R. v. Badger
Encyclopedia
R. v. Badger, [1996] 1 S.C.R. 771 is a leading 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...

 decision on the scope of aboriginal treaty rights. The Court set out a number of principles regarding the interpretation of treaties between the Crown and 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....

.

Background

Wayne Badger, Leroy Kiyawasew, and Ernest Ominayak were Cree
Cree
The Cree are one of the largest groups of First Nations / Native Americans in North America, with 200,000 members living in Canada. In Canada, the major proportion of Cree live north and west of Lake Superior, in Ontario, Manitoba, Saskatchewan, Alberta and the Northwest Territories, although...

 and status Indians under the Treaty No. 8. They were each caught hunting for food on private land. Badger was caught near a farm house, Kiyawasew was caught in a farmer's field, while Ominayak was caught in a field of Muskeg
Muskeg
Muskeg is an acidic soil type common in Arctic and boreal areas, although it is found in other northern climates as well. Muskeg is approximately synonymous with bogland but muskeg is the standard term in Western Canada and Alaska, while 'bog' is common elsewhere. The term is of Cree origin, maskek...

. They were charged under the Wildlife Act. At trial the three accused argued that they were entitled to hunt as part of their aboriginal treaty rights. The Crown argued that the Natural Resources Transfer Agreement of 1930 had extinguished the rights granted by Treaty No. 8. The accused were convicted and the convictions were upheld on appeal.

The issues before the Supreme Court were:
  1. whether status Indians under Treaty No. 8 have the right to hunt for food on privately owned land which lies within the territory surrendered under that Treaty.
  2. whether the hunting rights set out in Treaty No. 8 have been extinguished or modified by the Natural Resources Transfer Agreement.
  3. the extent, if any, that sections 26(1) (requiring a hunting licence) and 27(1) (establishing hunting seasons) of the Wildlife Act applied to the accused.

Reasons of the court

Justice Cory, writing for the majority, held that the appeals of Badger and Kiyawasew should be dismissed but Ominayak's appeal should be allowed and a new trial should be directed.

The Treaty, Cory found, granted the right to "pursue their usual vocations of hunting, trapping, and fishing", which was limited by geography and the right of the government to conserve Wildlife.

Cory gave several principles in interpreting treaties:
  1. a treaty represents an exchange of solemn promises between the Crown and the various Indian nations.
  2. the honour of the Crown is always at stake; the Crown must be assumed to intend to fulfil its promises.
  3. any ambiguities or doubtful expressions must be resolved in favour of the Indians and any limitations restricting the rights of Indians under treaties must be narrowly construed.
  4. the onus of establishing strict proof of extinguishment
    Extinguishment
    Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...

     of a treaty or aboriginal right lies upon the Crown.


Cory then turned to the issue of the NRTA. He found that it extinguished the right to hunt commercially but not the right to hunt for food.

When interpreting any treaties, they must be given their natural meaning as understood by the Indians at the time that they were signed. The limitation of the hunting treaty should be based on visible, incompatible land use. On this basis, the appeals for Badger and Kiyawasew must be dismissed as they were hunting where it was visibly incompatible with the land use.

Cory considered whether the Wildlife Act, which required hunting licenses, violated their aboriginal right to hunt. He found that it did violate their rights and could not be justified under the Sparrow test.

See also

  • The Canadian Crown and First Nations, Inuit and Métis
    The Canadian Crown and First Nations, Inuit and Métis
    The 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 Treaties
    Numbered Treaties
    The 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 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 Thirty-five of the Constitution Act, 1982
    Section Thirty-five of the Constitution Act, 1982
    Section 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...

  • List of Supreme Court of Canada cases
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