Please read the disclaimer before perusing the following article.
written 1996, published in Beef in B.C. Sept/Oct 96
Suppose you want to change some property boundaries and make differently shaped parcels of land from the ones you now have. What procedure do you have to follow, and what might you be required to do in order to have the realignment approved?
Ranchers have asked me whether or not Indian people are entitled to carry out traditional practices, without permission, on deeded land.
The answer is a qualified “no”.
In April, 1996, the Supreme Court of Canada (“SCC”) decided R. v. Badger. It, along with statements in the B.C. Court of Appeal decision in Delgamuukw, outlines the current state of the law. The Delgamuukw appeal will be shortly be argued at the SCC. The SCC decision on Delgamuukw may produce more law on this issue.
The central issue in the Delgamuukw appeal is whether or not aboriginal rights continue to exist in British Columbia; and if so, what is the nature of the rights. The BC Court of Appeal decided that aboriginal rights continue to exist. The Court defined aboriginal rights as land-based activities which are integral to the distinctive culture of an aboriginal society. The activity must have been in existence before 1846, and for long enough before that time for the activity to become integral to the culture. In previous articles I have called aboriginal rights “traditional practices” because I think it is more descriptive of the protected rights.
In the BC Court of Appeal reasons for judgment, Mr. Justice MacFarlane said “a fee simple grant of land does not necessarily exclude aboriginal use”. It was not necessary for the Court of Appeal to make a decision on this point in order to decide the central issue in the Delgamuukw case. (The central issue in Delgamuukw was whether aboriginal rights continue to exist in British Columbia, and if so, what is their nature.)
When a judge makes a comment about the law, and the comment is not necessary for the decision on the main issue in the case, the comment is not binding on a judge who later decides a case where that question (peripheral in the first case) is the central issue in the later case.
The issue of whether or not aboriginal rights continue to exist on deeded land, and may be practised there without the permission of the landowner, still remains to be decided in British Columbia.
Three similar cases were argued together before the SCC. Each case involved a Cree Indian hunting for food on deeded land within Treaty No. 8. In one case (Badger) the hunter was hunting outside hunting season. In two cases (Kiyawasew and Ominayak) the hunter was hunting without a hunting licence.
In British Columbia, Treaty No. 8 covers the Peace River area. Each of the three cases decided was from Alberta.
Facts. Mr. Badger was hunting on land covered with second growth willow and scrub. Although there were no fences or signs posted on the land, a farm house was located only a quarter mile from the site of the moose kill. The residence “did not appear to have been abandoned” (p. 27).
Mr. Kiyawasew was hunting on a snow-covered field. Although there was no fence, there were run-down barns nearby and signs were posted on the land. In the previous fall, a crop had been harvested from the field.
Mr. Ominayak was hunting on uncleared muskeg. No fences or signs were present, nor were there any buildings located near the moose kill.
Law. The judges looked first at the words of Treaty No. 8 (the treaty was made June 21, 1899):
And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described. subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. [bold emphasis mine].
Then they looked at the words of the Natural Resources Transfer Agreement, 1930 (NRTA):
12. 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. [bold emphasis mine].
The judges agreed that the NRTA is the dominant statement of the law. It must be interpreted in light of Treaty No. 8 and the Crown’s responsibility to deal with honour with Indian people. “Treaties are sacred promises and the Crown’s honour requires the Court to assume that the Crown intended to fulfil its promises.” (p. 15).
The judges found that the NRTA limits the geographical area where treaty Indians can hunt for food. The permitted areas are “all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access”. The “right of access” does not mean a general right of access, it is limited to a right of access for the purposes of hunting.
The judges discussed treaty interpretation—“it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing.” (p. 17).
The trial evidence was that in 1899 the Treaty No. 8 Indians would have understood that land had been “required or taken up” when it was being put to a use which was incompatible with the exercise of the right to hunt. “They understood land to be required or taken up for settlement when buildings or fences were erected, land was put into crops, or farm or domestic animals were present. Enduring church missions would also be understood to constitute settlement.” (p. 18).
The judges’ conclusion was that the geographical limitation on the hunting right should be based on a concept of visible incompatible land use. The judges quoted a number of historic references, including historians’ accounts of oral history from Treaty No. 8 elders, to confirm that visible incompatible land use was the historically appropriate test.
The judges found support for their conclusion in previously decided cases.
Decision. Applying the law to the facts (above), the judges decided that Badger and Kiyawasew were hunting in a location where they did not have a treaty right to hunt, and that Ominayak was hunting where he did have a treaty right to hunt.
Apart from the Treaty No. 8 area of the Peace River, R. v. Badger is NOT binding in British Columbia.
Apart from the Treaty No. 8 area and the Douglas Treaties on Vancouver Island, British Columbia is not subject to treaties. Legal theory is that aboriginal rights of general application are given up in exchange for treaty rights when an Indian community and the Crown enter into a treaty. According to the BC Court of Appeal in Delgamuukw, in non-treaty areas in British Columbia, aboriginal rights (traditional practices) continue to exist.
The decision in R. v. Badger is limited to Treaty No. 8 area and to the specific language of Treaty No. 8 and the NRTA.
The case is, however, a clear indication that the Supreme Court of Canada does not regard a fee simple title as an automatic termination of protected rights.
The Court said that “visible, incompatible land use” is required to bring the geographical limitation in the treaty into play.
One wonders what the judges would have decided had the landowner posted “no trespassing” signs on the “uncleared muskeg” on which Mr. Ominayak hunted.
There will come a case where judges will have to decide the question of how to mesh the trespass rights which go with every fee simple title (whether on improved or unimproved land) with the exercise of constitutionally protected aboriginal or treaty rights.
Until that case is decided on British Columbia facts, the question of whether or not aboriginal people can undertake traditional practices on deeded land as of right and without permission, will remain open.