Her Majesty the Queen - v. -, 2011 SKPC 166

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 166 Date: October 28, 2011 Information: 24163588, 24168333, 24164583 Location: North Battleford, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carlin Darcey Nordstrom Appearing: Inez Cardinal, Q.C. For the Crown R. James Fyfe For the Attorney General of Saskatchewan G. Rangi Jeerakathil For the Accused JUDGMENT D. J. KAISER , J 1 .

This case deals with esoteric regulatory issues surrounding the power or lack thereof of a First Nations person to possess, import into Saskatchewan, export from Saskatchewan or Canada, and transport elk or white-tailed deer or their parts where the animals were raised or kept in captive or domestic circumstances.

THE CHARGES 2 . Mr. Nordstrom is charged on three different informations with a total of 24 counts as follows: Information Number 24163588: Count #1 - On or about the 20th day of September, 2006, at or near North Battleford, in the Province of Saskatchewan, did without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal, contrary to section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #2 - On or about the 20th day of September, 2006, at or near North Battleford, in the Province of Saskatchewan, did without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to section 31(1) (

a) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Count #3 - On or about the 20th day of September, 2006, at or near North Battleford, in the Province of Saskatchewan, did without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal, contrary to section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #4 - On or about the 20th day of September, 2006, at or near North Battleford, in the Province of Saskatchewan, did without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to section 31(1) (

a) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Count #5 - On or about the 4th day of October, 2006, at or near North Battleford, in the Province of Saskatchewan, did without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal, contrary to section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #6 - On or about the 4th day of October, 2006, at or near North Battleford, in the Province of Saskatchewan, did without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to section 31(1) (

a) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Information Number 24168333: Count #1 - At Saskatoon, Saskatchewan, on or about the 14 th day of October, 2006, without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal, contrary to section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #2 - At Saskatoon, Saskatchewan, on or about the 14 th day of October, 2006, resist or willfully obstruct any person in the lawful execution of a process against goods or in making a lawful seizure, contrary to

section 129 (

c) of the Criminal Code of Canada , R.S.C. 1985, c. 46 . Count #3 - At Saskatoon, in the Province of Saskatchewan, on or about the 14 th day of October, 2006, without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to section 31(1) (

a) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Count #4 - At Battleford, in the Province of Saskatchewan, on or about the 30 th day of October, 2006, unlawfully transport animals from the Province of Alberta to the Province of Saskatchewan, without a permit, contrary to section 6(3) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #5 - At or near Battleford, in the Province of Saskatchewan, on or about the 30 th day of October, 2006, unlawfully transport from a province to another province any animal or any part or derivative of an animal where the animal was taken or where the animal or any part or derivative of the animal was possessed, distributed or transported in contravention of any provincial Act or regulation, contrary to section 7(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #6 - At or near Battleford, in the Province of Saskatchewan, on or about the 30 th day of October, 2006, knowingly possess an animal or any part or derivative of an animal that has been imported or transported in contravention of this Act, contrary to

section 8 (

a) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #7 - At or near Battleford, in the Province of Saskatchewan, on or about the 30 th day of October, 2006, knowingly possess an

Count #7 - At or near Battleford, in the Province of Saskatchewan, on or about the 30 th day of October, 2006, knowingly possess an animal or any part or derivative of an animal for the purpose of transporting it from one province to another province in contravention of this Act or exporting it from Canada in contravention of this Act, contrary to

section 8 (

b) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #8 - On or about October 30, 2006, at or near Battleford, in the Province of Saskatchewan, did without having first obtained an import licence issued pursuant to this Act or the regulations, import any wildlife into Saskatchewan, contrary to section 31(1) (

b) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Count #9 - At or near Battleford, in the Province of Saskatchewan, on or about the 27 th day of November, 2006, without a permit issued by a competent authority in Saskatchewan, unlawfully transport any animal or part or derivative of an animal from Saskatchewan to another province, contrary to section 7 (1) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #10 - At or near Battleford, in the Province of Saskatchewan, on or about the 27 th day of November, 2006, unlawfully transport from a province to another province any animal or any part or derivative of an animal where the animal was taken or where the animal or any part or derivative of the animal was possessed, distributed or transported in contravention of any provincial Act or regulation, contrary to section 7(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #11 - Near Osoyoos, British Columbia, on or about the 27 th day of November, 2006, without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal, contrary to section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52.

Count #12 - At or near Battleford, in the Province of Saskatchewan, on or about the 27th day of November, 2006, knowingly possess an animal or any part or derivative of an animal that has been imported or transported in contravention of this Act, contrary to

section 8 (

a) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #13 - At or near Battleford, in the Province of Saskatchewan, on or about the 27 th day of November, 2006, knowingly possess an animal or any part or derivative of an animal for the purpose of transporting it from one province to another province in contravention of this Act or exporting it from Canada in contravention of this Act, contrary to

section 8 (

b) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #14 - At or near Battleford, in the Province of Saskatchewan, on or about the 27th day of November, 2006, without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to section 31(1) (

a) of The Wildlife Act, 1998 , S.S.1998, c. W-13.12. Information Number 24164583: Count #1 - At Saskatoon, Saskatchewan, on or about the 14 th day of October, 2006, did furnish any false or misleading information or make any misrepresentation with respect to any matter in this Act, contrary to

section 11 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #2 - Near Osoyoos, British Columbia, on or about the 27 th day of November, 2006, did furnish any false or misleading information or make any misrepresentation with respect to any matter in this Act, contrary to

section 11 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #3 - At or near Battleford, Saskatchewan, on or about the 20 th day of September, 2006, did furnish any false or misleading information or make any misrepresentation with respect to any matter in this Act, contrary to

section 11 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Count #4 - At or near Battleford, Saskatchewan, on or about the 4 th day of October, 2006, did furnish any false or misleading information or make any misrepresentation with respect to any matter in this Act, contrary to

section 11 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , R.S.C. 1992, c.52. Henceforth, in this judgment the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, R.S.C. 1992, c.52, shall be referred to as “WAPPRIITA ” . 3 . The charges in this matter appear to be very complex and confusing. The appearance is not an illusion. However, the charges become slightly more understandable if they are categorized according to their offence dates.

The first offence date is the 20 th day of September 2006, and involves Counts 1, 2, 3 and 4 on Information number ending 3588, and Count 3 on Information ending 4583.

These charges pertain to an elk and a white-tailed deer shot by Darrel and Theresa Clark and the transportation of the resulting animal parts to the residence of Mr. and Mrs. Clark in the United States. 4 . The next group of charges arise on or about the 4 th day of October 2006, and involve Counts 5 and 6 on Information ending 3588 and Count 4 on Information ending 4583. These charges pertain to the shooting of a white-tailed deer by Mr. Frank Moore and the transportation of the ensuing animal parts to his home in the United States. 5 .

Next are the charges that are alleged to have occurred on the 14 th day of October 2006, which are Counts 1, 2, and 3 on Information ending 8333 and Count 1 on Information ending 4583. These charges arise in respect of five white-tailed deer and one elk, which were shot by a group of five individuals referred to in the evidence as the Kelley party. On October 14, 2006, they endeavoured to take the resulting antlers and hides back to the United States with them through the airport in Saskatoon. 6 .

The next group of charges are alleged to have occurred on the 30 th day of October 2006 and involve the importation of white- tailed deer from the Province of Alberta to the accused’s operation on the Poundmaker First Nation in Saskatchewan. They are Counts 4, 5, 6, 7 and 8 on Information ending 8333. 7 . The last group of charges arise with an alleged offence date of the 27 th day of November 2006, and are Counts 9, 10, 11, 12, 13 and 14 on Information ending 8333, and Count 2 on Information ending 4583. The alleged offence location varies on those charges.

