Her Majesty the Queen - v. -, 2019 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 44 Date: July 31, 2019 Ticket Nos.: 85340770, 85340776, 85340739 and 85340768 Location: Regina ___________________________________________________________________________ Between: Her Majesty the Queen - and - Albert Edward Green, Albert Raymond Green, Keelan Edward Green, Blair S. Hill, Darrell Claybren Hill Appearing: Mr. R. James Fyfe For the Crown Mr. Dusty T. Ernewein For the Accused JUDGMENT D. KOVATCH , J Background [ 1 ] The five accused are all members of the Six Nations First Nation located within the Province of Ontario.

That First Nation executed the Deed or Nanfan Treaty on July 19, 1701. All of these First Nation members face hunting charges within the Province of Saskatchewan. The charges arise out of two incidents. The accused, Blair S. Hill, is charged with unlawful hunting and unlawfully carrying a loaded firearm. It is alleged both charges arose on October 28, 2018, within the boundaries of the Moose Mountain Provincial Park. Albert Edward Green is charged with unlawfully hunting on October 28, 2018 and unlawfully hunting on October 29, 2018. It is

similarly alleged that both of these offences occurred within the boundaries of the Moose Mountain Provincial Park. [2] There is a second group of charges against Darrell Claybren Hill, Albert Edward Green, Albert Raymond Green and KeelanEdward Green. This second group of charges has each accused charged with unlawful hunting, possession of wildlife taken incontravention of the Act, and hunting on signed land without the consent of the owner.

It is alleged that this secondary group of offencesoccurred between October 29 and October 31, 2017, just west of Rocanville, Saskatchewan. [3] On the date of trial, it was determined that the trial would proceed on the October 28 and October 29, 2018 charges. Further, the charges related to 2017 would be adjourned to a later date to be spoken to. Agreed Statement of Facts [4] There was no viva voce evidence presented to the Court. The parties presented an Agreed Statement of Facts, and verballyagreed upon some other facts.

I understand the agreed upon facts to be as follows. [5] On October 28 and October 29, 2018, Albert Edward Green and Blair S. Hill, were hunting within the boundaries of MooseMountain Provincial Park. This provincial park is located entirely within the boundaries of the Province of Saskatchewan. As they wereengaged in hunting, the accused, Blair S. Hill, was carrying a loaded firearm. [6] Both of these individuals are of First Nations ancestry.

At the time, both were hunting for food, as opposed to hunting for acommercial or some other purpose. [7] Both of the accused are members of the Six Nations First Nation, located in the Province of Ontario. The Six Nations FirstNation executed the Nanfan Treaty of 1701. As a result, if necessary, both individuals claim to be “treaty Indians” as that term isnormally understood. [8] In addition, Mr. Fyfe conceded that certain Indian persons or treaty Indians had a right of access to and the right to huntwithin the Moose Mountain Provincial Park.

The Issues to be Determined [9] Clause 12 of the Saskatchewan Natural Resources Transfer Agreement reads as follows: In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canadaagrees 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 fishinggame 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 mayhave a right of access. [10] In the case of R v Sutherland (SCC), [1980] 2 SCR 451, the Court held that the Natural Resources TransferAgreements are constitutional documents.

Further, that clause 13 of the Manitoba Natural Resources Transfer Agreement (which isidentical to paragraph 12 of the Saskatchewan NRTA) conveyed constitutionally protected rights upon certain individuals. The provincecould not unilaterally abrogate or remove these hunting rights by the passing of provincial legislation.

To the extent that provinciallegislation abrogated or was contrary to this hunting right, that provincial legislation was ultra vires the province. [11] As a result, the issue in this case becomes whether these accused persons were lawfully exercising a right to hunt for food,under paragraph 12 of the Saskatchewan NRTA. If so, the charges must be dismissed. If however, they cannot bring themselves underor within the terms of paragraph 12, then presumably the provisions of The Wildlife Act, 1998, S.S. 1998, c. W-13.12 are constitutionaland applicable to them, in which case the accused must be convicted.

Determination of this larger issue brings into play a number ofissues of

interpretation, and a lot of history.

Historical Background and Facts [ 12 ] Beginning in 1871 and running through and until 1921, Her Majesty the Queen in right of Canada executed the Numbered Treaties with various Indian Bands. These Numbered Treaties cover a huge portion of the land mass of Western Canada, from Ontario into British Columbia and the Northwest Territories. Most of these treaties were executed before certain provinces were even formed, or before provincial boundaries were fixed in their current position. As a result, the boundaries of the Numbered Treaties bear almost no resemblance to existing provincial boundaries.

