Jacob et al., R. c.

  • Document:
  • Date: 2018

Her Majesty the Queen v. Jacob et al.*

[Indexed as: R. v. Jacob]

94 O.R. (3d) 674

Court of Appeal for Ontario,

O’Connor A.C.J.O., MacPherson and Juriansz JJ.A.

January 27, 2009

 

* Vous trouverez la traduction français à la p. 690, post.

 

Aboriginal peoples — Hunting rights — Aboriginal defendants properly convicted of hunting at night despite fact that they were beneficiaries of Treaty 9 rights and were hunting within area covered by Treaty 9 — Aboriginal right to fish and hunt in Treaty 9 subject to exception for “such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” — Defendants hunting on road which was used by lumber company’s employees and general public — Hunting on road visibly incompatible with use to which road had been put for many years — Defendants’ hunting on road excluded from treaty protection by “lands taken up” limitation in Treaty 9.

Criminal law — Provincial offences — Fish and wildlife — Gravel road which was commonly used by lumber company’s employees and by general public constituting “right of way for public vehicular traffic” within meaning of s. 17(1)(e) of Fish and Wildlife Conservation Act — Crown not required to prove that provincial government or someone else with legal authority granted public right to use land by way of dedication or other legal process — Defendant who fired shots across road guilty of discharging firearm across road contrary to s. 17(1)(e) of Act — Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, s. 17(1)(e).

The aboriginal defendants were hunting moose from a van on a gravel road at night. They were charged with hunting at night contrary to s. 20(1)(a) of the Fish and Wildlife Conservation Act, 1997 and one of them was also charged with discharging a firearm across a road contrary to s. 17(1)(e) of the Act. The justice of the peace rejected the defendants’ argument that they had a defence to the charges because they were exercising their right to hunt under Treaty 9 at the relevant time. The defendants were convicted, and their conviction was affirmed by the summary conviction appeal judge. The defendants appealed.

 

Held, the appeal should be dismissed.

 

Section 17(1)(e) of the Act makes it an offence to “discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic”. In order to establish that the land in question is a “right of way for public vehicular traffic”, the Crown is not required to prove that the provincial government or someone else with legal authority has granted the public the right to use the land by way of dedication or other legal process. One of the purposes of s. 17(1)(e) is to protect members of the public who are travelling in vehicles from the dangers arising from the discharge of firearms.

That purpose can best be achieved by interpreting the phrase “a right of way for public vehicular traffic” broadly so as to protect members of the public driving on all lands that are open to public use in vehicles. There was evidence that the road in this case was a roadway used by the public. The defendant was properly convicted of the offence under s. 17(1) (e). [page675] The aboriginal right to fish and hunt in Treaty 9 is subject to an exception for “such tracts as may be required or taken up form time to time for settlement, mining, lumbering, trading or other purposes”. The test for determining whether lands are “taken up” is whether the use being made of the land is visibly incompatible with the exercise of the treaty right. Whether or not land has been taken up is a question of fact that must be resolved on a case-by-case basis. Hunting on the road in question in this case was visibly incompatible with the use to which the road had been put for many years. It was a well-established primary haul road used both by lumber company employees and the public. Roadways used by the public are incompatible with hunting. The defendants knew about the uses to which the road was put. They were properly convicted of hunting at night.

 

Cases referred to

 

R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39, 133 D.L.R. (4th) 324, 195 N.R. 1, [1996] 4

W.W.R. 457, J.E. 96-737, 37 Alta. L.R. (3d) 153, 181 A.R. 321, 105 C.C.C. (3d) 289, [1996] 2

C.N.L.R. 77, 30 W.C.B. (2d) 211, apld

R. v. Morris, [2006] 2 S.C.R. 915, [2006] S.C.J. No. 59, 2006 SCC 59, 274 D.L.R. (4th) 193, 355

N.R. 86, [2007] 3 W.W.R. 34, J.E. 2007-52, 234 B.C.A.C. 1, 62 B.C.L.R. (4th) 1, 215 C.C.C. (3d)

289, [2007] 1 C.N.L.R. 303, 71 W.C.B. (2d) 591, EYB 2006-111894, distd

 

Other cases referred to

 

BellExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC

42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100

B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d)

52; R. v. Bernard, [2002] N.S.J. No. 15, 2002 NSCA 5, 200 N.S.R. (2d) 352, [2002] 2 C.N.L.R.