Some are alleged to have happened at the district of Battleford, Saskatchewan, and some are alleged to have occurred at Osoyoos, British Columbia. These charges arise as a result of the efforts of Mr. Nordstrom to personally transport, and hence export, from Canada a large number of hides and antlers from Canada into the United States. 8 . Of the total twenty-four counts, seventeen are laid under WAPPRIITA , six are laid under The Wildlife Act, 1998 of Saskatchewan, and one is laid pursuant to the Criminal Code . BACKGROUND FACTS 9 . Mr.

Nordstrom, a status Treaty 6 Indian and member of the Poundmaker First Nation, was the sole shareholder and directing mind of Cree Nation Outfitters Ltd. During the relevant period (primarily, the fall of 2006), this corporation performed as an outfitter of free range wild animal hunts and fishing expeditions and operated an enclosed area hunting business. It is the latter operation, that is to say, the enclosed area hunting operation, sometimes called a hunt farm, that is of greatest relevance in this matter. For the most part, the clientele of this business were citizens of the United States of America. 10 .

The hunt farm was located on certain lands all of which are within Saskatchewan and are located south of Battleford. The lands upon which the animals were killed are the property of the Poundmaker First Nation. It is not entirely clear whether the lands are actual Reserve lands or Treaty land entitlement lands or a combination of both. At the Crown’s request, the Court will treat all of the land as Reserve land, in that this is the

interpretation most favourable to the accused. Mr. Nordstrom, largely at his own expense, but with the help of some grants and some financing, erected a high wire fence on and around these Reserve lands. Cree Nation Outfitters Ltd. or Mr. Nordstrom had purchased private land a few kilometres away from the fenced area and on that land erected a lodge. Mr. Nordstrom lived in the lodge and the lodge was also used to provide accommodations, meals and hospitality for the clients of the hunt farm operation. 11 . Mr.

Nordstrom promoted the business by attending wildlife meetings and shows in various places, particularly in the United States. He also advertised in these circles, had a website promoting the operation and had a number of booking agents operating in the United States. Clients would contract with Cree Nation Outfitters for the privilege of hunting on the hunt farm property and shooting one or more white-tailed deer or elk having antlers of a particular size. The contract price was in large part determined by the size of the antlers of the animal that the client was authorized to kill. 12 .

Cree Nation Outfitters purchased elk and white-tailed deer from properly licenced domestic game farm operators both within and outside of Saskatchewan. It is the evidence of Mr. Nordstrom that few, if any, of the elk came from outside of the province, and that

none of the elk in 2006 came from outside of the province. Nothing contradicts that evidence and I accept that evidence as true. All of these animals had been bred, born and raised in these licenced captive environments. Typically, the seller of the animal physically transported the animal to the Cree Nation Outfitters hunt farm, where the animal was released into the fenced area. Cree Nation Outfitters did not raise or breed any animals; and did not over winter any animals. The sole purpose of releasing these animals onto these lands was to provide game for the clients to shoot.

For the most part, the purchased animals were male, in that the antlers were the prize. On occasion, Mr. Nordstrom stocked a few does to make the environment seem more natural. Typically an individual male animal would exist in the fenced area for anywhere between one and thirty days, before being killed. 13 . The client hunter was escorted onto the fenced lands by an employee of Cree Nation Outfitters, sometimes referred to as a guide, who would be with the client throughout the process of harvesting the animal. The client, with the assistance of the guide, would locate one of the stocked animals.

The animal would be identified through its tag and by its antlers. If the animal had antlers in the agreed upon range, the client would be allowed to shoot it. Photographs would be taken of the client along with the slain animal. Any visible tags were removed from the animal before the photographs so that it was less obvious that it was a domestic game farm animal. These tags were not put back onto the animal.

The employees of Cree Nation Outfitters would then load the carcass onto a truck and take it to another location within the fenced area, where it was field dressed, which is a polite term meaning removal of internal organs. The carcass was then removed from the fenced Reserve land to the privately owned land where the lodge was located. There the employees further cleaned and skinned the animal, and the antlers were removed and otherwise processed for purposes of transport to the client’s home.

Generally, the client would take the antlers and some or all of the hide and sometimes the meat with them back to the United States. On some occasions, Cree Nation Outfitters would ship some or all of these items to the client or to a taxidermist. In many instances the clients were not interested in the meat, and the evidence is that in those instances Mr. Nordstrom would use some of the meat for meals at the lodge and distribute the remainder to aboriginal people on the nearby Mosquito First Nation. . 14 .

Generally speaking, hunt farms in Saskatchewan are operated pursuant to a domestic game farm licence issued pursuant to the Domestic Game Farm Animals Regulations made pursuant to the authority in The Animal Products Act . Mr. Nordstrom’s operation was an exception, in that he did not hold such a licence. Mr. Nordstrom was aware that it was possible for him to hold a provincially issued licence even though he operated on Reserve. His evidence was that he chose not to become provincially registered because he wanted to exercise what he perceived to be a Treaty right to carry on such an operation.

Instead, he purported to operate under the authority of one or more By-laws, made by the Poundmaker First Nation, pursuant to s. 81 of the Indian Act . Both the Department of Saskatchewan Agriculture, Food and Rural Revitalization ( hereinafter referred to as SAFRR), which administers The Animal Products, and Saskatchewan Environment (hereinafter referred to as SE), which administers The Wildlife Act, 1998 , held and still hold the view that a suitable By-law can provide legitimate and lawful authority to operate a game farm on Reserve land, without a provincially issued licence.

However, in the view of both departments, the By-law authorizing the operation of the domestic game farm must be a comprehensive By-law that requires the game farm operator to meet certain standards, which for the most part, are equivalent to the regulations governing provincially licenced game farms. Further, both departments take the view that the operator must operate within those requirements, including and especially with respect to the importing of animals.

Again, in their view, if an appropriate By-law is not in place, or if the operator fails to operate within the stated requirements, the operator is not entitled to import or export domestic game farm animals or their products, whether by permit or otherwise. On the other hand, if there is an appropriate By-law and if the requirements are met by the operator, that person is entitled to the same permits and powers as any other domestic game farmer. It should perhaps be added that these views are largely academic in that there have been very few such operations. 15 .

Entered into evidence as part of Exhibit P-17 was a copy of a letter dated October 16, 2002, directed to Mr. Nordstrom from Mr. Don Farrer, P. Eng., Director of Inspections and Regulatory Management Branch of SAFRR. This letter set out the province’s view of the requirements that Mr. Nordstrom would have to meet as he began his hunt farm operations.

It reads, in part: A domestic game farm license is not required if the animals are confined on land with full Indian Reserve status and if there is specific permission from the Band along with a comprehensive Indian Band by-law in place that relates to the operation of domestic game farms. To protect both your domestic herd, free-ranging wild deer and elk and provincially licensed domestic game farms, the by-laws should require, at least, the following: 1. An eight-foot high perimeter fence to prevent escapes of farmed deer and elk, and to prevent the entry of wild free-ranging deer and elk; 2.

Removal of all free-ranging wildlife prior to stocking the fenced area with farmed deer and elk; 3. Maintenance of unique animal identification tags (provincial tag plus one other tag) of all farmed deer and elk moved to the farm; 4. Submission of the heads, including ear tags, from all animal deaths (either died or harvested on-farm) to Prairie Diagnostic Services, University of Saskatchewan, Saskatoon, for Chronic Wasting Disease testing; and

5. Tagging of product(

s) from animals harvested on the farm in order to distinguish domestic game farm animal products from free- ranging wildlife. (i.e. Use different seals than used for your outfitting operation.) Please realize that movement of live animals from the fenced area may be restricted due to federal or provincial requirements, or both. Also, the importation of domestic game farm animals from outside Saskatchewan requires provincial approval. The numbered paragraphs and the importing reference are a good

summary of the requirements set out in The Domestic Game Farm Animal Regulations , which Regulations will be dealt with more fully and frequently hereafter. Notably absent in the letter is any reference to the exporting of products such as antlers, hides and meat. In due course, I will deal with the question of whether or not the By-laws and Mr. Nordstrom met this standard. FACTS RELATIVE TO SPECIFIC OCCURRENCES OR ISSUES I. On or about the 20 th day of September 2006 . 16 .

