Three Treaty Indians who were convicted of contravening the Wildlife Act for recovering a moose from land they did not have a legal right to access have had their appeal dismissed.
Three members of the Big River First Nation (the “Appellants”) were convicted with hunting contrary to The Wildlife Act when three moose were killed on land that was alleged to be “visibly incompatible with hunting.” In R v Morin, 2022 SKCA 98, the Court of Appeal for Saskatchewan was reluctant to acquit the Appellants for firing their rifles across privately-owned land where moose were standing on a strip of uncultivated land at the edge of a slough. The Appellants argued that their hunting was lawful and within the definition of “hunting” under the legislation. They suggested that their entering onto the cultivated land to retrieve the dead game was merely incidental to their existing right to hunt. The Court rejected this argument based on the premise that the hunting included the shooting across the land and the driving onto the cultivated land which therefore fell within the legislation’s definition of “hunting.”
Background of Legal Proceedings
Lester Morin, Rose Morin and Richard Rabbitskin are Treaty Indians who had been hunting for food when they were charged with an offence and later convicted in Provincial Court. The lower court said that they did not have a Treaty right to hunt on the land in question because the cultivated land was “visibly incompatible with hunting.” They unsuccessfully appealed their convictions to the Court of Queen’s Bench. They then asked the Saskatchewan Court of Appeal to set aside the Queen’s Bench decision and to receive acquittals.
What the Law Says
The Court relied on R v Badger, 1996 CanLII 236 (SCC) (“Badger”) to interpret the Natural Resources Transfer Agreement (“NRTA”) and to determine whether the property that was hunted upon was lands to which Indians have a “right of access.” It concluded that, if the lands are occupied, that is “put to visible use which is incompatible with hunting,” Indians will not have a right of access to hunt for food unless given permission by the landowner. However, if privately-owned land is unoccupied, Indians will have a right to hunt there for food. The Appellants did not have permission from the landowner.
The Lands in Question
At the time, the land was covered in wheat stubble. The land was not fenced or marked with “no hunting” signs. The Appellants attempted to locate a landowner, but saw no farmyards and as such, they fired their rifles to kill the moose. The Appellants accepted that the cultivated parts of the land had been put to a visible use incompatible with hunting. However, they contended that this appeal was about the retrieval of dead game and that retrieving the moose by driving across cultivated land was not “hunting” as defined by The Wildlife Act.
The Court used statutory interpretation in deeming the provision that describes “hunting” as meaning more than just the killing of the wildlife. It also found that the firing over the cultivated land necessarily implicated that land in the act of shooting and was essential to the Appellant’s killing of the moose. The Appellants also relied on a principle from a British Columbia Court of Appeal decision which said that, “the hunting must take place on land that is unoccupied in the sense that the particular form of hunting that is being undertaken does not interfere with the actual use and enjoyment of the land by the owner or the occupier.” The Court did not rely on this argument and instead relied on Badger in considering whether privately-owned land is “unoccupied.” It distinguished the case from other precedent-setting cases because Badger requires a case-by-case analysis. In this case, the largest part of the land was cultivated and being actively farmed. The Appellant’s appeals were dismissed because the Court was not satisfied that they proved the appeal judge erred in law when he sustained their convictions of unlawfully hunting.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.