 40 W.W.R. 234; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387; Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29; Jones v. Meehan, 175 U.S. 1 (1899); Dick v. The Queen, 1985 CanLII 80 (SCC), [1985] 2 S.C.R. 309; Kruger v. The Queen, 1977 CanLII 3 (SCC), [1978] 1 S.C.R. 104.

Statutes and Regulations Cited

Constitution Act, 1930, 20 & 21 Geo. 5, c. 26 (U.K.) [reprinted in R.S.C. 1970, App. II, No. 25].

Constitution Act, 1982, s. 35(1).

Indian Act, R.S.C. 1970, c. I‑6, s. 88.

Natural Resources Transfer Agreement, S.S. 1930, c. 87 [confirmed by the Constitution Act, 1930], ss. 2, 12.

Treaty No. 6 (1876).

Wildlife Act, S.S. 1979, c. W‑13.1, ss. 37, 38(1), (2), (6) [rep. & subs. 1982‑83, c. 20, s. 7].

Wildlife Amendment Act, 1982, S.S. 1982‑83, c. 20, s. 7.

Authors Cited

Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.

Halsbury's Laws of England, vol. 18, 4th ed. London: Butterworths, 1977.

Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North‑West Territories. Toronto: Belfords, Clarke & Co., 1880.

APPEAL from judgments of the Saskatchewan Court of Appeal (R. v. Horse (1984), 1984 CanLII 2543 (SK CA), 34 Sask. R. 58, [1985] 1 W.W.R. 1, 14 C.C.C. (3d) 555, [1984] 4 C.N.L.R. 99; R. v. Standingwater (1984), 1984 CanLII 2561 (SK CA), 34 Sask. R. 64), allowing the Crown's appeals from a judgment of Dielschneider J. (R. v. Horse (1984), 1984 CanLII 2296 (SK QB), 31 Sask. R. 222, [1984] 3 W.W.R. 377, [1984] 2 C.N.L.R. 135), which allowed the appeals of the accused from their convictions for an offence contrary to s. 37 of the Saskatchewan Wildlife Act (R. v. Horse, [1983] 3 C.N.L.R. 121; R. v. Standingwater, [1983] 3 C.N.L.R. 156). Appeal dismissed.

J. Ron Cherkewich and Charles Seto, for the appellants.

Kenneth W. MacKay, Q.C., for the respondent.

The judgment of the Court was delivered by

1. Estey J.‑‑

Facts

2. Each of the appellants was charged with an offence under s. 37 of the Saskatchewan Wildlife Act, S.S. 1979, c. W‑13.1, which prohibits the use of a spotlight for the purpose of hunting any wildlife. The facts surrounding the charges are not in dispute and may be briefly stated. Each of the appellants was hunting at night using spotlights in September, October and November 1982. They are all Treaty Indians and were all hunting for food. The land upon which the hunting took place was privately owned. None of the appellants had permission or authority to hunt from the owners or occupants of the lands in question. None of the lands involved displayed any signs at all and in particular none with respect to hunting or trespassing. The lands were farm lands sown to hay and grain. Regarding the appellants James and Kenneth Standingwater, the facts vary only in that the landowner in question was aware that from time to time his property was being used for hunting.

3. Each of the appellants was convicted at Provincial Court by Seniuk Prov. Ct. J.: [1983] 3 C.N.L.R. 121 and 156. An appeal to the Saskatchewan Queen's Bench was allowed and the convictions were set aside by Dielschneider J.: (1984), 1984 CanLII 2296 (SK QB), 31 Sask. R. 222, [1984] 3 W.W.R. 377, [1984] 2 C.N.L.R. 135. The Crown appealed this judgment and the Saskatchewan Court of Appeal restored the convictions: (1984), 1984 CanLII 2543 (SK CA), 34 Sask. R. 58 and 64, [1985] 1 W.W.R. 1, 14 C.C.C. (3d) 555, [1984] 4 C.N.L.R. 99.

4. To succeed the appellants must demonstrate a right in law to hunt on these privately owned lands and to do so notwithstanding the regulation of hunting under the provincial statute.

5. The right of access to the land in issue for the purpose of hunting is alleged to derive from The Wildlife Act itself; or from the provisions of Treaty No. 6; or from custom and usage. If such a right exists in law then the appellants claim immunity from prosecution by means of the provisions of the Natural Resources Transfer Agreement, S.S. 1930, c. 87 (confirmed by the Constitution Act, 1930, 20 & 21 Geo. 5, c. 26 (U.K.) (reprinted in R.S.C. 1970, App. II, No. 25)), or under the Indian Act, R.S.C. 1970, c. I‑6, s. 88. They also rely on s. 35(1) of the Constitution Act, 1982.