As indicated above, this date pertains to Counts 1, 2, 3 and 4 on Information number ending 3588, and Count 3 on Information ending 4583 and relates to the elk and the white-tailed deer shot by Darrel and Theresa Clark, respectively. Mr. and Mrs. Clark booked their hunts with Mr. Nordstrom through an agent in their home state of Alabama. They paid a deposit of $1,000.00 through the agent and expected to pay a further $5,500.00 directly to Mr. Nordstrom. They drove from Alabama to Saskatchewan and arrived on Sunday, September 17 th . On September 18 th , Mr. Clark shot an elk and on September 19 th , Mrs.

Clark shot a white-tailed deer, all of which took place within an area contained by a high fence. Both animals were field dressed within the fenced area, and then were removed to the area of the lodge, where they were skinned, the meat was placed in coolers and the antlers were separated from the rest of the carcass. Mr. Clark remained in close proximity to all of these operations. They left for their home with the meat, some of the hide and both sets of antlers on September 20 th . 17 . Mr.

Clark testified that he had not been given any licence or other documents until very shortly before their departure on the morning of the 20 th . That morning he prepared to pay Mr. Nordstrom for the remainder of the agreed upon price, which he expected to be a further $5,500.00. Instead, Mr. Nordstrom told him it was a further $5,900.00, consisting of $5,500.00 being the unpaid cost of the hunts and $200.00 for each of the two licences. He was not expecting the further $400.00 cost, but paid it anyway through one cheque for $5,900.00. Mr.

Nordstrom then went through the process of issuing them licences, which included the licence, horn or antler seals and a meat seal. Mr. and Mrs. Clark filled out their portion of the licences and signed them. There is no direct evidence as to the room where this happened except that it was Mr. Nordstrom’s desk. After the issuing of the licence, Mr. Nordstrom told Mr. Clark to keep the meat seal with the meat to get it across the border. Mr. Clark personally placed the antler seals on the two sets of antlers and loaded the antlers into his truck. They then drove away. At the time of giving his testimony, Mr.

Clark had with him a part of the licence that had been issued to him, and it clearly stated that the licence was a Waterhen First Nation licence. He no longer had any part of his wife’s licence, or any copy of it. 18 . Mr. Nordstrom denies that he issued the licences to Mr. and Mrs. Clark and takes issue with the evidence that they were not issued until well after the hunt in question. His evidence was that it must have been one of his employees who somehow got into the wrong licences, and that he personally had no part of this. II. On or about the 4 th day of October 2006. 19 .

This date pertains to Counts 5 and 6 on Information ending 3588 and Count 4 on Information ending 4583 and relates to a white- tailed deer shot by Mr. Frank Moore. Mr. Moore met Mr. Nordstrom at a meeting of the Safari Club International in California, booked a hunt with him and paid a deposit of $2,000.00. Mr. Moore and his spouse (who did not hunt), travelled by automobile from their home in California, eventually arriving at Mr. Nordstrom’s lodge late in September of 2006. After arriving, he paid Mr.

Nordstrom a further $5,750.00, which he understood to be $5,000.00 for the animal, the hunting, and the accommodations, $350.00 for the licence, and $400.00 for GST. On October 1 st and 2 nd , he hunted behind a high fence (accompanied by a guide) and, on the last of those days, shot a large white-tailed deer buck. A tag was removed from its ear and photographs were taken. The carcass was then removed to the area of the lodge where it was skinned. At that time, the guide took out a book of licences, and Mr. Moore signed it. It appears that the pertinent information may have been entered in advance. Mr.

Nordstrom was present during the skinning and the issuing of the licence. The licence consisted of the licence itself, and three attached tags, being the antler tag, the hide tag, and the meat tag. All four items had

the name “Waterhen First Nation” on them. While still in the skinning shed, the guide removed the antler tag and placed it on the antlers. The meat was packed in a cooler. In due course Mr. Moore and his wife drove back to their home in California taking a portion of the meat, a portion of the hide and the antlers with them. The travelled west into Alberta and then south into the United States. It would appear that they crossed back into the United States on October 4, 2006. Mr. Moore used the tags and licence that he had received to cross the border with the animal parts. These were accepted without incident.

III. On or about the 14 th day of October 2006. 20 . This date pertains to Counts 1, 2, and 3 on Information ending 8333 and Count 1 on Information ending 4583. These charges arise in respect of five white-tailed deer and one elk, which were shot by the group referred to in the evidence as the Kelley party. This group consisted of Mr. Mike Kelley (who testified in the trial), his 17 year old son, Mr. Michael Kelley, Jr., Mr. Lou Zoerb, Mr. Jesse Hammen, and Mr. Greg Lamb. All were from Florida.

They travelled by commercial aircraft from Florida to Saskatoon, where they rented a vehicle and drove to the Cree Nation Outfitters lodge. On the day of their arrival, Mr. Nordstrom personally issued a hunting licence to each of them, at a cost of $150.00 each, which sums were paid to Mr. Nordstrom at the time of issue. This took place in the living room of Mr. Nordstrom’s lodge. Each person signed their licence. While the witness, Mr. Kelley did not appear to be aware of it, each licence was for the Waterhen First Nation. 21 . The cost of each of these hunts were to be in the range of $3,500.00.

A deposit was paid in advance and the remaining funds were paid by cheque near the time of departure. Given that which ensued, the hunters placed stop payments on these cheques and full payment was never received by Mr. Nordstrom. 22 . In due course each of the five of them shot a white-tailed deer and, Mr. Zoerb additionally shot an elk. All of the hunting took place behind a high fence. Mr. Kelley and his son hunted together and each killed a deer with the other present.

The existing ear tags were removed from the deer, photographs were taken, and the staff removed the deer to the skinning shed where the antler seals were applied. Mr. Kelley was also present when Mr. Zoerb shot a deer. A similar process ensued. He could say little about the hunting by the others as he was not present when those kills took place. 23 . On October 24, 2006, each member of the Kelley party travelled to the Saskatoon airport along with the antlers and capes or hides intending to return with those items to their homes in the United States. It does not appear that they took the meat.

Wildlife Officers approached them while they were standing in line waiting to check in for their flight. Each had with them the antlers and capes. Each produced the licences that Mr. Nordstrom had issued to them. The officers asked them where they had hunted and with whom. Mr. Kelley advised them that they had hunted at Cree Nation Outfitters area with Mr. Nordstrom behind a high wire fence. The officers informed them that they had improper licences, and seized the licences, the antlers and the capes. They were told that each of them would be charged with hunting without appropriate licences. Mr.

Kelley believed that they might be put in jail. 24 . At that point Mr. Kelley telephoned Mr. Nordstrom and told him what was going on and what they had told the officers. Mr. Nordstrom was very upset and said he would come right there and get things straightened out. He soon arrived at the airport and a considerable scene ensued, complete with shouting and profanity. Mr. Nordstrom approached the officers and challenged them as to their authority to deal with the matter in any way.

He expressed the view that they were only provincial officers and therefore had no authority and certainly did not have authority in this matter because he himself was an Indian and the hunting took place on First Nations land. The officers did not agree with his view as to who had what authority. The officers had already seized the capes and antlers and had placed them in a pile by the wall. Mr. Nordstrom took hold of one of the boxes containing a set of antlers and began to move away with it. Officer Zimmer gabbed the other end of the box and a brief tug of war ensued.