200, 52 W.C.B. (2d) 342; R. v. Brertton, [1999] A.J. No. 1152, 1999 ABCA 285, 244 A.R. 355,

[2000] 1 C.N.L.R. 201, 44 W.C.B. (2d) 13 (C.A.) [Leave to appeal to S.C.C. refused [1999]

S.C.C.A. No. 594]; R. v. Fox, [1994] O.J. No. 667, 71 O.A.C. 50, [1994] 3 C.N.L.R. 132, 23

W.C.B. (2d) 279 (C.A.); R. v. Mousseau, [1980] 2 S.C.R. 89, [1980] S.C.J. No. 44, 111 D.L.R. (3d)

443, 31 N.R. 620, [1980] 4 W.W.R. 24, 3 Man. R. (2d) 338, 52 C.C.C. (2d) 140, [1980] 3 C.N.L.R.

63, 4 W.C.B. 404; R. v. Therriault, [1999] O.J. No. 5428 (C.J.)

 

Statutes referred to

 

First Nations Fiscal and Statistical Management Act, S.C. 2005, c. 9, s. 151

Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, ss. 1, 17, 20(1)(a), 119(1) Game and Fish Act, R.S.O. 1990, c. G.1 [rep.], ss. 20-23

Indian Act, R.S.C. 1985, c. I-5, s. 88

Wildlife Act, R.S.B.C. 1996, c. 488 Authorities referred to

Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 257 (December 8, 1997)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Butterworths, 2008)

Youngblood, James (Sákéj) Henderson, Treaty Rights in the Constitution of Canada (Toronto: Thompson Canada Ltd., 2007)

APPEAL from the dismissal of an appeal by Petit-Baig J. and the decision of Justice of the Peace Leaman reported at [2004] O.J. No. 5055, 2004 ONCJ 318 (C.J.); [2001] O.J. No. 6217 (C.J.); and

[2002] O.J. No. 2382, 54 W.C.B. (2d) 339 (C.J.) affirming [page676] convictions for offences under the Fish and Wildlife Conservation Act, 1997.

Francis J. Thatcher and Mary D. Bird, for appellants.

E.  Ria Tzimas and Michael E. Burke, for respondent.

Brian D. Wilkie, for Ministry of Natural Resources.

 

The judgment of the court was delivered by

 

O’CONNOR A.C.J.O.: —
I.                Overview

 

[1]  This is an appeal from the decision of Petit-Baig J. upholding the appellants’ convictions by a justice of the peace for hunting at night contrary to s. 20(1)(a) of the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41 (“FWCA”), and discharging a firearm across a road (Jacob only) contrary to s. 17(1)(e) of the FWCA.1

 

[2]  The main issue on this appeal is whether the appellants, who are members of the Aroland First Nation, had a defence to the charges because they were exercising a right to hunt under Treaty 9. In my view, they did not. They were hunting on Greta Road, which is excluded from treaty protection by the “lands taken up” limitation in Treaty 9.

 

II.               Facts

 

(i)               The events

 

[3]  After dark on October 8, 1999, the appellants were hunting moose from a van driven by Stewart Yapput on Greta Road, a lumbering road outside of Geraldton, Ontario. At approximately 9:00 p.m., they passed a moose decoy that had been set up by conservation officers on the east side of the road as part of an enforcement operation to catch illegal hunters.

 

[4]  As they passed the decoy, Stewart Yapput slowed the vehicle and shone a spotlight at the decoy from the driver’s side across the roof of the van. As he was doing that, a large logging truck approached from behind and he drove off.

 

[5]  In a few minutes, the van returned and stopped across from the decoy. Stewart Yapput shone the spotlight out of the driver’s window, illuminating the decoy. The appellant, Jacob, got out of the van, loaded his .303 rifle and, while standing on [page677] Greta Road, fired four shots at the decoy. The conservation officers, who observed these events, charged the appellants with the two offences that underlie this appeal.

 

(ii)              Greta Road

 

[6]  Greta Road is a gravel road. It is a primary haul road used by Kimberly Clark in its forest operations. Kimberly Clark produces a map for the public indicating the locations where it has active forest harvesting operations. The map shows a number of roads, including Greta Road, and states that roads are “generally open to the public” although they may be closed at times to protect employees and equipment. The text accompanying the map includes a warning: “never shoot along or across a main haul road”.