6. In my view, the appellants were properly convicted under s. 37 of The Wildlife Act and the appeal must be dismissed.

1. The Natural Resources Transfer Agreement

7. In 1929 and 1930 agreements were entered into between each of the provinces of Alberta, Manitoba and Saskatchewan and the Canadian government for the primary purpose of effecting a transfer of control of natural resources and Crown lands from the Dominion government to the prairie provinces. They were confirmed by legislation enacted in each of the provinces, and by the Parliament of Canada. The United Kingdom Parliament, by enacting the Constitution Act, 1930, gave these agreements the force of law.

8. Paragraph 12 of the Saskatchewan Agreement, with which we are here concerned, provides:

9. 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. [Emphasis added.]

This appeal concerns the category "other lands" which on the facts here, means privately owned lands.

9. As this Court noted in Myran v. The Queen, 1975 CanLII 157 (SCC), [1976] 2 S.C.R. 137, the historical context of protection of Indian hunting rights in these agreements had already been discussed by Judson J. in Daniels v. White and The Queen, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, and in the judgment of McGillivray J.A. in the Appellate Division of the Supreme Court of Alberta in R. v. Wesley, 1932 CanLII 623 (AB SCAD), [1932] 2 W.W.R. 337. It need not be repeated here.

10. I approach this matter bearing in mind the principles of interpretation articulated by this Court in R. v. Sutherland, 1980 CanLII 18 (SCC), [1980] 2 S.C.R. 451, where the Court dealt with the analogous provision in paragraph 13 of the Manitoba Natural Resources Transfer Agreement. Generally, the paragraph must be given a broad and liberal construction with any ambiguity in the phrase "right of access" being resolved in favour of the Indians. (See pp. 461, 464‑65.)

11. The Court again, in R. v. Mousseau, 1980 CanLII 194 (SCC), [1980] 2 S.C.R. 89, stated with reference to the Manitoba Agreement, paragraph 13, through Dickson J. (as he then was), at p. 97:

Where a right of access to hunt is recognized in respect of any lands, that right is general for Indians and cannot be restricted by provincial legislation imposing seasonal restrictions, bag limits, licensing requirements, or other such considerations: the important criterion is hunting for food. [Emphasis added.]

12. This brings us to an examination of the basis in law on which the appellants can assert a right of access to these private lands. The appellants claim to have acquired the prerequisite right of access under paragraph 12 in two ways. First, a right of access to private lands is given in The Wildlife Act. Second, a right of access arose by custom and usage. Independent of this paragraph 12 argument, or alternatively, in conjunction therewith, the appellants claim a right of access under the terms of Treaty No. 6. This claim will be examined separately.

(a) Statutory Rights

13. The appellants claim that s. 38 of The Wildlife Act creates a statutory right of access to private lands. They also contend that the Act contemplates that private lands will be used for hunting by reason of the fact that reference is made to an owner giving consent to hunting on his or her land. Section 38 provides in part:

14. (1) Where there are legible signs, of a size specified in the regulations, prominently placed along the boundaries of any land so as to provide reasonable notice bearing the words "No Trespassing", "No Hunting", "No Shooting" or words or symbols to a like effect, no person shall hunt any wildlife within the boundaries of such land except with the consent of the owner or occupant.

(2) Subject to this Act and the regulations, where there are legible signs of the size specified in the regulations prominently placed along the boundaries of any land so as to provide reasonable notice of instructions concerning the method of hunting or the use of vehicles connected with hunting, no person shall hunt any wildlife on such land except in accordance with the posted instructions.

(6) Nothing in this section limits or affects any rights or remedies of an owner or occupier of land for trespass at common law, and, where he has not erected or placed signs along the boundaries of his land in accordance with subsection (1) or (2), that fact alone is not to be deemed to imply consent by him to entry upon his land or to imply a right of access to his land for the purpose of hunting.

These provincial provisions came before the courts in Prince and Myron v. The Queen, 1963 CanLII 91 (SCC), [1964] S.C.R. 81, with reference to similar legislation in the province of Manitoba. The Manitoba legislation prescribed a notice procedure whereby land could be protected from hunting. The notice requirement stemmed from the following provision in the Manitoba legislation:

76. (1) No person shall hunt any bird or any animal mentioned in this Part if it is upon or over any land with regard to which notice has been given under this Part, without having obtained the consent of the owner or lawful occupant thereof.