Eventually, a member of the Saskatoon City Police was summoned, and eventually Mr. Nordstrom left. Each of the Kelley party was charged with exporting wildlife from Saskatchewan without a licence, contrary to s. 31(1) (

a) of The Wildlife Act , 1998 and each left on the aircraft, with their firearms. The capes and antlers remained in Saskatchewan pursuant to the seizure by the Wildlife Officers. Mr. Kelley and his son each paid their fines of $960.00 in due course. There is no direct evidence as to what the other three members of the Kelley party did. IV. On or about the 30 th day of October 2006. 25 . The evidence in this case is that during the month of October of 2006, Mr. Nordstrom acquired two live white-tailed deer from a licenced game farm operating near Olds, Alberta, and imported them into Saskatchewan. The particular evidence is Exhibit P-2, being a

certified true copy of a Canadian Food Inspection Agency Transportation Permit, showing the subject deer, P-3, being certified true copies of two Deer Inventory Certificates issued by Alberta Agriculture, and showing that the subject animals were sold and delivered to Cree Nation Outfitters of Battleford, Saskatchewan as of October 9, 2006, the evidence of Officers Haugen and Grisdale to the effect that they examined deer hides seized from Mr. Nordstrom near Osoyoos, British Columbia and found on those hides tags identifying them as these two animals, and Exhibit P-1, Tabs C-4 and C-6.

In my view the evidence as to the exact date of this sale and delivery is not clear. P-2, being the Transportation Permit, was issued on October 10 th and P-3, being the Deer Inventory Certificates, contains a statement that the animals were sold to a new owner and delivered to that owner effective October 9,2006. However, I note that P-3 was not signed by the seller until October 30, 2006. I am amending the date portion of each count to read “...between the 9 th day and 30 th day of October, 2006...”. This amendment is made in order to conform to the evidence as per

section 601 of the Criminal Code . V. The Osoyoos shipment. 26 . On August 28 or 29, 2006, Geoff Smith, his life long friend, Tom Wagamon, Tom’s 15 year old twin sons, Clayton Wagamon and Jay Wagamon, and Tom’s father-in-law, Howard Hawkins, known to most as “Butch” Hawkins, all arrived at Mr. Nordstrom’s lodge for a pre-booked elk hunt. The five of them had flown from their home state of Minnesota to Saskatoon where they rented a vehicle and travelled to Mr. Nordstrom’s property. They hunted for a total of four days, leaving for home on September 4, 2006. Each of them shot an elk during this period.

The elk were cleaned and skinned in the same way as the other animals. The antlers were removed for trophy purposes. 27 . Mr. Smith was the only one of the five hunters to testify. He testified that no hunting licence or seal of any kind went on any of the antlers, hides or meat. His evidence was that no hunting licence of any kind was issued to them until just before they were to leave. Mr. Nordstrom personally met with them in the dining area of the lodge and produced a book of licences. Mr. Smith was the first to sit down with Mr. Nordstrom. Mr.

Smith filled in the form, and then signed the licence, the antler seal, the hide seal and the meat seal. Next Tom Wagamon sat down with Mr. Nordstrom and did the same thing. Next Butch Hawkins did the same, and then the two twins. Mr. Smith seemed unsure of the order in which the twin boys completed their licence forms. The licences and the seals were all left in the book with Mr. Nordstrom. The hunters did not ever take physical possession of the licences or seals. After completion of this process, Mr. Smith gave Mr. Nordstrom cheques to cover the unpaid monies for the hunts.

The total paid was somewhere between $25,000.00 and $26,000.00. Mr. Nordstrom then informed the hunters that they would not be able to take their trophies with them, as he had not yet been able to obtain the necessary export permit. He said that he would forward their trophies at his expense, when the export permits became available. While the Smith party were not happy with this, there was nothing that they could do about it. They left without their trophies and have never received them. 28 .

The meat from three and a quarter of the elk was transported by or on behalf of Cree Nation Outfitters to Diamond 7 Meats of Lloydminster, where it was processed, and then shipped to the Minneapolis Airport, where Mr. Smith picked it up. Inside one of the boxes of meat was a copy of the licence that he had completed in the living room of Mr. Nordstrom’s lodge. It purported to be a licence for the Waterhen First Nation and was licence 0101. Mr. Smith produced this document and it was marked P-7. 29 . Robert Lundquist, owner of Diamond 7 Meats gave evidence.

His evidence was that on September 4 or 5 of 2006, a woman delivered three and a quarter elk to his business for processing. It was known to him that this was the meat for the Geoff Smith party. He believed the woman to be an employee of Mr. Nordstrom’s. He received copies of five licences by facsimile from Mr. Nordstrom or his business. He sent one of them, being the Geoff Smith licence, with the meat to Minneapolis, after he had processed it. He kept the copies of the other four licences and produced them into evidence. They were marked as Exhibit P-5. All four were Waterhen First Nation licences.

The Tom Wagamon licence bore the number 0102, the licence in the name, Howard Hawkins, bore the number 0103, the licence in the name of Jay Wagamon bore the number 0104 and the licence in the name of Clayton Wagamon bore the number 0105. The copies of the licences showed that all licences and seals were signed and the seals remained attached to the corresponding licence. 30 . On November 27, 2006, at the border crossing into the United States near Osoyoos, British Columbia, Mr. Nordstrom attempted to move 36 hides and 37 sets of antlers or horns across the international border into the United States.

All items were seized along with related documents. The hides, antlers, horns and documents were all photographed and appear under the C Tab of Exhibit P-1. Among them were elk, white-tailed deer and mule deer hides and antlers and three buffalo (bison) hides and sets of horns. Documents purporting to be Poundmaker First Nation hunting licences and seals were the only hunting licence type documents. There were no Waterhen First Nation documents. In due course, SE Wildlife Officers went through the seized items and matched up animal parts that bore seals with hunting licences.

I am satisfied that they did so correctly and accurately. There were 11 instances of a white-tailed deer licence that had only the meat seal attached, which were matched to antlers and hides by way of attached antler and hide seals. There was a set of white-tailed deer antlers (C-5 of P-1) with an attached seal, but no licence or hide that matched the antler seal. There was a

set of antlers with seal and matching licence (C-11 of P-1) but no hide. The hide and meat seal were still attached to that licence. There were 18 elk hides, sets of antlers and licences that matched each other. There were three bison licences, hides and sets of horns that matched in the same way. There were two mule deer licences that had the hide and meat seal still attached along with two sets of mule deer antlers with the corresponding antler seals. There were two mule deer hides that did not have any seals attached. Each of those hides had a cardboard tag with writing on it attached.

One said “Clay Mule Deer” and a date, and the other said “Booger SC #2 Oct 15 th ”. There were no holes in the mule deer ears, indicating that neither had ever had an ear tag placed in it. There were no holes in the ears of two of the 11 white-tailed deer hides. There were no holes in the ears of 10 of the elk hides. There was one set of elk antlers (C- 34 of P-1) with no seal attached but with a cardboard tag that said “Elk No 2 Paul”. There was one elk hide (C-38 of P-1) with a seal, but without corresponding licence or antlers.

There was one elk hide (C-39 of P-1) that did not have a seal, but did have a cardboard tag attached that read “Elk No 3 John”. There was one white-tailed deer licence (C-42 0f P-1) in the name of Paul Portant, that still had the meat and hide seal attached and did not correspond to any of the hides or antlers. 31 . In the course of Mr. Geoffrey Smith’s testimony, Crown counsel asked him to look at certain of the photographs found under Tab C of P-1. He was able to identify all five sets of antlers that his party had taken. He had various other photographs that were taken during their time at Mr.

Nordstrom’s lodge, and he brought six of them to Court for purposes of giving his testimony. They were marked as Exhibit P-11. He used these photographs as an aid in identifying the antlers shown in P-1. I am satisfied that he correctly identified the antlers. 32 . The antlers of the elk that he shot were shown in C-16. The antlers had an attached antler seal purportedly issued by Poundmaker First Nation, bearing number 0678. There was a signature on the seal purporting to be that of Geoff Smith. Mr. Smith testified that this was not his signature.