 

[7]  The speed limit on Greta Road is 80 kilometres per hour. The road has the normal traffic signs indicating the speed limit as well as stop signs and yield signs. Employees of Kimberly Clark are the most common users, but the road is also driven frequently by members of the public, including hunters, fishermen, trappers, blueberry pickers, snowmobilers and cross-country skiers. The appellants were using the road as members of the public. There is a subdivision at the southern end of Greta Road not far from where it joins a main highway. In addition to the logging truck mentioned above, the conservation officers’ vehicles, the appellants’ van and other vehicles were on Greta Road on the night of the incident.

 

[8]  There was no evidence about when Greta Road was first built, however, one of the conservation officers testified that it had been in use for at least the 12 years that he had worked in the area.

 

(iii)              Treaty 9

 

[9]  Treaty 9 was made in 1905 and 1906. Also described as the James Bay Treaty, it resulted in the surrender of the Aboriginal interests throughout a substantial part of Northern Ontario. The ceded territory covers approximately 90,000 square miles of the lands drained by the Albany and Moose River systems, together with the portions of the Northwest Territories lying between the Albany River, the district of Keewatin and Hudson’s Bay.

 

[10]  It is common ground that the appellants are beneficiaries of Treaty 9 rights and they were hunting within the area covered by Treaty 9.

 

[11]  Treaty 9 provides the signatories and their descendants with the right to hunt, fish and trap throughout the Treaty 9 area. The treaty sets out two limitations on those rights — one relating to government regulation and the other relating to [page678] areas in which the rights would not apply. The relevant provision reads as follows:

And His Majesty the King hereby agrees with the said Indians that they shall have the 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 His 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.

 

(iv)             The traditional practices

 

[12]  Isaak Magiskan, an elder from the Aroland First Nation, the First Nation to which the appellants belong, testified that he was taught as a child and a young man that he had the treaty right to hunt at night. His father, who was born in 1908, three years after Treaty 9 was made, and his uncle were hunters and taught him about the night hunting practices.

 

[13]  Mr. Magiskan explained there were a number of reasons why moose moved more frequently during night hours and were thus considerably easier to locate. The reasons included the amount of human traffic during the daytime, the fact that moose feed at night and the beginning of the rutting season in September and early October. Mr. Magiskan considered that night hunting was preferable to day hunting. He explained that his father had hunted at night and knew where the moose came to feed in the rivers at night.

 

[14]  Mr. Magiskan testified that there would be a negative impact on his community’s ability to feed itself should the members of the community not be allowed to hunt at night.

 

(v)             The relevant legislation

 

[15]  The FWCA provides a provincial statutory scheme aimed at ensuring the conservation of fish and wildlife in Ontario and safe hunting practices.

 

[16]  The relevant sections of the FWCA provide as follows:

17(1) A person who is in an area usually inhabited by wildlife or who is on the way to or from an area usually inhabited by wildlife shall not,

. . . . .

(e)       in a part of Ontario to which clause (d) does not apply, discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic.

. . . . . [page679] 20(1) A person shall not, during the period from half an hour after sunset to half an hour before sunrise,

(a)       hunt wildlife;

 

[17]  Section 88 of the Indian Act, R.S.C. 1985, c. I-5 provides that provincial laws of general application apply to Aboriginal persons. However, it specifically provides that provincial laws are subject to the terms of any treaty. At the relevant time, the section read as follows:

88. Subject to the terms of any treaty and any other Act of Parliament, 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 those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act. (Emphasis added)2

 

III.              The Reasons Below

 

(i)               The trial judgment

 

[18]  The justice of the peace decided the issues before him in two separate sets of reasons. The first was released on April 27, 2001. In those reasons, the justice of the peace dealt first with the charge against Jacob under s. 17(1)(e) of the FWCA of shooting across a public roadway. He found that Greta Road is “a right of way for public vehicular traffic” within the meaning of s. 17(1)(e). He held that Greta Road constituted “lands taken up” within the meaning of Treaty 9 and that, as such, Greta Road is not a location from which the appellants may claim a treaty right to hunt. On the basis of this reasoning, he convicted Jacob of the charge.

 

[19]  With respect to the charges under s. 20(1)(a) of the FWCA, the justice of the peace held that the appellants had established a treaty right to hunt “at this location, at this time of day” and that s. 20(1)(a) of the FWCA imposes an undue hardship on this preferred method of hunting.