From this provision the Manitoba Court of Appeal concluded that in the absence of signs posted as prescribed, Indians had a right of access to occupied private land for the purpose of hunting. (See R. v. Prince (1962), 1962 CanLII 955 (MB CA), 40 W.W.R. 234.)

14. This Court in Myran v. The Queen, supra, and later in McKinney v. The Queen, 1980 CanLII 164 (SCC), [1980] 1 S.C.R. 401, took occasion to `reverse' the Manitoba court's conclusion in Prince, supra, with reference to right of access to private lands. In commenting upon the earlier Manitoba Court of Appeal decision in Prince, supra, Dickson J. (as he then was) in Myran, supra, stated (at p. 145):

I would have grave doubt that this can be the law. Section 40 of The Wildlife Act [of Manitoba] does not deal with interests in property. It is intended, I would have thought, to create a separate offence under the provincial statute in respect of posted lands and not to confer entry rights in respect of unposted lands.... With great respect, in my opinion the majority of the Manitoba Court of Appeal in Prince and Myron v. The Queen may have erred in their view of the import of s. 76 of The Game and Fisheries Act, the antecedent of s. 40, in failing to appreciate the importance of s. 76(4) reading:

76. (4) Nothing in this section limits or affects the remedy at common law of any such owner or occupant for trespass.

77. Dickson J., in dealing with substantially the same legislation as that now before the Court in this appeal, then concluded (at p. 146):

... that in Manitoba at the present time hunters enter private property with no greater rights than other tres‑ passers; that they have no right of access except with the owner's permission; and, lacking permission, are subject to civil action for trespass and prosecution ....

It is noted that the foregoing extracts from the Myran judgment, supra, were not necessary in resolving the issues arising in that appeal. These comments came before this Court in McKinney v. The Queen, supra, where Laskin C.J. stated (at p. 401):

We adopt as a correct statement of the law what was said obiter by Dickson J. in Myran, Meeches et al. v. The Queen, 1975 CanLII 157 (SCC), [1976] 2 S.C.R. 137, at p. 145. We agree with the Manitoba Court of Appeal that R. v. Prince (1962), 1962 CanLII 955 (MB CA), 40 W.W.R. 234 was wrongly decided.

16. The opposite result to that reached in this Court in the combination of Myran and McKinney, supra, was reached by the Saskatchewan Court of Appeal in R. v. Tobacco, 1980 CanLII 2132 (SK CA), [1981] 1 W.W.R. 545. That case, however, was predicated upon the then Saskatchewan Wildlife Act which did not include the above‑mentioned provision in the Manitoba Wildlife Act dealing with the rights of an owner at common law or by statute for trespass in respect of his land. As can be seen from the excerpts from the present Saskatchewan statute, supra, subs. (6) of s. 38 contains a provision preserving the rights of an owner or occupant at common law for tres‑ pass and accordingly the Tobacco case is of no application here.

17. Additionally, the appellants seek to establish a statutory right of access by reason of The Wildlife Act as the result of judicial decisions in this Court in R. v. Sutherland, supra, and Moosehunter v. The Queen, 1981 CanLII 13 (SCC), [1981] 1 S.C.R. 282. In Sutherland the right to hunt accorded to the public generally by the province was limited to enumerated animals. The Court concluded that once any hunting was allowed to the general public, Indians under paragraph 13 of the Manitoba Agreement enjoyed unlimited hunting rights. Moosehunter, supra, was to the same effect. It should be noted that in those two cases the Court was not dealing with privately owned land but with Crown lands in respect of which the Crown in the right of the province had granted to all persons a limited right to hunt. In Sutherland, supra, the Court stated through Dickson J. (as he then was), at p. 459:

It is arguable that where the Crown has validly occupied lands, there is prima facie no right of access, as is the case with land occupied by private owners, save and except that right of access the Crown confers on the public and/or Indians, as occupant of the land. In the Management Area the Crown has granted public access to hunt, but on certain terms. The Province cannot deny access to Indians while granting it to the public, but the Province can deny access for purposes of hunting which binds Indians and non‑Indians alike.

18. It is a long jump to move from the concept of "a limited right to hunt" to unlimited hunting by Indians on private land by reason of the right of the owner of the private land in general law to grant or withhold access to anybody for any purpose. The mere capacity in the owner to grant right of access for hunting to friends or licensees or invitees is not a limited right of hunting in the sense that Indians therefore, without consent, can proceed upon the land for the purpose of hunting.