There was also a Poundmaker licence bearing the same number and purporting to bear the signature of Geoff Smith. This was not his signature. The licence set out his name and street address correctly but incorrectly stated the name of the community in which he lives. The writing was not his. Attached to the licence was a meat seal, unsigned. Attached to a garbage bag of the kind that the hides had been placed in was a hide seal, also from Poundmaker and bearing the same number and a signature purporting to be Geoff Smith, which was not his signature. Mr.

Smith had never seen any of these documents and had never had anything to do with them. 33 . Mr. Smith went through the same process in respect of the photographs pertaining to the antlers of the animals shot by the other four members of the party. He went over the licences and seals corresponding to the number on the seal attached to the respective antlers. He was familiar with each of their signatures. With respect of each of the three Wagamons, all of the address and name information was accurate. However, he testified that none of the signatures were those of the people concerned.

The antlers of the animal shot by Howard “Butch” Hawkins presented greater discrepancies. The name on the licence showed as “Butch Nelson” rather than “Butch Hawkins” and the address shown was Dallas, Texas, when if fact Mr. Hawkins lived in Minnesota. The signatures were not those of Howard Hawkins. Clearly the person who completed that document was mistaken as to name and address, and obviously, a false signature had been affixed to the licence and the seals. I note that the numbers on the Poundmaker licences pertaining to the Smith party were anything but sequential. 34 . Mr.

Nordstrom denies that he issued the Waterhen First Nation licences or, in fact, any licences to the Smith party. His evidence is that the guides would have done this at the skinning shed and that he took no

part in these things. His evidence is that the seals would have been put on the antlers in the skinning shed during processing. 35 . Ms. Christy Robertson accompanied Mr. Nordstrom on the trip from Battleford that eventually landed them at the Osoyoos border crossing. She testified that on route she and Mr. Nordstrom made entries on these documents that were like the Poundmaker licences. She simply wrote down what he told her to write down. Based on Ms. Robertson’s evidence, it is clear that Mr. Nordstrom was operating from memory, for at least part of this process.

In such circumstances it is clear that some errors would occur. This would have been obvious to Mr. Nordstrom as well, and hence he would have known that some of the address and name information would have been incorrect. 36 . Further, and separate from the Smith party antlers and hides, some of the hides and antlers that Mr. Nordstrom attempted to export on that occasion were clearly from wild free range animals. There were two mule deer hides and two sets of mule deer antlers. The ears on the hides did not have any holes in them. Domestic game farm animals are required to have ear tags.

And ear tags leave holes. Mr. Nordstrom did not stock mule deer. In his evidence, Mr. Nordstrom acknowledged that these two sets of antlers were from free range mule deer. I find that these two sets of mule deer antlers were taken in free range hunts. 37 . There were no export permits of any kind with these animal parts. There was a letter from Poundmaker First Nation (P-9) headed “ WILD GAME HUNTING ”. The heading is in bold print and capital letters. The letter says that Mr. Nordstrom who is a member of Poundmaker Cree Nation is authorized to hunt big game and operate guiding operations on Poundmaker.

There were further documents being forms provided by the United States, none of which are relevant to lawful export from Canada. Obviously parts from domestic big

game animals were mixed with parts from free range big game animals, being at minimum the mule deer animal parts. The same documentation was used for both domestic game farm animals and free range wild animals. There was no tagging or labelling of any kind that would identify the hides or antlers concerned as between free range and domestic. VI. Credibility Finding with respect to Mr. Nordstrom ’s Evidence. 38 . Mr. Nordstrom denies issuing any of the Waterhen First Nation licences, for hunts on the Poundmaker First Nation Reserve.

His evidence is that the issuing of licences was always left up to the guides and that they did this in the processing area right after the carcass was taken to the skinning shed. It should perhaps be noted that the licences of both First Nations say on the seals that they are to be attached to the relevant part of the animal immediately after the animal is killed. Clearly this requirement was not being met. Mr. Nordstrom testified that he was too busy to get involved in the issuing of licences. He specifically denies that he issued licences to any of the groups mentioned in this judgment. 39 .

He testified that the reason that there were Waterhen licences present at his lodge is that he occasionally took hunters up to Waterhen First Nation to hunt, particularly for buffalo that they had at Waterhen. He had these licences in case he needed to take someone hunting there on a last minute basis and could not locate anyone to give him the necessary licences. His evidence was that outfitting and non-Indian hunting was going on during 2006 at Waterhen.

His explanation for how the Waterhen licences got issued to the Poundmaker hunters was that the guides must have somehow gotten into the wrong book of licences. No evidence was given as to how the books of licences were stored or controlled or accounted for at Mr. Nordstrom’s game farm. 40 . Sydney Joseph Fiddler, former Chief of the Waterhen First Nation, testified that he was Chief during 2006, and that in the years before 2006, they had been looking at doing outfitting on their Reserve. They passed a By-law approving this, and sent it in to Indian Affairs for registration, but Indian Affairs rejected it.

They had already ordered licences, and had signed up American hunters. They could not go ahead with the hunts. He believed that after 2006 a hunting By-law for Waterhen was passed. His evidence was largely corroborated by Exhibit D-1 which is a certified copy of a Waterhen hunting by-law. It is designated as By-law 3 2004 (suggesting it was given this number in 2004) but it shows that it was passed by Chief and Council on August 27, 2007, and the Certificate from Indian Affairs is dated in October of 2007. Mr. Fiddler was shown a number of the Waterhen licences referred to in this judgment.

He indicated that there is a location on the licences described as “Signature of Band Chief or Designated Band Official”, and that there is something written in that location that looks like a signature and reads “Sydney Fiddler” but that this is not his signature. His evidence is that he did not sign any licences. The Waterhen licences that he looked at had been issued to hunters hunting on Mr. Nordstrom’s Poundmaker hunt farm. Waterhen First Nation is some 200 kilometres north of Battleford. 41 . There is an obvious conflict between the evidence given by Mr.

Nordstrom and his clients about the issuing of licences. I found all of the clients to be good witnesses. These were very unusual events in their lives, and hence the kind of thing that tends to stick in the memory. As well, it was clear that most of these clients were quite impressed with Mr. Nordstrom, and hence were more likely to remember their interactions with them. 42 . I found Geoffrey Smith to be an especially strong witness. He testified in a very straightforward manner, and seemed to be of an independent disposition.

Aside from these demeanour characteristics of his evidence, there were details in the exhibits that tended to corroborate his evidence in important aspects of his evidence and that are in conflict with Mr. Nordstrom’s evidence. Mr. Smith carefully described the order in which the licences were filled out in the dining area of the Cree Nation Outfitters lodge in front of Mr. Nordstrom. He testified that the licences were in a book presented by Mr. Nordstrom.

At the time that he did this, he did not have before him, and had not seen Exhibit P-5, which contains the copies of the Waterhen licences for Tom Wagamon, Howard “Butch” Hawkins, and Jay and Clayton Wagamon. He did have in his possession a copy of the Waterhen First Nation licence in his name, because Mr. Lundquist of Diamond 7 Meats had placed that copy in one of the boxes of meat sent to the Minneapolis airport. The copy of his licence was made P-7. Mr. Smith was shown P-5. He identified the signatures as appearing to be genuine and verified the names and addresses.

The combination of P-7 and P-5 shows that the Geoffrey Smith’s Waterhen licence was licence 0101, Tom Wagamon’s licence was 0102, Howard Hawkins’ licence was 0103, Jay Wagamon’s licence was 0104 and Clayton Wagamon’s licence was 0105. One would expect that licence numbers in a book would be consecutively numbered, and hence if people completed them one after another, the numbers should be consecutive. They are consecutive. And further, they disclose an order of completion that is consistent with the order described by Mr. Smith. Mr.