Rather, a number of the treaties cover land in two or three different provinces. [ 13 ] Treaty No. 2, executed in 1871, is mostly situated in southern Manitoba. It does however, cover a relatively small portion of land in the southeast corner of the Province of Saskatchewan. Treaty No. 4, executed in 1874, covers a large part of southern Saskatchewan. It also covers a small piece of land in western Manitoba and a small portion of land in southeastern Alberta. Treaty No. 5 covers a large portion of Manitoba. However, it also covers a small sliver of land in Saskatchewan near the Manitoba boundary.

Treaty No. 6, executed in 1876, covers a huge portion of central Saskatchewan and Alberta. Treaty No. 8, executed in 1899, covers a portion of northwestern Saskatchewan, a large portion of northern Alberta, and a portion of northeastern British Columbia. In addition, it covers a small portion of the Northwest Territories.

Treaty No. 10, executed in 1906, covers a large portion of northern Saskatchewan, and a small tip of land in eastern Alberta. [ 14 ] I think it is now fairly well accepted, at least in academic and legal circles, that the primary purpose of the numbered treaties was for the federal Crown to acquire and extinguish the Indian title, or Aboriginal title, so that the western lands might be opened up for settlement. Each of the treaties describe the geographic boundaries of the treaty lands, and refer to the various tribes or bands of Indians that resided within those boundaries.

In each of the treaties, the Indians “cede, release, surrender and yield up to the Government of the Dominion of Canada for Her Majesty the Queen…” their rights in the described lands. In return, the Crown made a number of promises to the Indians, including the setting aside of lands for Indian reserves, schooling and education and health care. The treaties also provided that the Indians would be allowed to continue to hunt, trap and fish.

For example, Treaty No. 4 states: And further, Her Majesty agrees that her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, 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 or other purposes under grant, or other right given by Her Majesty’s said Government. [ 15 ] Pursuant to this clause in Treaty No. 4 and like worded clauses in the other treaties, Indian persons have always maintained that they have a treaty right to hunt at all times of the year, and hunting laws are not applicable to them. [ 16 ] In 1905, the Provinces of Saskatchewan and Alberta were established.

At around that same time, the boundaries of the Province of Manitoba were modified to their present form. [ 17 ] When the other provinces were established, prior to the establishment of the prairie provinces, all of the unoccupied Crown lands and the natural resources and the revenues that came from them were transferred to the control of the province. However, with respect to the three prairie provinces, the Dominion of Canada maintained control and administration of all unoccupied Crown lands, together with the natural resources and revenues therefrom, within the boundaries of the three prairie provinces.

Presumably then, the establishment of the three prairie provinces had little effect or impact on the treaty right to hunt. The unoccupied Crown lands remained under federal government control, and the Indians still retained their treaty right to hunt on those unoccupied Crown lands. [ 18 ] However, the three prairie provinces saw themselves as being in a much inferior position, vis- à-vis the other provinces. Shortly after the establishment of the three prairie provinces, they began to agitate for a change.

They advocated for the transfer of all of the unoccupied Crown lands, resources and revenues to the applicable province. They finally gained this by the Natural Resources Transfer Agreements of 1930 . The Dominion of Canada executed separate Transfer Agreements with which each of the provinces of Manitoba, Saskatchewan and Alberta. However, each of these three agreements are very similar in their terms and in their wording. Following execution by representatives of each government, each province passed legislation affirming and ratifying the Agreement as did the Government of Canada.

Thereafter, legislation was passed by the Parliament of the United Kingdom ratifying and approving the Agreements. The Agreements came into force on the same day, that being the first day of the first month following ratification by the United Kingdom Parliament. [ 19 ] The primary purpose of the NRTAs was to transfer the administration and control of the lands and natural resources from Canada to the applicable province.

A secondary but important purpose of the Agreements was to acknowledge, list or catalogue, and protect third party interests in the land or resources that had been created by government disposition or grant while the lands were

administered by Canada. So for example under Clauses 2 to 5 inclusive, the province recognizes grants and transfers to a private interestand agrees to be bound by all such agreements entered into by Canada. Under Clause 13, Soldier Settlement lands are exempted fromthe transfer and remain under the jurisdiction of Canada. Under Clause 14, the same applies with respect to National Parks. [20] Prior to 1930, and pursuant to the treaty obligations, Canada had established a number of Indian reserves for various Indianbands.