19. The appellants have not, by either submission or approach, succeeded in establishing that The Wildlife Act accords to them a statutory right of access for the purpose of hunting on private lands.

(b) Custom or Usage

20. Admitting, only for the purpose of examining the rights of the appellants, that Indians and/or others may by custom or usage acquire a right of access to lands for hunting, there is no evidence or material adduced in these proceedings which demonstrate the existence of any such right by custom or usage arising in the appellants. In my view this renders this appeal a wholly unsatisfactory basis upon which to determine the argument of access based on custom. I agree with the view expressed by Vancise J.A. in the Saskatchewan Court of Appeal below where he stated:

In this case the respondent sought to argue issues such as, custom and usage, implied consent, right of access to surrendered lands under the treaties and access for the purpose of pursuing the avocation of hunting and fishing on which there was no evidence before the court. If the parties wish to argue these matters on an agreed statement of facts the statement should contain sufficient factual information and underpinning to allow a full and complete arguing of the issues and evidence should be called to establish factual underpinning.

21. In view of the total absence of the necessary evidence it cannot be determined whether the appellants have a right of access based on custom or usage.

2. Treaty No. 6

22. The appellants argue that the terms of the treaty give them a right to hunt for food on private land. If such a right exists under the treaty then they contend that it is protected by both paragraphs 2 and 12 of the Natural Resources Transfer Agreement. Paragraph 2 reads:

23. The Province will carry out in accordance with the terms thereof every contract to purchase or lease any Crown lands, mines or minerals and every other arrangement whereby any person has become entitled to any interest therein as against the Crown, and further agrees not to affect or alter any term of any such contract to purchase, lease or other arrangement by legislation or otherwise, except either with the consent of all the parties thereto other than Canada or in so far as any legislation may apply generally to all similar agreements relating to lands, mines or minerals in the Province or to interests therein, irrespective of who may be the parties thereto.

24. They also invoke s. 35(1) of the Constitution Act, 1982 which provides:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

24. Finally, s. 88 of the Indian Act is invoked to protect treaty rights from the application of The Wildlife Act. It states:

25. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by‑law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

26. In my view it is not necessary to determine the application of these various provisions because Treaty No. 6 affords no right of access to occupied private lands.

27. The ultimate objective of this treaty was for the Government to obtain ownership of the lands it covered and to open the surrendered lands to settlement. The preamble of the treaty clearly illustrates this point:

And whereas the said Indians have been notified and informed by Her Majesty's said Commissioners that it is the desire of Her Majesty to open up for settlement, immigration and such other purposes as to Her Majesty may seem meet, a tract of country, bounded and described as hereinafter mentioned, and to obtain the consent thereto of her Indian subjects inhabiting the said tract, and to make a treaty ....

27. In exchange for the surrendered lands the Government promised to assist the Indians in acquiring skills necessary for agriculture. In this respect the following terms of the treaty state:

And whereas the said Commissioners have proceeded to negotiate a treaty with the said Indians, and the same has been finally agreed upon and concluded as follows, that is to say:

The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada for Her Majesty the Queen and her successors forever, all their rights, titles and privileges whatsoever, to the lands included within the following limits, that is to say:...

To have and to hold the same to Her Majesty the Queen and her successors forever;

And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and other reserves for the benefit of the said Indians ....

That with regard to the Indians included under the Chiefs adhering to the treaty at Fort Pitt, and to those under Chiefs within the treaty limits who may hereafter give their adhesion hereto (exclusively, however, of the Indians of the Carlton Region) there shall, during three years, after two or more reserves shall have been agreed upon and surveyed, be distributed each spring among the bands cultivating the soil on such reserves, by Her Majesty's Chief Indian Agent for this treaty in his discretion, a sum not exceeding one thousand dollars, in the purchase of provisions for the use of such members of the band as are actually settled on the reserves and engaged in the cultivation of the soil, to assist and encourage them in such cultivation;

They promise and engage that they will in all respects obey and abide by the law, and they will maintain peace and good order between each other, and also between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any part of the said ceded tracts, and that they will not molest the person or property of any inhabitant of such ceded tracts, or the property of Her Majesty the Queen ....