 

[20]  The justice of the peace went on to find that the appellants had made a “prima facie case that they have a treaty right” to hunt at night. He indicated that the Crown should have the opportunity to lead evidence on the issue of the safety of hunting at night. After hearing that evidence, he would decide if the [page680] Crown had justified the infringement of the appellants’ treaty rights on the basis of safety.

 

[21]  After hearing the evidence relating to safety, the justice of the peace issued a second set of reasons dated April 8, 2002. In those reasons, he reversed his earlier conclusion that the appellants had a treaty right to hunt at night. He reached this decision in part on the basis of cases such as R. v. Bernard, [2002] N.S.J. No. 15, 200 N.S.R. (2d) 352 (C.A.), in which provincial laws banning night hunting had been upheld.

 

[22]  In addition, the justice of the peace concluded that the appellants had not demonstrated that night hunting “was integral to the distinctive culture of the group claiming the right to hunt at night”. He went on to hold that the limitation imposed by s. 20(1)(a) of the FWCA against night hunting was not unreasonable and, as such, did not infringe the appellants’ right to hunt.

 

[23]  The justice of the peace therefore convicted the appellants of the charges of night hunting contrary to s. 20(1) (a) of the FWCA.

 

(ii)              The summary conviction appeal

 

[24]  The appellants appealed the convictions under both sections. With respect to Jacob’s appeal of the conviction under s. 17(1)(e), the summary conviction appeal judge said that the justice of the peace had considered the appropriate law when he found that Greta Road constituted “lands taken up”. She therefore upheld the conviction.

 

[25]  As to the convictions under s. 20(1)(a), the summary conviction appeal judge held that the overwhelming authorities held that treaty rights to hunt must be exercised with due concern for safety and that safety is an important purpose of the prohibition against night hunting.

 

[26]  The summary conviction appeal judge accepted the justice of the peace’s conclusion that reasonable regulations aimed at safety do not infringe Aboriginal treaty rights.

 

[27]  She therefore dismissed the appeal.

 

IV.            Issues

 

[28]  The only issues that I find necessary to address in order to decide this appeal are the following:

(1)           Did the justice of the peace err in concluding [ [2001] O.J. No. 6217 (C.J.), at para. 2] that Greta Road was a “right of way for public vehicular traffic” within the meaning of s. 17(1)(e) of the FWCA? [page681]

(2)           Did the justice of the peace err in concluding that Greta Road constituted “lands taken up” within the meaning of Treaty 9?

(3)           If the answers to issues 1 and 2 are no, were the appellants hunting on Greta Road?

(4)           What effect, if any, does the Supreme Court of Canada decision in R. v. Morris, [2006] 2 S.C.R. 915, [2006] S.C.J. No. 59, have on this case?

 

[29]  Given my conclusions on these issues, I do not find it necessary to address the appellants’ fresh evidence application or their argument about constitutional estoppel.

 

V.            Analysis

Issue #1: Subsection 17(1)(e) of the FWCA

 

[30]  The appellant, Jacob, argues that this court should set aside his conviction and enter an acquittal on the charge under s. 17(1)(e) of the FWCA because the justice of the peace erred in concluding that Greta Road was a “right of way for public vehicular traffic” as required by the subsection. I do not accept this argument. In my view, there was ample evidence to support the justice of the peace’s conclusion.

 

[31]  For convenience, I repeat s. 17(1)(e). It reads:

17(1) A person who is in an area usually inhabited by wildlife or who is on the way to or from an area usually inhabited by wildlife shall not,

. . . . .

(e)       in a part of Ontario to which clause (d) does not apply, discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic.

 

(Emphasis added)

[32]  The phrase “right of way for public vehicular traffic” is not defined in the legislation nor has it been interpreted by this court.

 

[33]  The appellant, Jacob, argues that the phrase requires the Crown to prove that the land on which vehicles travel is a “lawful right of way” for public use. By that, the appellant means that it is necessary that the provincial government or someone else with legal authority have granted the public the right to use the land by way of dedication or other legal process.

 

[34]  In response, the Crown argues that the purpose of the subsection is to protect the public. Thus, the subsection is aimed at prohibiting discharging firearms in or across places where the public drives vehicles. The requirement that there be a “right of [page682] way” for public use does not refer to a formal or legal grant of a right of way to the public. Rather, the requirement is focused on the public’s actual use of the land in question. The subsection applies if it can be shown that the public uses the land with the permission of the person who controls its use whether that person is a government authority, private individual or company.