Pursuant to the same treaties, Canada remained obligated to set aside further reserves for those bands. In addition, under s.91(24) of The Constitution Act, Canada remained responsible for legislation regarding Indians and Indian lands. In order to deal with theIndian rights that had been created, and for Canada to deal with its own constitutional obligations, three specific sections were placedwithin the Saskatchewan NRTA. They read as follows: Indian Reserves 10.

All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed, as well asthose confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada,and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of theunoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the province, select as necessary to enable Canada to fulfill its obligations under the treatieswith the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they hadnever passed to the province under the provisions hereof. 11.

The provisions of paragraph one to six inclusive, and of paragraphs eight of the Agreement made between the Government of the Dominion of Canada and the Government of the Province of Ontario on the 24th day of March, 1924, which said Agreement wasconfirmed by Statute of Canada, fourteen and fifteen George the Fifth

Chapter forty-eight, shall (except so far as they relate to the Bed ofNavigable Waters Act) apply to the lands included in such Indian reserves as may hereafter be set aside under the last preceding clause asif the said Agreement had been made between the parties hereto, and the provisions of the said paragraphs shall likewise apply to thelands included in the reserves heretofore selected and surveyed, except that neither the said lands nor the proceeds of the dispositionthereof shall in any circumstances become administrable by or be paid to the Province. 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 boundariesthereof, provided, however, that the said Indians shall have the right, which the province hereby assures to them, of hunting, trapping andfishing 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 Indiansmay have a right of access.

It is significant to note that these three clauses appear verbatim in the Alberta and Manitoba NRTAs, although the numbering may bedifferent. [21] Two of the earlier and important Saskatchewan Court of Appeal decisions following the NRTA were R v Smith (SK CA), [1935] 3 DLR 703 and R v Strongquill (SK CA), [1953] 2 DLR 264. In the Smith case, Mr. JusticeTurgeon stated: Although this case is of great interest and importance I do not think it will be necessary in disposing of it to examine minutely the state ofthe law existing prior to recent date, nor the Indian treaty or treaties referred to in the argument.

If these treaties, or the variousDominion or Provincial statutes referred to have any present bearing on the case it is only insofar as they may throw some light upon theinterpretation of certain words in the instrument which, in my opinion, now governs the relations of these Indians with the game laws ofSaskatchewan, and to which I am about to refer. Further, in the concurring judgment of Mr.

Justice Martin: The issue must be determined upon the construction of par. 12 of The Natural Resources Agreement, made between the Government ofthe Dominion of Canada and the Government of the province of Saskatchewan, and which provided the terms upon which the naturalresources within the boundaries of the province were transferred by the Dominion to the province. . . .

Pars. 10, 11 and 12 of the Natural Resources Agreement set out the terms with respect to the Indians and these paragraphs contain thelaw on the subject, notwithstanding anything in the British North America Act and notwithstanding anything in any Act of the Parliamentof Canada. Par. 12 makes provision for the right of the Indians to hunt and fish and is as follows: . . . [22] In the Strongquill decision, Mr. Justice Procter stated: In R v Smith, supra, this Court held that para. 12 now governs the relations of treaty Indians under the game laws of Saskatchewan ratherthan the old Indian treaties which have a bearing on the question only as they assist in an

interpretation of para. 12, supra. He went on to distinguish the Smith decision on the basis that Smith involved hunting in a game preserve and no one had access to agame preserve for hunting purposes. He ruled however, that if Indian persons had a right of access then paragraph 12 of the NRTAapplied and their rights could not be restricted by provincial game laws. He stated:

Section 13 of The Game Act, 1950, purports to affect Indians only. Doubtless within the ambit of provincial legislation under the civilrights sections of The British North America Act, 1867, the province has the right to pass game laws but it must be held not to have theright to alone, vary or affect the rights of treaty Indians granted to them under para. 12 of the agreement nor can any legislation of theDominion Government alone now affect those rights insofar as treaty Indians in this province are concerned even though jurisdiction inrespect of Indians was reserved to them by the BNA Act, 1867.

Game laws of the Province passed to secure a continuance of game andfish in the Province are within the purview of para. 12 and for that purpose reasonable and bona fide areas may be set aside for gamepreserves in which hunting by treaty Indians may be prohibited under the reasoning applied in Rex. v Smith, supra.