Smith also testified that none of his party ever received the physical possession of the licences assigned to them at Cree Nation Outfitters, which is evidence I fully accept. Given this, Mr. Smith would not have had access to the Waterhen licences, or their numbers, except for his own before he was shown P-5. Thus Mr. Smith’s version of the events is corroborated by the licences.

43 . Mr. Nordstrom testified that the licences would have been issued at the skinning shed shortly after the animals were brought in. Mr. Smith testified as to the dates and order in which each of his party killed their respective elk. The numbering of the licences in no way corresponds to that order, and hence suggests that issuing did not happen as described by Mr. Nordstrom. 44 . Mr. Nordstrom testified that the guides would have removed the seals and applied them to the antlers at the time of issuing the licence. Mr.

Smith says this did not happen and that the seals were never removed from the licences and applied to the horns. P-5 and P- 7 which would have gone to Mr. Lundquist of Diamond 7 Meats, on September 4 th or 5 th , show that at the time that the licences were copied to go to him, the seals were not removed from the licences. 45 . Mr. Smith took photographs at the hunt farm, and six of these were made as exhibits. All of them show elk antlers. No seals are visible in any of the photographs. Two of the photographs are particularly telling. According to Mr.

Smith they were taken in front of the lodge the morning they were leaving. I note that this would have been near the time that he says that Waterhen licences were completed. One photograph shows the five members of the Smith party in shorts and t-shirts standing on a lawn with five sets of elk antlers, in front of a building that looks like a hunting lodge. Mr. Nordstrom and two children are sitting on the lawn in front of them. The Smith party are not wearing the kind of clothing one would associate with hunting, but are wearing the kind of light casual clothing one might choose to travel in.

The other photograph is a closer up image of the Smith party, in the same clothes, at the same location, each standing with a set of elk antlers. No seals are visible on the elk antlers. Mr. Smith testified that these were taken just before they left. Mr. Nordstrom was present, and would have to have noted the absence of antler seals. Again, this is completely consistent with Mr. Smith’s version of events, and inconsistent with Mr. Nordstrom’s. 46 . It is clear that in 2006, Mr. Nordstrom believed that SE was watching for him and intended to take enforcement action against him.

Incidentally, this belief was accurate. He had booked all of these American hunters and they had paid deposits. If Mr. Nordstrom did not go ahead with the hunts, his reputation would have been ruined and all of the goodwill he had built up over the preceding years would be lost. He was in a very difficult situation and I have no doubt that he was feeling a great deal of pressure. I am satisfied that, in the face of all of this, he made a conscious decision to try to avoid the scrutiny of SE by using licences that would not be associated with him, being the Waterhen First Nation licences.

I reject his evidence as to how the licences came to be issued. I find that his evidence in this respect cannot reasonably be true. I am convinced beyond a reasonable doubt that the Waterhen licences were issued in the manner described by Mr. Nordstrom’s clients. I am satisfied that he did so deliberately and with an intention to deceive SE officials and anyone else who might be monitoring his operation. 47 . I am convinced beyond a reasonable doubt that the Poundmaker First Nation licences and seals in respect of the five sets of elk antlers and hides originating from the Smith party, carried by Mr.

Nordstrom to the Osoyoos border crossing were false documents. They were false in some of their particulars and the entries shown thereon purporting to be the signature of the hunter concerned was not that of the hunter concerned and hence a false signature. Whoever filled in the Poundmaker documents, obviously had access to the Waterhen documents. For instance, the dates of birth are correct. The Waterhen document for Mr. Smith suffers from poor handwriting. The city of his residence is hard to read.

One could easily have misinterpreted it to be “Shileview” rather than “Shoreview”, which is where he resides. “Shileview” appears on the Poundmaker document. Clearly, the supposed Poundmaker licences had never been physically given to the persons to whom they were supposedly issued and none of the Smith party had ever seen them or even knew of them. The documents suggest that they are genuine hunting licences issued to the licensee, signed by the licensee, and possessed by the licensee at the time the animal concerned was taken. None of this was true, and Mr. Nordstrom knew that none of this was true.

He needed documents that said Poundmaker because he had a letter from Poundmaker First Nation (P-9) that he was using in support of his export from Canada and his import into the United States. The Poundmaker licences were created for the express purpose of deceiving officials on both sides of the border into believing that the animals were taken validly under these licences. They were created by Mr. Nordstrom or by persons under his direction. VII. The Band By-laws and the comparison of their terms to provincial requirements. 48 .

Poundmaker Cree Nation Band By-law number 5 was entered in evidence as Exhibit D-12. This By-law appears to have been originally passed on August 8, 2000. The By-law contains a statement that it is for “...the preservation, protection and management of fur-bearing animals and other game on reserve, matters ancillary thereto, and a penalty for the violation thereof;”. Subsection 81(1) of the Indian Act , R.S.C., 1985, c. I-5 provides that a Band may make By-laws for certain purposes, namely: (

o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve; (

q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and

(

r) the imposition on

summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section. Accordingly, the By-law, as originally passed, falls within the legislative competence of the Band. The By-law deals with the matter of who may hunt on the Reserve and of course recognizes that members of the Band may hunt without a permit.

It also provides that non- members, and who is at least 18 years old, may apply to Council for a permit to hunt on the Reserve and that if certain conditions are met, the Council may grant such a permit. A separate provision (section 7.5) provides that the Band may issue a special permit to a non- band member to hunt on Poundmaker Band lands under the supervision of trained Band outfitters and guides. The permit is not valid if it is not signed by the person to whom it was issued, (section 9) or if the date of expiry is omitted, removed or defaced (also

section 9). The person must have the permit on his person while hunting on Poundmaker Band lands (section 10.1). There is nothing in the original By-law that appears to contemplate domestic game farming. 49 . On August 19, 2002, Poundmaker First Nation passed Band Council Resolution number 38, which is part of Exhibit D-12. In it, Chief and Council state that they have decided to allow Mr. Nordstrom to carry on outfitting and game farming upon approximately 57 named quarter sections of Reserve land. Mr. Nordstrom is to pay $2,000.00 annually for this privilege. A clause states that Chief and Council expect Mr.

Nordstrom to comply with federal and provincial rules regarding “outfitting”. No mention is made of their expectations pertaining to “game farming” even though that phrase is used earlier and later in the document. All of the foregoing provisions begin with the word “Whereas”. It concludes with a resolution authorizing “...the usage of Reserve lands to Carlin Darcey Nordstrom for the purposes of doing an outfitting and game farming business”. 50 . I am of the view that the provision pertaining to the expectation of Chief and Council to the effect that Mr.

Nordstrom is to comply with federal and provincial rules and laws regarding outfitting, is of virtually no legal effect, particularly in respect of game farming. First of all, it is a “whereas” clause. Such clauses are used as

interpretation aids, but do not in and of themselves enact anything. Secondly, a statement that someone is “expected” to do so something, does not require that they do it. Lastly, no mention is made of their expectations concerning “game farming”. It speaks only to “outfitting”. 51 . Further, Band Council Resolution number 38 does not purport to amend or create any By-law. 52 . Band Council Resolution number 39 (also part of D-12) was passed the same day as BCR 38. It does state that it is amending Band By-law 5 but refers to it as “Game-farming Bylaw #5”.

The fact is that the By-law, prior to amendment, did not contain any provisions specifically referable to game farming. The resolution contains the following passages as amendments to By-law 5: That 183 cm (6 foot fence) or higher would be allowed to import domestic Big Game Animals on Poundmaker First Nation. The Big Game stock would be for means of game farming.

The Big Game Animals (live, harvested, or any other genetic preservation) shall with a hand written letter from the Poundmaker Chief and Council, be imported from any other jurisdiction in the country of Canada or USA for the use of Game Farming as listed on the described land location. Domestic B ig( sic ) Game Animals shall, with hand written approval from Chief and Council be exported to any other jurisdiction within Saskatchewan for the purpose of Game Farming by approved Poundmaker members or employee of that member. ( Underling added. ) Amendment to Poundmaker First Nations Export Seal.