 

[35]  The well-established approach to statutory interpretation is set out by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, as follows:

 

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

[36]  This approach to statutory interpretation — sometimes referred to as the textual, contextual and purposive approach — requires an examination of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found.

 

[37]  I start by looking at the language. It seems to me the phrase “a right of way for public vehicular traffic” is open to either of the interpretations urged by the parties. I do not think that the language of the subsection standing alone does much to advance the resolution of the issue.

 

[38]  However, in my view, the context of s. 17(1)(e) and most importantly its purpose, point strongly towards the broader interpretation urged by the Crown.

 

[39]  As to the context of the subsection, it is relevant to look to the legislative history.3 As stated by Ruth Sullivan in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Butterworths, 2008), at pp. 577-78:

It is well established that the legislative evolution of provisions may be relied on by the courts to assist interpretation. As Pigeon J. wrote in Gravel v. St. Léonard (City):

Legislative history may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it. [page683]

. . . . .

The interpreter then examines the changes made to the provision by each subsequent amendment and determines the significance of each. A change may be merely formal, to improve the formulation of the law without changing its substance, or it may be substantial, designed to change the content of the law.

 

(Footnotes omitted)

[40]  The prior legislative formulation of s. 17 of the FWCA was s. 21 of the Game and Fish Act,

R.S.O. 1990, c. G.1.4 The relevant part of s. 21 read:

21(1) No person, while engaged in hunting or trapping game or while going to or returning from a hunting camp or locality in which game may be found, shall,

 

. . . . .

(c)       in any part of Ontario that is not a county or regional municipality designated in the regulations, discharge a firearm from or across the travelled portion of a highway, road, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, used or intended for use by the public for the passage of vehicles.

 

(Emphasis added)

[41]  Subsection 21(1)(c) did not require that the land on which the public travelled be dedicated by government or even intended for public travel. Nor did it require that there be a legal grant authorizing the use by the public. Use by the public, nothing more, was sufficient to attract the protection afforded by the subsection. In addition, the wording of s. 21(1)(c) was sufficiently broad to include a privately owned or privately maintained roadway if it was used by the public. Some of the roadways listed (e.g., driveways, squares and places) could be owned and/or maintained by private individuals.

 

[42]  I am satisfied that one of the purposes of s. 21(1)(c) was public safety. It may be argued that the subsection was also directed at ensuring the sportsman’s ethic of providing wildlife with a sporting chance.5 However, the focus of the subsection is [page684] on thoroughfares that are used or intended for use by the public. It is self evident that discharging a firearm from or across such a thoroughfare could constitute a serious risk to public safety. Undoubtedly, the subsection was aimed in part at least at protecting against such a risk.

 

[43]  In my view, the change in the wording from s. 21(1)(c) to s. 17(1)(c) in the FWCA is not “substantial” so as to suggest a change in the content of the law. It seems to me that the use of the new phrase “a right of way for public vehicular traffic” is consistent with an effort to improve the formulation of the subsection, not change its intent. It simplifies the list of potential thoroughfares to which the subsection applies and removes the possibility that the previous list was not sufficiently inclusive. Moreover, there is nothing in the Hansard Debates leading up to the enactment of the current provision to suggest that the revision in the wording of the subsection was intended to bring about substantial change. I would be hesitant to read into the new subsection an intention to narrow the public safety protection that existed in the predecessor subsection.

 

[44]  In my view, it seems likely that the change from s. 21(1)(c) to s. 17(1)(c) was stylistic and the intent of the previous subsection was not narrowed.

 

[45]  This view is consistent with the third prong of the statutory interpretation test, the purpose of the provision. One of the purposes of s. 17(1)(e) is to protect the public who is travelling in vehicles from the dangers arising from the discharge of firearms. David Ramsay, MPP, Timiskaming-Cochrane, described one of the purposes behind the FWCA as follows: “Safety in methods: It refers to things like unsafe areas for hunting and hunter clothing and the careless use of firearms and new penalties for that, which is very important, bringing that up to today; ways that I suppose in the old days we used to accept in hunting animals”: see Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 257 (December 8, 1997), at 1930 (David Ramsay). It would be inconsistent with this purpose to interpret s. 17(1)(e) as excluding some roadways on which the public lawfully travels because of the nature of the underlying authority permitting the travel. The purpose of the provision is to prohibit discharging a firearm across lands over which the public drives vehicles with permission. That purpose can best be achieved by interpreting the [page685] phrase “a right of way for public vehicular traffic” broadly so as to protect the members of the public driving on all lands that are open to public use in vehicles.