Attempts however tolimit, exclude or prohibit the rights granted to treaty Indians to hunt, trap or fish for food on all unoccupied Crown lands and on any otherlands to which the Indians may have a right of access must be viewed in light of the true intent of the words used in para. 12 by theparties. [23] For many years following these decisions, scarce mention was made by Crown Counsel or the Courts of the Indian Treatyright to hunt. In almost every case, there was a prosecution of an Indian person for unlawful hunting.

The issue was whether thatparticular act of hunting or practice of hunting, was a protected and lawful by reason of paragraph 12 of the NRTA. If the right to huntwas protected under clause 12, an acquittal inevitably followed. If it was not protected, then the Indian person was bound by theprovincial game laws and a conviction inevitably followed.

There were cases involving night hunting, shooting from the side of theroad, hunting in forest reserves, hunting in game preserves and road corridor game preserves and other cases involving whether theIndian hunter was on unoccupied Crown lands or lands to which he had a right of access. [24] As mentioned, throughout these cases, scarce mention was made of the old Indian treaty right to hunt. The emphasis wasplaced upon the right as stated in paragraph 12 of the NRTA. Indian persons bristled at the mention of the NRTA right to hunt, and thelack of emphasis upon treaty.

They said treaty was a special bargain reached between Indian peoples and Her Majesty. They questionedhow governments could reach an agreement, as between themselves, modifying or varying the treaty bargains. They questioned howthis could happen without any consultation with Indian peoples. [25] I have no way of knowing, but suspect that Chief Justice Dickson was, at least in part, speaking to the debate as to whether thehunting right was a treaty granted right, or existed pursuant to paragraph 12 of the Natural Resources Transfer Agreement.

In R v Frank (SCC), [1978] 1 SCR 95, he stated: It would appear that the overall purpose of para. 12 of the Natural Resources Transfer Agreement was to effect a merger andconsolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to restate and reassure to thetreaty Indians the continued enjoyment of the right to hunt and fish for food.

The Court went on to hold that a Treaty 6 Indian resident in Saskatchewan, was lawfully entitled to hunt in Alberta as he was hunting forfood and was an Indian “within the boundaries” of the province of Alberta as required by paragraph 12. [26] In the case of R v Badger (SCC), [1996] 1 SCR 771 the Court returned to discuss the origin of the huntingright. Justices Sopinka and Lamer were of the view that there was a merger of the hunting rights in paragraph 12 of the NRTA. Themajority decision written by Mr.

Justice Cory said that the Treaty 8 hunting right had not been extinguished, although it had beenmodified by paragraph 12 of the NRTA. It is difficult to ascertain however, what the practical effect of the distinction on this issue is, asthe majority and minority reached the same conclusion.

[ 27 ] It would seem to me that through most of the history since the passing of the NRTA , the courts have determined whether an Indian was lawfully entitled to hunt or could be prosecuted for provincial offence, on the basis of an

interpretation of paragraph 12 of the NRTA , and whether the Indian person involved had brought himself under that umbrella. The Arguments of Counsel in this Case [ 28 ] This case comes on the heels of R v Pierone , 2018 SKCA 30 .

The arguments made by counsel in that case and in this case represent a dramatic turnabout from the traditional positions taken by counsel in such cases. (In the Pierone case, the Court of Appeal declined to deal with the arguments or issues as the accused was lawfully hunting on private lands to which he had a right of access). [ 29 ] In most cases until now, the accused Native hunter asserted a treaty right to hunt.

The Crown then raised paragraph 12 of the NRTA , and made arguments that the Native hunter had not brought himself under the protective umbrella of paragraph 12. [ 30 ] This case represents a rather dramatic turnabout in that Defence Counsel made little mention of the treaties, or the treaty right to hunt. Rather, counsel for the accused used paragraph 12 of the NRTA as his starting point or launching pad. Counsel for the accused argued that I should simply read and interpret paragraph 12 of the NRTA .

I should apply the ordinary meaning of the words in that section, and determine that they are Indians within the boundaries of the province of Saskatchewan, hunting for food, and thus are under the protective umbrella of paragraph 12. [ 31 ] The Crown, now raises the issue of the extent of the accused’s treaty hunting right. The Crown asserts the purpose of paragraph 12 of the NRTA was to preserve and protect the Indians’ treaty hunting rights. As a result, if these accused did not have a prior existing treaty right to hunt in Saskatchewan, they cannot claim the right to hunt under paragraph 12 of the NRTA. Mr.