Wildlife and Wildlife products derived from Wildlife harvested from Poundmaker First Nations Lands would include Domestic Big Game farmed animals that were imported to Poundmaker from any other jurisdiction to be exported with this seal supplied from Poundmaker First Nation. 53 . The meaning of these amendments are difficult to discern. However, it would appear that the first paragraph says that a 183 centimetre or six foot high fence is permitted for purposes of importing domestic big game Animals on Poundmaker.

It might be noted that the Domestic Game Farm Animal Regulations mandate a 2.44 metre (eight feet) high fence for deer and a 2.1 metre (seven feet) high fence for elk. The first paragraph also seems to purport to authorize the importing of big game animals from other provinces and from the U.S.A. and upon a handwritten letter from Chief and Council. No land locations are described, but it may be that the intended lands were the lands described in Band Council Resolution number 38. 54 . The intent of the second paragraph is anything but clear.

If there is any meaning to be found, it would be to the effect that an approved member of the First Nation or an employee of such a person could export “Domestic Big Game Animals” over the boundaries of the First Nation into other jurisdictions, provided such other jurisdictions were “within Saskatchewan”, and provided that such export

was for game farming purposes, and providing that the approved member had the handwritten approval of the Chief and Council to so export. 55 . The last paragraph appears to purport to amend the provisions related to seals. In this context, “seals” probably means “permits or licences” as that meaning is included in The Wildlife Act, 1998 . The amendment contemplates that the Poundmaker permit or seal would carry with it the power to export animals and animal products that were imported from any other jurisdiction. 56 .

Nothing in Band Council Resolution number 39 expressly authorizes or approves the operation of a domestic game farm on Poundmaker Reserve, even though it deals with supposed powers that a member of the Band might enjoy with respect to domestic big game animals. 57 . Band By-Law number 6-2006 was passed on of September 25, 2006 and purports that it comes into force 40 days after the date of mailing of the By-law to the Minister. Therefore, it could not come into effect any earlier than November 4, 2006. The Certificate of the Superintendent purports to be signed on November 29, 2006.

Accordingly, this By-law could not have been in force at the time of any of the alleged offences except possibly for the last group which are alleged to have occurred on November 27 th , 2006. In the end nothing turns on this, because of the content of By-law 6-2006. 58 . Band By-law number 6-2006 has a cover page and at the foot of that cover page, the passage “Domestic Game Farm Operations By-law #6 -2006” appears. That is the one and only reference to domestic game farming in the entire document. In the

preamble and text of the document, it is described as a By-law for the preservation, protection and management of big game. “Big game” is defined in the By-law, as including bison, and domestically raised bison. Elk and white-tail deer are also included but no mention is made of domestically raised elk or deer. While By-law number 6-2006 does not purport to repeal By-law number 5, it covers much the same ground, except for that which was covered in the 2002 amendment to By-law number 5.

It does add certain additional provisions, including specific provision authorizing outfitting on the Reserve and authorizing the outfitter to grant a permit to a person who is not a member of the Band. It declares that property in all game on the Reserve is vested collectively in the First Nation. All edible flesh of animal killed on the First Nation by a non-member is to go to the outfitter who is to distribute the flesh to the members of the Poundmaker First Nation. 59 . I conclude that no By-law has been presented to this Court that expressly authorizes domestic game farming on Poundmaker First Nation.

A Band Council Resolution (which is not the same thing as a By-law) does purport to authorize “...the usage of Reserve lands to Carlin Darcey Nordstrom for the purposes of doing an outfitting and game farming business”. Nothing requires Mr. Nordstrom to abide by provincial or federal requirements in conducting a game farming operation. By-law number 6-2006 was not in force when any of the animals relevant to the present charges were killed. It may or may not have been in effect when Mr. Nordstrom endeavoured to cross into the United States with animal products on November 27, 2006. 60 .

Ultimately, the By-laws, with amendment that have been presented to this Court in this trial do not come close to meeting the requirements outlined by Mr. Don Farrer in his letter of October 16, 2002. With considerable hesitation, I have concluded that the 2002 amendment to By-law 5 authorizes game farming on Poundmaker, but it does so only by inference and implication. It seems to authorize use of six foot fences rather than eight foot fences. It does not require Mr.

Nordstrom to do anything such as removing existing free range wildlife, or submitting heads for Chronic Wasting Disease testing, or maintaining of a unique animal identification tag system, involving a provincial tag and one other. It also does not require him to tag domestic game farm animal products in such a way that they are distinguished from free ranging wildlife. In fact, it appears that the opposite is the case. The By-law purports to allow use of the First Nations regular hunting seals to export domestic game farm products that were imported from elsewhere.

It would seem that this provision is intended to legalize exporting of animal products previously illegally imported. VIII. The conduct of Mr. Nordstrom ’s operation relative to provincial standards . 61 . The expectation of these Departments of Government are set out in the Don Farrer letter (part of P-17), and it would seem that the issuing of import or export permit licences to Mr. Nordstrom in respect of domestic game farm animals was, in their view, dependent upon compliance with these expectations.

The administrative decision about issuance was and is in their control, subject of course to such remedies as mandamus . Accordingly, the view of this Court as to whether or not such licences should have been granted is probably irrelevant.

62 . However, for what it is worth, it is my view that, aside altogether from what the By-laws say, Mr. Nordstrom was far from meeting the requirements set out in the Don Farrer letter (P-17). Mr. Nordstrom did comply with the requirement that the land be properly cleared of free ranging wildlife. Officer Olson of North Battleford was directly involved in the process. The fences appear to have met the Farrer specifications. However, the unique animal identification tag system was not implemented or followed. The animals only had one tag, and it was removed right after the kill.

He was not prepared to send in the heads for testing, because he didn’t think all other operators were required to do this. He also was not going to send it to the named tester because he feared “tampering” that would lead to false positive results. He told SE that he would send the heads to an independent third party. The clear implication was that Mr. Nordstrom did not trust the integrity of Prairie Diagnostic Services at the University of Saskatchewan because of that agency’s apparent link to SE. I doubt that this rationalization did much to impress SE officials or convince them that they should issue Mr.

Nordstrom import or export permits. On the subject of tagging so that domestic game farm animal products could be distinguished from free ranging wildlife, Mr. Nordstrom indicated that the Chief and Council decided that the Poundmaker hunting licences that were used for free range animals would be used for domestic game farm animals, as the Transport Canada permit would create an adequate paper trail. Further, it would seem that SE believed that Mr. Nordstrom was importing animals into the province without a licence. This proves to be accurate, at least in respect of the two Alberta deer. 63 .

In the circumstances, it would appear that Mr. Nordstrom was not complying with the standards required by SE and SAFRR and hence the issuing of import or export licences was very unlikely. Moreover, Mr. Nordstrom’s refusal to participate in a mandatory disease testing program (See The Domestic Game Farm Animal Regulations s.14.3, infra. ) eliminated any chance he might have had of compelling issuance in a mandamus application. 64 . The province was not prepared to issue any import or export licences to Mr. Nordstrom for a variety of reasons, including the above.

While a finding in this respect is not necessary for purposes of deciding this case, it would seem that their position was reasonable. LEGISLATION 65 . R. v. Marsland , 2008 SKPC 148 , (2008), 326 Sask. R. 147, dealt with charges under The Wildlife Act, 1998 , and WAPPRIITA of importing wildlife, where such wildlife were domestic farm animals. In paragraphs 11 to 24 the learned trial judge set out and commented on the legislation relevant to the charges in that matter. In the appeal of that decision ( R. v. Marsland (J.C.) , 2011 SKQB 207 , [2011] Sask. R. TBEd. JN.011), the learned

summary conviction appeal judge agreed with the learned trial judge’s comments regarding the legislation. The present case, while substantially broader in its scope, includes the kind of charges that were dealt with in that matter. I adopt the learned trial judge’s comments but will not reproduce them here, in the interests of brevity. 66 . Because this matter includes many charges of a variety that were not dealt with in Marsland , I will set out the legislative provisions that I see as primarily relevant. I recognize that there are other provisions that have some relationship to this matter.