 

[46]  In this case, there was substantial evidence that Greta Road is commonly used by the public. Kimberly Clark maintains Greta Road so that it can be used easily by those who want to travel on it. Kimberly Clark grades the road, removes snow and maintains the culverts. Kimberly Clark employees use the road for lumbering purposes. In addition, Kimberly Clark invites the public to use the road. Its map states that its roads are “generally open to the public”. Members of the public use it frequently for a wide variety of recreational activities. Indeed, on the night the appellants were hunting on Greta Road, the video taken by the conservation officers showed that there were other vehicles using it.

 

[47]  Thus, the evidence established that Greta Road is a roadway used by the public.

 

[48]  The appellant, Jacob, argued that even if it is shown that Greta Road is used by the public, there is no evidence that the provincial Crown granted to Kimberly Clark an interest in the land that became known as “Greta Road”. Thus, it has not been shown that Kimberly Clark had any authority to grant the public “a right of way” to use the road.

 

[49]  I do not accept this argument. It takes an overly technical view of s. 17(1)(e). While it is true that the Crown did not lead evidence about the legal authority pursuant to which Kimberly Clark uses and maintains Greta Road, the uncontradicted evidence is that Greta Road is a well established and maintained road. It has been in use for at least 12 years and is one of the primary haul roads for Kimberly Clark’s lumbering operations. In the absence of some evidence suggesting otherwise, I see no reason to question Kimberly Clark’s authority for operating the road.

 

[50]  In any event, whatever authority Kimberly Clark may have for using and maintaining the road, the evidence shows that Kimberly Clark’s employees and the public routinely do in fact use Greta Road. It is that use that s. 17(1)(e) is intended to protect. I see no merit to this argument.

 

Issue #2: “Lands taken up”

[51]  As a defence to both charges, the appellants argue that at the time they were hunting, they were exercising a right to hunt at night pursuant to Treaty 9. [page686]

 

[52]  Treaty 9 contains a geographic limitation to the areas in which the beneficiaries have a right to hunt. The limiting clause reads as follows:

. . . saving and accepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

 

This is frequently referred to as the “lands taken up” limitation.

[53]  Throughout this proceeding, the Crown has taken the position that the appellants were not exercising a treaty right because they were hunting on Greta Road, which constituted “lands taken up” within the treaty limitation.

 

[54]  The test for determining whether lands are considered to be “taken up” is whether the use being made of the land is visibly incompatible with the exercise of the treaty right, in this case, night hunting. The leading case is the decision of the Supreme Court of Canada in R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39. Justice Cory said the following, at para. 58:

Accordingly, the oral promises made by the Crown’s representatives and the Indians’ own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting. Turning to the case law, it is clear that the courts have also accepted this interpretation and have concluded that whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis.

 

[55]  In R. v. Brertton, [1999] A.J. No. 1152, 244 A.R. 355 (C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 594, the Alberta Court of Appeal found that the “visible, incompatible” test in Badger is a subjective/objective test. The court stated, at para. 4:

We are of the opinion that the Summary Conviction Judge made no error in her statement of the “visible, incompatible use” test in Badger as a “subjective/objective” test. As stated by Moreau J., at p. 241: “the test is not what a particular hunter saw, but what signs of visible, incompatible use could be viewed from his vantage point if exercising due diligence”. We adopt her reasons on this issue. This view finds support from the application of the test by Cory J. in Badger itself.

 

[56]  Badger involved interpreting a geographic limitation clause in Treaty 8, not Treaty 9. However, the relevant language in the two treaties is the same. I recognize that the objective in interpreting the language in treaties is to determine the intentions of the parties at the time the treaty was made. There was no evidence in this case with respect to the intention of the parties in regard to the “lands taken up” provision at the time they entered into Treaty 9. However, given that the language in the two treaties is the same, I see no [page687] reason why the provision in Treaty 9 should be interpreted differently than the same language in Treaty 8. Indeed, there was no argument on this appeal that this court should not use the Badger test of visible, incompatible use in interpreting and applying the provision.