Fyfe argued that the purpose of paragraphs 10 to 12 was the recognition and protection of treaty rights, and I should use a purposive analysis and

interpretation of paragraph 12 to restrict its function now. He repeatedly asked why would Saskatchewan agree to grant all Indian persons, not just treaty Indians, a right to hunt in Saskatchewan. Analysis The Ordinary Meaning of Paragraph 12 [ 32 ] In making his argument, Crown counsel placed considerable emphasis on the heading “Indian Reserves” in the NRTA . This heading appears immediately before paragraph 10. Paragraphs 10 and 11 deal with Indian reserve lands.

Clearly the intent of these sections is to recognize reserves that have been established, exempt those reserves from the general transfer provisions, and leave the reserves under the control of the Federal Crown and the Department of Indian Affairs. Under the same “Indian Reserves” heading and immediately after paragraphs 10 and 11 is paragraph 12.

As a result, counsel says that governments must have intended to protect the treaty right to hunt by paragraph 12, and if there was no treaty right to hunt, paragraph 12 would have little application. [ 33 ] The problem I have with this argument is the wording of paragraphs 10 and 12 are very different. Paragraph 10 speaks of the transfer of lands “necessary to enable Canada to fulfil its obligations under the treaties with the Indians . . .”. However, paragraph 12 makes no mention of treaties or treaty Indians.

It would seem to me that Canada was very mindful and knowledgeable of the fact that not all Indians were treaty Indians. Not all Indians had a treaty right to hunt. There is nothing in the ordinary language used in paragraph 12 that would lead me to conclude that the governments intended that it should apply only to treaty Indians. [ 34 ] While it is not a hard and fast rule, there is a general presumption that governments intend, through legislation, to convey the same meaning through the use of the same words, and to convey a different meaning through the use of different words. See Ruth Sullivan on Statutory

Interpretation , Third edition, at p 147. It would seem to me that if government intended that paragraph 12 be restricted in its application to treaty Indians, it would have clearly stated so. Paragraph 12 states that “Indians shall have the right . . .”. These accused are clearly Indian persons that come within the ordinary meaning of that section. [ 35 ] In my view, the Supreme Court of Canada decision in R v Frank , supra , supports the accuseds’ argument in this case. The Frank case dealt with a Treaty 6 Indian. Treaty 6 covers a large portion of the central parts of Alberta and Saskatchewan. The accused

was normally resident in Saskatchewan and a member of a Saskatchewan First Nation. He shot a moose while in Treaty 6 territorywithin the province of Alberta. The unanimous decision written by Mr. Justice Dickson stated: The debate in the Courts below centered upon the

interpretation of para. 12 of the Natural Resources Transfer Agreement. The Crowncontended that the phrases “Indians of the province” and “Indians within the boundaries thereof” meant one and the same thing, namely,“Indians resident in the Province” for whom, according to the words of the paragraph, it was sought to secure “continuance of the supplyof game and fish for their support and maintenance.” It was contended that the words “the said Indians” related to resident Indians onlyand it was to such Indians that the rights of hunting were accorded. Provincial Court Judge Shamchuk rejected that argument.

He heldthat “Indians within the boundaries” should not be restricted to resident Alberta Indians, but must extend to any Indian physically withinthe boundaries of Alberta no matter where his residence . . . I do not think “Indians of the province” and “Indians within the boundaries thereof” refer to the same group. The use of differentlanguage suggests different groups. In my view, “Indians of the province” means Alberta Indians.

The words “Indians within theboundaries”, on the other hand, refer to a larger group, namely, Indians who, at any particular moment happen to be found within theboundaries of the province of Alberta, irrespective of a normal residence. All persons forming part of this latter group are subject to thegame laws in force at any given time in that Province but with the right of hunting, trapping and fishing game and fish for food at allseasons of the year on unoccupied Crown lands and on any other lands to which the Indians may have a right of access.