Again in the interests of brevity, I will endeavour to only reproduce the necessary sections and do so for reference purposes. 67 . Among the relevant provisions of The Wildlife Act, 1998 , S.S. 1998, c W-13.12 are the following: 2 In this Act : "licence" means a licence, certificate, permit, quota or allocation issued pursuant to this Act or the regulations and includes any seal or corresponding document issued with the licence, certificate, permit, quota or allocation; "wildlife" means a vertebrate animal of any species, excluding fish, that is wild by nature in Saskatchewan and includes: (

a) any part, tissue, genetic material, eggs, sperm, embryos or other forms of developmental life; and (

b) any exotic wildlife found in Saskatchewan; "wild species" means any plant, animal or organism that is wild by nature and includes: (

a) pollen, spores, eggs, sperm, embryos or other forms of developmental life; and (

b) any part, tissue or genetic material of a plant, animal or organism; 9 Subject to the regulations, the minister may enter into an agreement with any person, Indian band or government for any of the

following purposes: (

a) protecting, managing, conserving, reintroducing or encouraging the propagation of wildlife and wild species and protecting, managing and conserving their habitats; (

b) establishing and promoting programs respecting public safety, education about wildlife or wild species or other conservation-oriented programs; (

c) respecting any matter considered to be necessary by the minister to carry out the provisions of this Act or the regulations. 23(1) Subject to

section 24, the property in all wildlife within Saskatchewan, including any wildlife that has been unlawfully hunted, is vested in the Crown.

(2) No person shall acquire any right or property in any wildlife otherwise than in accordance with this Act and the regulations. 24(1) Subject to this Act and the regulations, a person has all property rights, title and interest in and to any wildlife where that person: (

a) is in possession of the wildlife; and (

b) has a licence authorizing possession of the wildlife.

(2) Where a person mentioned in subsection (1) contravenes any of the provisions of this Act or the regulations respecting the wildlife under his or her control, all property rights, title and interest in and to the wildlife may be forfeited to the Crown at the discretion of the minister. ..... 31(1) Subject to the regulations, no person shall, without having first obtained an export or import licence issued pursuant to this Act or the regulations: (

a) export or cause to be exported from Saskatchewan any wildlife; or (

b) import, release or introduce into Saskatchewan any wildlife.

(2) No person shall ship or transport out of the province any wildlife without first paying the royalties prescribed in the regulations. 32 No person shall take into or keep in captivity or wilfully destroy or disturb any wildlife, or the eggs or nests of any bird protected pursuant to this Part or the regulations or pursuant to the Migratory Birds Convention Act, 1994 (Canada) or the regulations made pursuant to that Act without the written permission of the director or without a licence to do so. 33(1) No person shall possess any wildlife taken in contravention of this Part or the regulations.

(2) No person shall possess any wildlife without a licence where, pursuant to this Part or the regulations, a licence is required to possess that wildlife. ..... 68(1) The certificate of the director that a licence, seal or notice has or has not been issued or given to a person pursuant to this Act or the regulations is admissible, in the absence of evidence to the contrary, as proof that the licence, seal or notice has or has not been issued or given, without proof of the office or signature of the director.

(2) In any prosecution pursuant to this Act in which the validity or existence of a licence is in question, the onus is on the person charged to prove the validity or existence of the licence. 69 Any person who aids, abets, counsels or procures the contravention of a provision of this Act or the regulations is guilty of an offence and liable on

summary conviction to the penalties for the offence that the person has aided, abetted, counselled or procured. .... 68 . A variety of regulations have been made under The Wildlife Act,1998 . Among them are The Wildlife Regulations, 1981 the most relevant of which are as follows: 3(1) These regulations apply to all wildlife wherever found.

(2) For the purposes of this

section and sections 4 and 6: (a) "big game animal" means a big game animal as defined in The Domestic Game Farm Animal Regulations ; (b) "domestic game farm" means a domestic game farm as defined in The Domestic Game Farm Animal Regulations ;

(c) "domestic game farm animal" means a domestic game farm animal as defined in The Domestic Game Farm Animal Regulations ; (d) "domestic game farm licence" means a domestic game farm licence as defined in The Domestic Game Farm Animal Regulations ; (e) "domestic game farm operator" means a domestic game farm operator as defined in The Domestic Game Farm Animal Regulations .

(3) Notwithstanding subsection (1), these regulations, other than sections 4 and 6, subsections 11(1) and 26(1) and sections 51 and 53, do not apply: (

a) to any domestic game farm animal with respect to which a domestic game farm operator holds a valid licence issued pursuant to The Domestic Game Farm Animal Regulations ; (

b) with respect to domestic game farm animals, to any domestic game farm operator who holds a valid licence issued pursuant to The Domestic Game Farm Animal Regulations ; or (

c) to any person who slaughters or processes a domestic game farm animal where the slaughter or processing is done: (

i) with the permission and under the direction of a domestic game farm operator; and (ii) on the domestic game farm of the domestic game farm operator. ...... 31(6) No licence or Saskatchewan Wildlife Habitat Licence is valid unless it is signed by the person to whom it is issued. ...... 46(1) No person shall have in his possession the whole or any part of any unprocessed hide of any big game animal, unless a seal is attached to the hide.

(1.1) No person shall have in his possession the whole or any part of any unprocessed carcass of any big game animal, unless a seal is attached to the carcass. 51(1) For the purposes of subsection 31(1) of the Act : (

a) a game bird licence or big game licence seal constitutes the authority to export legal limits of the game taken under that licence, if the game accompanies the licensee; (

b) a game export permit on the form provided by the department must accompany any shipment of game out of the province which is not accompanying the licensee; .....

(2) Notwithstanding subsection (1), raw big game hides may be exported if a big game seal is attached to the hide. 69 . Portions of The Captive Wildlife Regulations (made pursuant to The Wildlife Act,1998 ) are relevant and most notably the following: 13(1) Any person importing or exporting wildlife or parts of wildlife shall obtain an import or export licence, as the case requires, pursuant to

section 30 of the Act . (Should now be read as

section 31 of the Act )

(2) Notwithstanding subsection (1) but subject to subsection (3), a person who holds a valid licence pursuant to The Domestic Game Farm Animal Regulations may export domestic game farm animals without an export licence.

(3) A person who holds a valid and subsisting licence described in subsection (2) who imports or exports wildlife for a purpose other than that mentioned in subsection (2) shall comply with subsection (1). 70 . The Domestic Game Farm Animal Regulations (previously mentioned and hereinafter referred to as DGFAR ) were created through

section 18 of The Animal Products Act , R.S.S. 1978 (Supp), c A-20.2. The Animal Products Act is for the most part aimed regulation of traditional livestock production. As the farming of game animals, such as elk and deer, developed it became necessary to regulate that aspect of animal production for the good of the industry, the animals and the general public. The DGFAR were created in response to this need.

These Regulations set out the requirements and rules for the operation of a domestic game farm in Saskatchewan, including, inter alia , the licencing of game farm operators, the rules for acquiring and importing of game farm animals, the requirements for enclosing game farm animals and seeing that they are kept separate from free ranging animals of the same species, the tagging and

identification of living animals and of slaughtered animals and their products, and mandatory participation in the Cervid Chronic Wasting Disease Surveillance Program. While all of these Regulations have at least some relevance to the present matter, I will set out only those that I see as being most relevant. 2 In these regulations: (e) "domest

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