Kruger and al. v. The Queen
Encyclopedia
| Kruger and al. v. The Queen | ||||||
|---|---|---|---|---|---|---|
 Supreme Court of Canada |
||||||
| Argued October 19, 1976 Decided May 31, 1977 |
||||||
|
||||||
| Holding | ||||||
| The Wildlife Act applies to Indians under section 88 of the Indian Act. | ||||||
| Court membership | ||||||
|
||||||
| Case opinions | ||||||
|
Kruger and al. v. The Queen, [1978] 1 S.C.R. 104, was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the relationship between the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
and provincial game law
Game law
Game laws are statutes which regulate the right to pursue and take or kill certain kinds of fish and wild animal . Their scope can include the following: restricting the days to harvest fish or game, restricting the number of animals per person, restricting species harvested, and limiting weapons...
s. The Indian Act is a federal law enacted under the British North America Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, which gives jurisdiction over Aboriginals to the federal government. The Court found that the Indian Act's statement that provincial laws may apply to Aboriginal peoples in Canada
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
as long as they apply to other people protects laws even if these laws affect Aboriginals more than others.
Background
Jacob Kruger and Robert Manuel were Penticton First NationsFirst Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
people (also known as "Indians") in British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
who killed deer
Deer
Deer are the ruminant mammals forming the family Cervidae. Species in the Cervidae family include white-tailed deer, elk, moose, red deer, reindeer, fallow deer, roe deer and chital. Male deer of all species and female reindeer grow and shed new antlers each year...
outside hunting
Deer hunting
Deer hunting is survival hunting or sport hunting, harvesting deer, dating back to tens of thousands of years ago. Which occurred though out Europe Asia and North America There are numerous types of deer throughout the world that are hunted.- New Zealand :...
season. This was the land on which their tribe usually hunted, and it now belonged to the Crown. Since the hunting violated the provincial Wildlife Act, they were charged, but they appealed citing their Aboriginal rights under the Royal Proclamation, 1763.
The British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
upheld the convictions, pointing to section 88 of the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
. Section 88 stipulates that, "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." The Court of Appeal found that this section allowed the Wildlife Act to apply to Aboriginals.
Decision
Justice Brian DicksonBrian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, writing for a unanimous Court, decided against Kruger and Manuel. Dickson first found that if hunting rights have been denied, it is not necessarily true that compensation must be provided in turn. No property was confiscated, as the Wildlife Act was geared toward a different purpose. Dickson also said that he would not reconsider the landmark Aboriginal case Calder v. Attorney General of British Columbia (1973) to determine how Aboriginal title is properly extinguished.
Turning to the general questions in the case, Dickson cited The Queen v. George to state that section 88 of the Indian Act protected provincial laws with provincial purposes. In pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
, the law must apply to all people and not just a specific people for it to be a "general application" under section 88. It did not even matter if the law, while applying to all, had a more significant impact on Aboriginals than other people; Dickson said that "There are few laws which have a uniform impact." Dickson then noted that the Wildlife Act's purpose did not specifically address Aboriginals, and that it covered all people. As Dickson quoted another judge as saying, "no statute of the Provincial Legislature dealing with Indians or their lands as such would be valid and effective; but there is no reason why general legislation may not affect them."
Dickson also found that there was no evidence regarding an Aboriginal-related motive to the legislation. Thus, the Wildlife Act's purpose, Dickson concluded, was to preserve a natural resource, namely the wildlife, and was not meant to limit Aboriginal rights. Regarding whether hunting is an Aboriginal right, Dickson noted that "However abundant the right of Indians to hunt and to fish, there can be no doubt that such right is subject to regulation and curtailment by the appropriate legislative authority." This case could be distinguished from an Aboriginal victory in R. v. White and Bob (1965). In the Kruger case, there was no treaty that would trump the provincial law under section 88.
Finally, Dickson stated that if section 88 can incorporate the Wildlife Act (instead of the Wildlife Act being effective in its own right), the Aboriginals would have the burden of proof that the Wildlife Act was inconsistent with the Indian Act.
Commentary
As Professor Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
writes, Indianness (primary Aboriginal issues under federal jurisdiction), should include hunting on a reserve
Indian reserve
In Canada, an Indian reserve is specified by the Indian Act as a "tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band." The Act also specifies that land reserved for the use and benefit of a band which is not...
. This was demonstrated in R. v. Jim
R. v. Jim
R. v. Jim 26 C.C.C. 236, was a decision by the British Columbia Supreme Court on Aboriginal hunting and provincial game laws...
(1915) and R. v. Isaac (1976). Outside a reserve, hunting as Indianness is more debatable; as this was what happened in the Kruger case, it appeared such hunting is not Indianness, but in Dick v. The Queen (1985), the Supreme Court assumed such hunting is Indianness.
See also
- List of Supreme Court of Canada cases (Laskin Court)
- The Canadian Crown and First Nations, Inuit and MétisThe Canadian Crown and First Nations, Inuit and MétisThe association between the Canadian Crown and Aboriginal peoples of Canada stretches back to the first interactions between North American indigenous peoples and European colonialists and, over centuries of interface, treaties were established concerning the monarch and aboriginal tribes...
Canadian Aboriginal case law
- Numbered TreatiesNumbered TreatiesThe numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
- Indian ActIndian ActThe Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
- Section Thirty-five of the Constitution Act, 1982Section Thirty-five of the Constitution Act, 1982Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
- Indian Health Transfer Policy (Canada)Indian Health Transfer Policy (Canada)The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...