The words“Indians within the boundaries” means all Indians within the boundaries of Alberta, and not just some of the Indians within suchboundaries. [Emphasis added] In this case, Crown counsel argued that Mr. Frank was a Treaty 6 Indian who was entitled to hunt throughout the entire Treaty 6 area andthat was the basis of the Court’s decision. However, I do not see this restrictive

interpretation in the passages quoted. Rather, I see anordinary meaning interpretative approach and a statement as a matter of law that an out of province Indian was entitled to hunt for foodunder paragraph 12 of the Alberta NRTA. In my view, these dicta clearly support the accuseds’ argument in this case. The Crown’s Purposive

Interpretation Argument [36] For the reasons enunciated below, I cannot accept the Crown’s purposive

interpretation argument. [37] Firstly, the Supreme Court has on many occasions enunciated a series of principles of

interpretation for treaties. See forexample R v Badger, supra, at para 41. The courts have said that treaty promises should be interpreted in the way in which Indiansunderstood them. Further, that any ambiguity or doubtful expression in the wording of the treaty must be resolved in favour of theIndians. In R v Sutherland, supra, the Court dealt with the

interpretation of The Natural Resources Transfer Agreement. The Courtstated: If there is any ambiguity in the phrase “right of access” in paragraph 13 of the Memorandum of Agreement, the phrase should beinterpreted so as to resolve any doubts in favour of the Indians, the beneficiaries of the rights assured by the paragraph.

Any attempt toconstrue “access” in limited terms as, for example, to hunt the particular type of game which non-Indians could legally hunt at the timewould, it seems to me, run counter to the authorities to which I have referred and so dilute the word “access” as to make meaningless theassurance embodied in the proviso to para. 13. [38] As a result of the above, both the Treaty and the NRTA are to be liberally construed in favour of the Indians. The effect of theCrown argument is that we should use the provisions of the treaty to bring about a more restrictive

interpretation of the NRTA right tohunt. It seems to me this runs directly counter to the above-mentioned interpretative principles. [39] I would also suggest that the purposive

interpretation argument made by the Crown goes too far and would effectively resultin the re-drafting of the legislation. In Sullivan on Statutory

Interpretation, Third edition, on page 202, the author states: Purpose may be used not only to resolve doubt or ambiguity but also to “create” it, or more precisely to reveal the presence of aninterpretive problem. When the ordinary meaning of a provision appears to be clear but conflicts with the legislature’s apparent purpose,there is work to be done. An

interpretation must be sought that accords with the purpose without imposing too great a strain on the text. She cites Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para. 47 as authority for this proposition. In R v Z (DA), (SCC), [1992] 2 SCR, 1025 at 1042, Lamer C.J. wrote:

In interpreting . . .

an Act, the express words used by parliament must be interpreted not only in their ordinary sense but also in thecontext of the scheme and the purpose of the legislation. . . . The Court of Appeal properly proceeded on this basis when it stated that the best approach to the

interpretation of words in a statute is toplace upon them the meaning that best fits the object of the statute, provided that the words themselves can reasonably bear thatconstruction. In University of British Columbia v. Berg, (SCC), [1993] 2 SCR 353, at 371, Lamer C.J. wrote: This… does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words of s. 3, that some relationships will not besubject to scrutiny under human rights legislation.

It is the duty of boards and courts to give s. 3 a liberal and purposive construction,without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature. [40] I take all of this to mean that a purposive

interpretation of legislation is both important and very useful. However, thepurposive

interpretation is used to interpret the actual wording of the legislative document. One should be careful not to go too far anduse a purpose to re-craft the entirety of the legislation. In the Crown’s argument, they conclude that Indians that are resident within theprovince of Saskatchewan and within the boundaries of Treaties 2, 4, 5, 6, 7, 8 or 10 have the right to hunt throughout the Province ofSaskatchewan pursuant to paragraph 12 of the NRTA.

The Crown also concludes that any Indian person not residing withinSaskatchewan but, provided that Indian person resides within the territories for Treaties 2, 4, 5, 6, 7, 8 or 10 may also hunt anywherewithin the Province of Saskatchewan, pursuant to paragraph 12 of the NRTA. With the greatest of respect, this

interpretation bears norelationship to the wording of paragraph 12 of the NRTA. With the greatest of respect, the Crown has gone too far and used its purposiveinterpretation approach to entirely re-craft and re-draft paragraph 12 of the NRTA. The

Article “The Forgotten Constitution: The Natural Resources Transfer Agreements and Indian Livelihood Rights, ca. 1925 to 1933” [41] During the course of researching for this judgment, I was referred to this article. It appears in the Alberta Law Review (2004)41:4, page 999. The

article was written by Dr. Frank J. Tough, a professor of the School of Native Studies at the University of Alberta. In the article, Dr. Tough points out that the three prairie provinces were pursuing these agreements for approximately 20 years beforethey were finally executed. He notes that in 1926, a draft agreement was reached between Alberta and Canada on the transfer of naturalresources to that government. However, the government of Mackenzie King fell in June 1926 and the legislation died on the orderpaper. At p. 1024, he quotes clause number 9 from that draft agreement as follows: 9.