28. The operative provision of Treaty No. 6 is as follows:

Her Majesty further agrees with her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by her Government of her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by her said Government of the Dominion of Canada, or by any of the subjects thereof, duly authorized therefor, by the said Government; [Emphasis added.]

29. The comparable provision in Treaty No. 7 was considered in R. v. Little Bear (1958), 1958 CanLII 819 (AB SCTD), 25 W.W.R. 580 (Alta. Dist. Ct.) (aff'd (1958), 1958 CanLII 606 (AB SCAD), 26 W.W.R. 335 (Alta. App. Div.)) On the facts in that case the accused Indian had consent from the private owner of the lands to hunt and thus he came under the protection of paragraph 12 in the Alberta Natural Resources Transfer Agreement.

30. The trial judge in Little Bear, supra, also considered whether Treaty No. 7 gave the accused a right of access to privately owned land. The judge considered the hunting rights proviso in the treaty which is in all material respects the same as the clause at issue here in Treaty No. 6, supra. At page 583 this ground of argument is rejected by Turcotte Dist. Ct. J.:

It is clear that, without more, the treaty of 1877 did not give Little Bear the right to kill a deer on the Wellman land, because the Wellman land "had been taken up for settlement by one of Her Majesty's subjects duly authorized thereof by the said Government."

It is evident that the clause relating to hunting rights in Treaty No. 6 should be given the same interpretation as the Court in Little Bear, supra, gave to the comparable clause in Treaty No. 7.

31. The appellants however advance the view that Indians were by the treaty entitled to hunt over land taken up for settlement under a joint use concept. That is upon the settlement of these lands, the Indian right to hunt was not extinguished but rather the lands came to be used jointly by the Indian and the settler.

32. In support of this conclusion the appellants seek to introduce the transcript of the negotiations surrounding Treaty No. 6 between the Indians and the Queen's Representatives. These negotiations are described in a text written by the Hon. Alexander Morris, P.C. (late Lieutenant Governor of Manitoba) entitled: The Treaties of Canada with the Indians of Manitoba and the North‑West Territories (1880). Morris acted as a Queen's Representative in the formation of many of the Indian treaties in western Canada.

33. With respect to Treaty No. 6 the appellants draw the Court's attention to passages taken from the record of the dialogue between the Indians and the Commissioners. It is submitted that the negotiations support a conclusion that Treaty No. 6 was intended to guarantee to the Indians a right of access to occupied private land surrendered under the treaty. The right is to "joint use", as the appellants put it, of the lands taken up by settlement. The Indians, it is asserted, were free to hunt over such land subject to the interests of the property holder in his or her land and with regard to the safety of others.

34. The following passage from the Morris text is relied on by the appellants in support of this argument:

[Chief Tee‑Tee‑Quay‑Say said at p. 215:] We want to be at liberty to hunt on any place as usual.

[Lieutenant Governor Morris replied at p. 218:] You want to be at liberty to hunt as before. I told you we did not want to take that means of living from you, you have it the same as before, only this, if a man, whether Indian or Half‑breed, had a good field of grain, you would not destroy it with your hunt.

35. I have some reservations about the use of this material as an aid to interpreting the terms of Treaty No. 6. In my view the terms are not ambiguous. The normal rule with respect to interpretation of contractual documents is that extrinsic evidence is not to be used in the absence of ambiguity; nor can it be invoked where the result would be to alter the terms of a document by adding to or subtracting from the written agreement. This rule is described in Cross on Evidence (6th ed. 1985), at pp. 615‑16:

Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to, varying or contradicting the terms of a judicial record, a transaction required by law to be in writing, or a document constituting a valid and effective contract or other transaction. Most judicial statements of the rule are concerned with its application to contracts, and one of the best known is that of Lord Morris who regarded it as indisputable that:

Parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract or the terms in which the parties have deliberately agreed to record any part of their contract. [Bank of Australasia v. Palmer, [1897] A.C. 540, at p. 545]

36. The parol evidence rule has its analogy in the approaches to the construction of Indian treaties. This Court in Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, was concerned with the proper interpretation of an Indian treaty by the courts. Dickson C.J. stated at p. 404: "An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law". An early judgment in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, referred more broadly to the rules of interpretation properly applicable in a court of law to an Indian treaty. Dickson J. (as he then was) there stated, at p. 36: "... treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians".

37. The application of the general doctrine enunciated in the parol evidence rule to treaties is discussed in Halsbury's Laws of England (4th ed. 1977), vol. 18, para. 1792, at pp. 928 et seq. "A treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". With respect to supplementary means of interpretation, it is stated at para. 1793 that:

In interpreting a treaty recourse may be had to supplementary means, including the preparatory work ... of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of the general rule or to determine the meaning when the application of that rule either leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. [Emphasis added.]