 

[57]  The “visible, incompatible” test is a reflection of the shared concern between the Crown and the First Nations for public safety. In Treaty Rights in the Constitution of Canada (Toronto: Thomson Canada Ltd., 2007), James (Sákéj) Youngblood Henderson states, at p. 727:

This test [the visible, incompatible test] is a manifestation of the public safety issue shared by the First Nations people and the Crown. It reflects the commitment not to hunt in certain places in a way that may threaten humans. If Treaty Indians are hunting in a manner that threatens humans or harms the environment or violates the Treaty avocation, then the Treaty justice clause gives shared authority to the Chiefs and the Crown to provide justice and punishment.

 

[58]  The determination of whether particular land constitutes “lands taken up” is a factual determination to be made on a case-by-case basis: Badger, at para. 58.

 

[59]  I am satisfied that the justice of the peace had regard to the proper principles in concluding that Greta Road was “lands taken up” and that there was evidence to support his conclusion. In determining that Greta Road constituted “lands taken up”, the justice of the peace said the following [ [2001] O.J. No. 6217 (C.J.), at paras. 3-4]:

For reasons I stated in the Therriault case, following the reasoning of the Supreme Court of Canada in Mousseau, I find on the evidence that Greta Road constituted “lands taken up” for the purpose of uses, namely a public road for transportation and logging, which are incompatible with hunting.

With respect to the defendant Jacob’s right to hunt from the location which he did, I find the reasoning of the Supreme Court of Canada in Badger, at paragraph 50, helpful, where Cory J. stated, “everyone can travel on public highways, but this general right of access cannot be read as conferring upon Indians a right to hunt on public highways.”

 

[Citations omitted]

[60] R. v. Therriault, [1999] O.J. No. 5428 (C.J.) and R. v. Mousseau, [1980] 2 S.C.R. 89, [1980] S.C.J. No. 44 were cases in which the Aboriginal accused persons were hunting on public highways. The defendants in those cases argued that they had a treaty right, or its equivalent in Mousseau, to hunt on a public highway because they had a right of access to the highway. The Supreme Court in Mousseau rejected this argument holding that hunting is not one of the purposes for which roads are made available and accessible for use by the public. [page688]

 

[61]  The justice of the peace specifically referred to the incompatibility of the use made of Greta Road with hunting. He was also alive to the Badger case. Importantly, in my view, the evidence in this case strongly supports the conclusion that hunting on Greta Road is visibly incompatible with the use to which the road has been put for many years. As described above, Greta Road was a well-established primary haul road used both by Kimberly Clark employees for lumbering purposes and the public for a wide range of recreational activities. Roadways used by the public are incompatible with hunting.

 

[62]  Moreover, the incompatibility of the use of Greta Road was visible to those, such as the appellants, who use the road. Vehicles use it frequently. It was well maintained and travelled. The appellants knew about the road, the uses to which it was put and that the Kimberly Clark maps invited the public to use it.

 

[63]  Finally, in my view, it does not matter that the Crown has not established who owns the land on which Greta Road is situate or under what authority Kimberly Clark operates and maintains the road. The Supreme Court of Canada in Badger made it clear that the “visible, incompatible use” test applied to both Crown land and privately owned lands. Rather than focusing on ownership, the court considered the compatibility of hunting to the actual use being made of the land. The court said the following, at paras. 65-66:

The “visible, incompatible use” approach, which focuses upon the use being made of the land, is appropriate and correct. Although it requires that the particular land use be considered in each case, this standard is neither unduly vague nor unworkable. . . .

Where lands are privately owned, it must be determined on a case-by-case basis whether they are “other lands” to which Indians had a “right of access” under the Treaty. If the lands are occupied, that is, put to visible use which is incompatible with hunting, Indians will not have a right of access. Conversely, if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty No. 8, will have a right of access in order to hunt for food.

 

[64]  In Badger, the court made no mention of considering the historical ownership of the land but rather emphasized that the “appropriate and correct” test “focuses upon the use being made of the land”.