To all Indians who may be entitled to the benefit of any treaty between the Crown and any band or any bands of Indians, wherebysuch Indians surrendered to the Crown any lands now included within the boundaries of the province, the province hereby assures theright to hunt and fish on all the unoccupied Crown lands administered by the province hereunder as fully and freely as such Indiansmight have been permitted to so, hunt and fish if the said lands had continued to be administered by the Government of Canada. In my view, this quote has an impact on the case at bar.

The quoted passage is or was almost perfectly drafted for the interpretativeargument advanced by Crown counsel in this case. It links the whole aspect of the treaty hunting rights, and effectively says that onlytreaty Indians from treaty territories partly within Saskatchewan boundaries, will have and enjoy the broader right to hunt conveyed bythe NRTA. [42] However, this provision did not become a part of the final NRTA in any of the prairie provinces. Rather, the clause isredrafted and refined to meet the exact form of paragraphs 12 in the Alberta and Saskatchewan agreements and 13 of the Manitobaagreement.

It would seem to me to be obvious that by redrafting the agreement to its present form, the drafters intended to change theinterpretation and meaning and advance a different

interpretation and meaning than was conveyed in 1926. [43] Dr. Tough goes on to quote from letters and argues that Duncan Campbell Scott, the Deputy Superintendent General of IndianAffairs, was instrumental and the guiding force in redrafting this provision. As the Deputy Superintendent General of Indian Affairs,Duncan Campbell Scott was the highest ranking civil servant within the Department, who answered directly to the Minister. Dr. Toughargues that the Deputy Superintendent General of Indian Affairs was well aware of the distinction between treaty Indians and non-treatyIndians.

He and his department were not only responsible for treaty Indians, but were responsible for all Indian persons. Dr. Toughargues that Duncan Campbell Scott and those associated with him were successful in changing the clause to benefit all Indian persons asopposed to simply treaty Indians.

[ 44 ] If one accepts Dr. Tough’s analysis, one could revamp the purposive

interpretation to favour the accused in this case. One could argue that senior officials in the Department intended to draft a clause that would protect hunting for all Indian persons and this purposive

interpretation is much more consistent with the actual text of the paragraph. Is there an absurdity in the

interpretation advanced by the accused ? [ 45 ] Crown counsel argues that the defence

interpretation leads to absurd results. Why would the Province of Saskatchewan agree to extend hunting rights to a broad spectrum of Indian persons from outside of the province? They were seeking to preserve game and fish for the native populations, and did not intend to open up hunting for all Indian persons, which would have the logical effect of depleting the supply of game. I don’t agree that these absurdities appear. Firstly, it must be remembered that the National Resources Transfer Agreement resulted in a huge transfer of resources and funds that the province would benefit greatly from.

Saskatchewan and the other prairie provinces very much wanted to enter into these agreements. I doubt they saw the expansion of the native hunting rights as a huge concession or cost to the province, in relation to the benefits the Province received under the agreement. [ 46 ] Secondly, there is no evidence, even now, that we have a problem with a large number of native hunters entering to hunt within the province. In 1930, people were much less mobile than they are now. It seems to me that this just wasn’t a big problem and certainly wasn’t something that one would allow to stand in the way of the deal.

Conclusion [ 47 ] For all of the above-mentioned reasons, I have reached the conclusion that paragraph 12 of the Saskatchewan NRTA should be interpreted according to its ordinary meaning. The language of that paragraph speaks to Indian persons within the province of Saskatchewan having the right to hunt for food on all unoccupied Crown lands to which they have a right of access. These accused are clearly Indian persons. The Crown has conceded they were hunting for food and that Indian persons had a right of access to these lands to hunt for food.

As a result, these accused persons were exercising a constitutional right granted to them pursuant to paragraph 12 of the Natural Resources Transfer Agreement . The provisions of The Wildlife Act were not applicable to them and they must be found not guilty of the charges. [ 48 ] Lastly, I express my thanks to both counsel for very comprehensive submissions in a very interesting case. [ 49 ] Dated at the City of Regina, this 31 st day of July, 2019. __________________________ D. Kovatch, J