All this should be read in the awareness that the learned authors appear to be discussing conventional international treaties and not the treaties so common in North America between the government of the country and the tribes and other groupings of aboriginal peoples. The United States Supreme Court, in Jones v. Meehan, 175 U.S. 1 (1899), determined in connection with the application of Indian treaties that they "must ... be construed, not according to the technical meaning of [their] words ... but in the sense in which they would naturally be understood by the Indians" (p. 11).

38. In my opinion there is no ambiguity which would bring in extraneous interpretative material. Nevertheless I am prepared to consider the Morris text, proffered by the appellants, as a useful guide to the interpretation of Treaty No. 6. At the very least, the text as a whole enables one to view the treaty at issue here in its overall historical context. The following is a brief summary of passages from this text respecting the scope of the guarantee of Indian hunting rights. As shall be seen this text, rather than supporting the reading of the Treaty advanced by the appellants, reinforces the conclusion that the argument of the appellants for joint use of lands taken up by settlement must be rejected.

39. In the period of 1871‑1877 seven treaties were entered into by the Dominion Government with the Indians inhabiting the northwestern part of Canada. Generally, the Indians ceded land to the Government of Canada which in return undertook to set aside particular areas known as Indian reserves and to grant annuities and various supplies to the Indians. In all but the first two treaties there is a clause similar to that cited above respecting hunting rights. From the record of the negotiations included in the Morris text (see excerpts below) one can see that any guarantee of such hunting rights was not intended nor understood to extend to land occupied by settlers.

40. The then Lieutenant Governor of Manitoba and the Northwest Territories, A. G. Archibald, was one of the Commissioners involved in the formation of the first two treaties. In his opening address to the Indians at Stone Fort, where Treaty No. 1 was signed, Archibald made the following statement which clearly shows that the Indians were not being given a right to hunt over occupied private lands (at p. 29):

When you have made your treaty you will still be free to hunt over much of the land included in the treaty. Much of it is rocky and unfit for cultivation, much of it that is wooded is beyond the places where the white man will require to go, at all events for some time to come. Till these lands are needed for use you will be free to hunt over them, and make all the use of them which you have made in the past. But when lands are needed to be tilled or occupied, you must not go on them any more. There will still be plenty of land that is neither tilled nor occupied where you can go and roam and hunt as you have always done, and, if you wish to farm, you will go to your own reserve where you will find a place ready for you to live on and cultivate.

41. The third treaty was made at the "North‑West Angle". In Morris' words it was "...of great importance..." partly because "...[it] eventually shaped the terms of all the treaties, four, five, six and seven, which have since been made with the Indians of the North‑West Territories..." (p. 45). It contains a clause similar to that in Treaty No. 6 regarding hunting rights. Lieutenant Governor Morris gave the following explanation of the terms of the treaty in negotiations preceding the adoption of Treaty No. 3 by the Indians and the Government representatives (at p. 58):

I will give you lands for farms, and also reserves for your own use. I have authority to make reserves such as I have described, not exceeding in all a square mile for every family of five or thereabouts. It may be a long time before the other lands are wanted, and in the meantime you will be permitted to fish and hunt over them. I will also establish schools whenever any band asks for them, so that your children may have the learning of the white man. I will also give you a sum of money for yourselves and every one of your wives and children for this year. I will give you ten dollars per head of the population, and for every other year five dollars a‑head. But to the chief men, not exceeding two to each band, we will give twenty dollars a‑year for ever. I will give to each of you this year a present of goods and provisions to take you home, and I am sure you will be satisfied. [Emphasis added.]

42. Treaty No. 4, the Qu'Appelle Treaty, contains terms similar to Treaty No. 3 in response to a request by the Indians and acceded to by the Commissioners (p. 79). In the negotiations preceding the signing of this Treaty, Morris made the following statement to the Indians (at p. 96):

We have come through the country for many days and we have seen hills and but little wood and in many places little water, and it may be a long time before there are many white men settled upon this land, and you will have the right of hunting and fishing just as you have now until the land is actually taken up. (His Honor repeated the offers which had been given to the Saulteaux on the previous day.) I think I have told you all that the Queen is willing to do for you.