 

[65]  It is important to note that unlike Treaties 4 and 7, Treaties 8 and 9 do not have process clauses. Treaties 4 and 7 expressly include the concept of delegated Crown grants or rights that take up tracts given by Her Majesty’s governments: [page689]

Her Majesty agrees that Her said Indians shall have right to pursue their avocations of hunting, trapping and fishing through the tract surrendered, . . .and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining or other purposes, under grant or other right given by Her Majesty’s said Government.6

 

(Emphasis added)

[66]  In the result, I am of the view that the justice of the peace did not err in concluding that Greta Road constituted lands taken up within the meaning of Treaty 9.

Issue #3: Were the appellants hunting on Greta Road?

 

[67]  I am satisfied that the only available conclusion on the record in this case is that both appellants were hunting on Greta Road.

 

[68]  First, the appellants admitted they were hunting on Greta Road. The agreed statement of facts at trial stated, “On the evening of October 8, 1999, the defendants were driving north on the Greta Road in a van, hunting for moose.”

 

[69]  Moreover, the uncontradicted evidence leads inevitably to the same conclusion.

 

[70]  The definition of hunting [s. 1] in the FWCA is as follows:

“hunting” includes,

(a)           lying in wait for, search for, being on a trail of, pursuing, chasing or shooting at wildlife, whether or not the wildlife is killed, injured, captured or harassed. . .

 

[71]  Clearly, the appellant, Jacob, was hunting on Greta Road when he shot at the decoy while standing on the road.

 

[72]  More broadly, the actions of both appellants throughout the time they were on Greta Road constituted hunting. It was the appellant, Yapput’s, idea to go hunting on Greta Road. The appellants drove north on Greta Road looking for moose. They had a spotlight and gun in the van to be used if they saw a moose. When they did see the decoy, the driver shone the spotlight from the van which was on the road and the appellant, Jacob, got out of the van, and while standing on the road, fired four shots at the decoy. Those actions constitute hunting under the FWCA.

Issue #4: The effect of Morris

 

[73]  The appellants argue that this court should set aside the convictions and enter acquittals on the night hunting charge based on the decision of the Supreme Court of Canada in Morris, [page690] which held that the prohibition against night hunting in the British Columbia Wildlife Act, R.S.B.C. 1996, c. 488 did not apply to the appellants in that case because they had a treaty right to hunt at night.

 

[74]  I do not accept this argument. The geographic limitations in the two treaties are significantly different. The North Saanich Treaty in Morris limited the treaty right to hunt on “unoccupied lands”. In Morris, the majority of the Supreme Court of Canada seems to have accepted that the lands upon which the appellants were hunting were “unoccupied lands” within the meaning of the treaty. There did not appear to be any issue that the treaty right to hunt at night did not apply to the area where the appellants in that case were hunting.

 

[75]  As I have concluded above, the “lands taken up” geographic limitation in Treaty 9 applies to Greta Road where the appellants were hunting. That conclusion distinguishes this case from Morris.

 

VI.            Disposition

[76]  In the result, I would dismiss the appeals.

 

Appeal dismissed.

 

Notes

 

1  The appellant, Perry Yapput, died on August 18, 2008.

2  Section 88 of the Indian Act was amended in 2005 to make laws of general application subject to the First Nations Fiscal and Statistical Management Act, S.C. 2005, c. 9: see s. 151.

3  See p. 573 of Sullivan, which provides: “In modern interpretive practice, courts have become accustomed to reading legislative texts in a broad context. Increasingly this context includes extrinsic aids that formerly were considered inadmissible… Legislative evolution and legislative history are relied on as both direct and indirect evidence of legislative intent.”

4  The Game and Fish Act was amended to include the phrase “a right of way for public vehicular traffic” in 1994, c. 27, s. 129(4). In 1997, the Game and Fish Act was repealed and replaced by the FWCA: see FWCA, s. 119(1)1.

5  In R. v. Fox, [1994] O.J. No. 667, [1994] 3 C.N.L.R. 132 (C.A.), this court considered s. 21(2) of the Game and Fish Act, which prohibited discharging a firearm from a power boat. In doing so, the court made generalized comments about the purpose of ss. 20 to 23 of that Act. It said, at p. 137 C.N.L.R.: “Sections 20 to 23, on the other hand, seem to be directed towards limiting the effectiveness of the ability to hunt rather than prescribing regulations to ensure that hunting is carried out safely.” That statement as it applied to sections other than s. 21(2) was obiter to the decision in Fox. I do not think the statement is accurate as to the purpose of s. 21(1)(c).

6  See Henderson, at pp. 731-32.

 

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