Tansi Nîtôtemtik,
In today’s blog, we discuss the Saskatchewan Court of Appeal’s (SKCA) 2022 decision in R v Green, which questioned whether the Natural Resources Transfer Agreement, 1930, as a constitutional agreement, allows Indigenous peoples who signed Treaty anywhere in Canada to hunt on the prairies.[1]
The case reminds us that there remains significant uncertainty and unfairness in the Canadian common law’s interpretation of the numbered Treaties, including unanswered questions about when Indigenous people can hunt for food and cultural purposes on the prairies.[2]
Hunting, Treaties and the NRTA
In 1930, to create parity with other provinces, Canada transferred control of most lands and natural resources to provincial governments on the prairies through a series of identical agreements called Natural Resources Transfer Agreements (NRTAs).[3]
In 1977, the Supreme Court of Canada (SCC) in Frank found that a Treaty 6 rights holder from Saskatchewan could hunt anywhere in Alberta.[4] In so doing, it affirmed that the NRTAs unilaterally “merged and consolidated” the Treaty rights of “Indians” from Treaty 6 and replaced them with the right to hunt for food only (i.e. sustenance of an individual and their family).[5] The NRTAs were seen to territorially extended where Treaty 6 rights holders could hunt – from just their Treaty area to the whole of the province(s) their Treaty area touched.[6]
In Horseman, the SCC upheld the conviction of a Treaty 8 rights holder who sold a grizzly bear hide to support his family.[7] The decision found that the NRTAs contained a “quid pro quo” – in exchange for “widening” the area that rights holders could hunt for food to the entire province, the Court said the NRTAs extinguishing the right of Treaty 8 members to hunt for commercial purposes.[8]
The idea that the numbered Treaties could be unilaterally changed in any way is opposed by Treaty rights holders. It is an ongoing source of tension in Crown-Indigenous relations that is long past due to be addressed.
Delreé Dumont – Surrounded by Medicine
Image Source: https://www.lawsociety.ab.ca/about-us/key-initiatives/indigenous-initiatives/indigenous-land-acknowledgements/
R v Green
In R v Green, two Indigenous hunters from the Six Nations First Nation, a signatory to the Nanfan Treaty in southern Ontario, were charged with illegal hunting in Saskatchewan.[9] The trial judge acquitted the hunters on the grounds that they had a right to hunt under the NRTAs.
On appeal, the Saskatchewan Court of Queen’s Bench reversed the trial decision, finding that only those Indigenous people who are members of Treaties that overlap Saskatchewan (Treaties 2, 4, 5, 6, 7, 8, or 10) can hunt in Saskatchewan.[10]
On appeal to the SKCA, the Appeal Court set aside the previous decisions and ordered a new trial on the grounds that both lower courts had erred in making a decision on an important constitutional issue in the face of inadequate evidence.[11] The SKCA found that, among other things, “no historical information about the negotiations, drafting or purpose of the NRTA was put before the Trial Judge even though evidence of this kind appears to be available …”[12]
As noted by Gunn & Sikka, the SKCA should be lauded for ensuring that a sufficient evidentiary record is available before interpreting historic agreements that touch on important rights.[13] However, it is concerning that the SKCA did not identify a lack of evidence on how Indigenous rights holders in the prairies interpret the NRTAs.[14]
Including Indigenous Perspectives in the “Correct Approach” to Interpreting the NRTAs
The importance of including the perspectives of Indigenous rights holders as part of the Court’s decision-making can be illustrated by looking at the “correct approach” to interpreting the NRTAs as explained by the SCC.[15]
In George Gordon First Nation, the SKCA summarized the SCC’s approach to interpreting the NRTAs, saying that the NRTAs “must be interpreted through their own unique historical, contextual and linguistic lens. If genuine ambiguity exists, the uncertainty will be resolved in favour of the Indigenous claimants. However, in interpreting the NRTAs, courts are “not free to invent new obligations foreign to the original purpose of the provisions at issue” ([R v Blais, 2003 SCC 44 at para 40]) and must pay heed to the caution that ”[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largess (R v Marshall, [1999] 3 SCR 456 at para 14).”[16]
Given the foregoing, at least two critical questions must be decided in any retrial of R v Green, including the following.
Question #1 - If there is ambiguity in the NRTAs, and if there is a question of whether all Treaty holders in Canada should be allowed to hunt in the prairies “must” be resolved in favour of the Indigenous claimants, then the question becomes whose “Indigenous perspective” must be considered? Must it be the Treaty rights holders from Ontario? Will the Court consider what the original signatories to the numbered Treaties think about the matter? Or will they consider both? As mentioned earlier, without identifying that Indigenous perspectives are necessary for correctly interpreting the SCC’s test, it’s possible the Court will consider neither source of, potentially conflicting, Indigenous perspectives.
Question #2 - What will constitute a “vague sense of after-the-fact largess” in the circumstances, especially given the promised “process of reconciliation” contained in s 35 of the Constitution Act, 1982?[17] Again, will the Court consider the perspective of the original Treaty signatories in making this determination? This question is especially important given the unfairness of how their Treaty with Canada was “unilaterally” amended by the NRTAs, including taking away commercial hunting rights in an unexplained and uninvited “quid-pro-quo”.
One can only hope the next Court will stop to consider these questions and do the right thing.
Until next time,
The Reconcili-ACTION YEG Team
[1] R v Green, 2022 SKCA 92 [R v Green].
[2] Kate Gunn & Nisha Sikka, “Indigenous Hunting Rights and the NRTA: Case Comment on R v Green” (1 December 2022), online (blog): First Peoples Law <www.firstpeopleslaw.com> [https://perma.cc/W498-VR44] [Gunn & Sikka].
[3] R v Green, 2021 SKQB 187 at para 50 [R v Green QB]
[4] Frank v R, [1977] 4 WWR 294 (SCC) at 100, 1 SCR 95 [Frank].
[5] Ibid at 100-102.
[6] Ibidi at 100-102.
[7] R v Horseman, 1990 CanLII 96 (SCC), [1990] 1 SCR 901 [Horseman].
[8] Ibid at 936.
[9] R v Green QB, supra note # at paras 1 – 12.
[10] R v Green, supra note # at para 5.
[11] R v Green, supra note # at para 58.
[12] Ibid at para 54.
[13] Gunn & Sikka, supra note #.
[14] Ibid.
[15] R v Green, supra note # at para 53.
[16] George Gordon First Nation v Saskatchewan, 2022 SKCA 41 at para 54 [George Gordon First Nation].
[17] See AltaLink Management Ltd. v Alberta (Utilities Commission), 2021 ABCA 342 at para 91 for a brief discussion on what “promises” s 35 of the Constitution Act, 1982 contains.
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