43. The Winnipeg Treaty was the fifth one signed and Morris states at p. 145 that other than alterations in the amount of the gratuity and the quantity of land set aside for reserves, "[t]he terms of the treaty were identical with those of Treaties Numbers Three and Four...." It would appear therefore that a standard hunting rights clause had been developed and was intended and understood by Morris at least to accord the same general rights in all the later treaties.

44. Turning to Treaty No. 6 (the Treaty here at issue), signed in 1876 at Forts Carlton and Pitt (in present‑day Saskatchewan), Lord Morris states that except with respect to the addition of a new annuity and a clause respecting famine, "[t]he other terms were analogous to those of the previous treaties". He notes further that: "The treaty was interpreted to them [the Cree Indians] carefully, and was then signed, and the payment made in accordance therewith" (p. 178).

45. The summary of the negotiations surrounding the signing of this treaty supports the conclusion that the main purpose behind the treaty was for the Federal Government to obtain ownership of the lands covered by the treaty in return for annuities and the establishment of reservations. The concept behind the reservations was that the Indians were to be given the opportunity to learn agricultural skills and in order to cultivate the land and facilitate their continued survival. At the time of the signing of this treaty, according to Morris the Indians had lost many of their number due to sickness and starvation and were dependent on the buffalo which were becoming increasingly scarce. The following excerpts from the record of events made by Morris himself in a letter to the Federal Government support this conclusion (at pp. 184‑86):

I then fully explained to them the proposals I had to make, that we did not wish to interfere with their present mode of living, but would assign them reserves and assist them as was being done elsewhere, in commencing to farm, and that what was done would hold good for those that were away.

At length the Indians informed me that they did not wish to be fed every day, but to be helped when they commenced to settle, because of their ignorance how to commence, and also in case of general famine ....

They saw the buffalo, the only means of their support, passing away. They were anxious to learn to support themselves by agriculture, but felt too ignorant to do so, and they dreaded that during the transition period they would be swept off by disease or famine ‑‑ already they have suffered terribly from the ravages of measles, scarlet fever and small‑pox.

It was impossible to listen to them without interest, they were not exacting, but they were very apprehensive of their future, and thankful, as one of them put it, "a new life was dawning upon them."

On the 23rd [August] the conference was resumed, an Indian addressed the people, telling them to listen and the interpreter, Peter Erasmus, would read what changes they desired in the terms of our offer. They asked for an ox and a cow each family; an increase in the agricultural implements; provisions for the poor, unfortunate, blind and lame; to be provided with missionaries and school teachers; the exclusion of fire water in the whole Saskatchewan; a further increase in agricultural implements as the band advanced in civilization; freedom to cut timber on Crown lands; liberty to change the site of the reserves before the survey; free passages over Government bridges or scows; other animals, a horse, harness and waggon, and cooking stove for each chief; a free supply of medicines; a hand mill to each band; and lastly, that in case of war they should not be liable to serve.

Two spokesmen then addressed us in support of these modifications of the terms of the Treaty.

After an interval we again met them, and I replied, going over their demands and reiterating my statements as to our inability to grant food, and again explaining that only in a national famine did the Crown ever intervene, and agreeing to make some additions to the number of cattle and implements, as we felt it would be desirable to encourage their desire to settle.

I closed by stating that, after they settled on the reserves, we would give them provisions to aid them while cultivating, to the extent of one thousand dollars per annum, but for three years only, as after that time they should be able to support themselves.

46. In his commentary on a meeting with a different band of Indians who were gathered at Fort Pitt, Morris wrote (at p. 190):

After the conclusion of these proceedings I addressed them, telling them we had come at their own request, and that there was now a trail leading from Lake Superior to Red River, that I saw it stretching on thence to Fort Ellice, and there branching off, the one track going to Qu'Appelle and Cyprus Hills, and the other by Fort Pelly to Carlton, and thence I expected to see it extended, by way of Fort Pitt to the Rocky Mountains; on that road I saw all the Chippewas and Crees walking, and I saw along it gardens being planted and houses built.

I invited them to join their brother Indians and walk with the white men on this road. I told them what we had done at Carlton, and offered them the same terms, which I would explain fully if they wished it.

On closing Sweet Grass rose, and taking me by the hand, asked me to explain the terms of the treaty, after which they would all shake hands with me and then go to meet in council.

I complied with this request, and stated the terms fully to them, both addresses having occupied me for three hours. On concluding they expressed satisfaction, and retired to their council.

