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Case about portability of First Nations hunting rights in Sask. headed back to trial

A court case that has been sent back to provincial court in Saskatchewan concerns the portability of First Nations Treaty hunting rights from other parts of Canada. (Indigenous Services Canada - image credit)
A court case that has been sent back to provincial court in Saskatchewan concerns the portability of First Nations Treaty hunting rights from other parts of Canada. (Indigenous Services Canada - image credit)

Two First Nations hunters from Ontario who were first acquitted — then later convicted — of hunting charges in Saskatchewan are headed back to trial after a recent decision from the Saskatchewan Court of Appeal.

The case is about whether First Nations people from other provinces have the right to hunt and fish in Saskatchewan without provincial licences.

According to an agreed statement of facts, the two hunters from Six Nations hunted for food in Moose Mountain Provincial Park in October 2018 and were charged with unlawfully hunting.

They were acquitted in provincial court, but then convicted in Court of Queen's Bench after the Crown appealed.

In the original decision, the trial judge ruled Saskatchewan's Natural Resources Transfer Agreement (NRTA), which transferred jurisdiction of federal Crown land to the province, allows any Canadian treaty Indian to hunt on unoccupied Crown land.

Paragraph 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 Court of Queen's Bench judge ruled that the trial judge misinterpreted section 12 of the NRTA, saying those entitled to treaty hunting rights are subject to the geographical areas of the three Prairie provinces.

In a decision issued on Aug. 11, the Saskatchewan Court of Appeal said the interpretation of paragraph 12 of the NRTA raises a clear question of law of broad significance.

"This is not a case that affects only the appellants," the ruling said. "It concerns the proper interpretation of a constitutional agreement and has the potential to impact the rights of every Indian in Canada and the hunting, fishing and trapping resource bases of all three prairie provinces."

It also said the trial judge and the appeal judge were asked by both parties to make a decision without having the benefit of the necessary evidence.

The trial went forward on the basis of a very limited agreed statement of facts and no other evidence was presented, it said.

"Among other things, no historical information about the negotiation, drafting or purpose of the NRTA was put before the Trial Judge even though evidence of this kind appears to be available and has been introduced in other cases," the Saskatchewan Court of Appeal ruling said.

It has referred the matter back to provincial court for a new trial.