47. Nowhere in Morris' dispatch or in the records of negotiations are there statements made by the Indians expressly requesting the right to hunt on occupied lands. The statement made by Lieutenant Governor Morris at p. 218 cited above does not, in my opinion, establish this right. In the context of the terms of the treaty, which were explained to the Indians carefully and assented to by them, it is clear that the right to hunt was not extended to land that became occupied by settlers. The statement, even when taken alone, can be read in a manner consistent with the written provision and it does not contradict the written expression of the preservation of hunting rights in the manner outlined therein. When the negotiations and the terms of Treaty No. 6 are read in light of the entire historical context of the other treaties this view is inescapable.

48. I turn now to Treaty No. 7 which was signed in the following year and contains a similar hunting rights proviso. The treaty was negotiated for the Government of Canada by Lieutenant Governor Laird (and others) who, in a letter to the Government of Canada describing the negotiations leading up to this treaty with the Blackfeet Indians, wrote (at p. 257):

On Tuesday we met the Indians at the usual hour. We further explained the terms outlined to them yesterday, dwelling especially upon the fact that by the Canadian Law their reserves could not be taken from them, occupied or sold, without their consent. They were also assured that their liberty of hunting over the open prairie would not be interfered with, so long as they did not molest settlers and others in the country.

Morris also included a report of the speeches of the Commissioners and the Indians which appeared in the Toronto Globe, beginning October 4, 1877, with respect to which Morris wrote "... though not authentic, I believe, gives a general view of what passed during the negotiations." (p. 250). There are two statements made by Lieutenant Governor Laird, as quoted by the Globe reporter, which are relevant. Laird is quoted by the Globe as telling the Indian Chiefs "...it is your privilege to hunt all over the prairies...", and shortly thereafter, "[t]he reserve will be given to you without depriving you of the privilege to hunt over the plains until the land be taken up." (See pp. 269‑70 and 272.)

49. In the final chapter of his text Morris summarizes the general result of the various treaties. This summary includes (at pp. 285‑86):

50. A relinquishment, in all the great region from Lake Superior to the foot of the Rocky Mountains, of all their right and title to the lands covered by the treaties, saving certain reservations for their own use, and

51. In return for such relinquishment, permission to the Indians to hunt over the ceded territory and to fish in the waters thereof, excepting such portions of the territory as pass from the Crown into the occupation of individuals or otherwise.

52. In summary then the terms of the treaty are clear and unambiguous: the right to hunt preserved in Treaty No. 6 did not extend to land occupied by private owners. When the passages from the negotiations sought to be introduced by the appellants are viewed in the context of the various treaties covered in the Morris text it becomes clear that while the Indians were entitled to continue their mode of life by hunting, the preservation of that right did not include the grant of access to lands privately owned and occupied by settlers. Settlement of these lands was the goal of the government along with the intention of including, where possible, the nomadic Indian population at least to the extent that some of them would turn to agriculture with government assistance as their principal source of sustenance and survival. The extraneous material which properly should be examined when ambiguity in the Treaty is encountered, in any case supports and does not contradict the unambiguous terms of the Treaty.

Conclusion

51. I would note in closing that the appellants, in their factum, presented an argument that s. 38(6) of The Wildlife Act, as amended by The Wildlife Amendment Act, 1982, S.S. 1982‑83, c. 20, s. 7, is inoperative by virtue of s. 88 of the Indian Act. This submission must be rejected for two reasons. Firstly, it cannot be said that the amendment of s. 38(6) affects the appellants' status as treaty Indians because, for the reasons given above, the treaty did not give to the appellants a right of access to the lands in question. Secondly, the appellants have not demonstrated, in my view, that the purpose or the effect of the amendment is to deprive them, as Indians, of a right of access. The decisions of this Court in Dick v. The Queen, 1985 CanLII 80 (SCC), [1985] 2 S.C.R. 309, and Kruger v. The Queen, 1977 CanLII 3 (SCC), [1978] 1 S.C.R. 104, are determinative of this argument in my opinion.

52. For the reasons given above I do not believe that the appellants have established that they had a right of access to occupied private lands on any of the grounds put forward. Having failed on this point the appellants are not immune from the provisions of The Wildlife Act and thus they were properly convicted of the offences for which they were found guilty at trial. I would dismiss this appeal and restore the orders of the trial judge with respect to conviction and sentence.

Appeal dismissed.

Solicitors for the appellants: Cherkewich & Pinel, Prince Albert.

Solicitor for the respondent: Kenneth W. MacKay, Regina.