His Majesty the King - v. -, 2023 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 41 Date: October 20, 2023 Ticket: 85339596 Location: Pierceland _____________________________________________________________________________ Between: His Majesty the King - and - David Sandfly Appearing: R.J. Fyfe, K.C. For the Crown J.R.G. Jeerakathil, S.L. Eggerman, J.D. Buhler For the Accused D ECISION M. SEGU , J Introduction [ 1 ] The accused, Chief David Sandfly, is charged with unlawfully hunting a bull moose on February 16, 2020, contrary to section 25(1) (

a) of The Wildlife Act , 1998 , SS 1998, c W-13.12 [ Wildlife Act ]. [ 2 ] Chief Sandfly is the current chief of Big Island Lake Cree Nation (BILCN), formerly known as the Joseph Bighead band.

[ 3 ] The evidence establishes, and the accused concedes, that on the relevant date he was actively hunting for moose, and in fact, shot a moose near the roadway of the East/West Road, near kilometer 77, north of Meadow Lake Provincial Park, in the Pierceland area.

This portion of the East/West Road is clearly designated as a Road Corridor Game Preserve (RCGP) by the Province, and hunting is prohibited within 400 meters of either side of the center line of the road, pursuant to the Wildlife Act and its associated Wildlife Regulations . [1] At the time he shot the moose, Chief Sandfly was not in possession of a licence which would allow him to do so. [ 4 ] An Agreed Statement of Facts filed by the Crown and defence, sets out the following additional relevant information: 1.

That Joseph Bighead adhered to Treaty No. 6 on June 25, 1913 on behalf of the band now known as Big Island Lake Cree Nation. 2. That, by virtue of Treaty No. 6, Big Island Lake Cree Nation members have the Treaty right to hunt for food. 3. That Big Island Lake Cree Nation’s members’ Treaty right to hunt for food is recognized and affirmed pursuant to section 35(1) of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . 4. That David Sandfly is a member of Big Island Lake Cree Nation. 5. That David Sandfly has the constitutionally protected Treaty right to hunt for food. 6. That David Sandfly is the elected Chief of Big Island Lake Cree Nation. 7. That, effective September 10, 1997, the East/West Road Corridor Game Preserve was constituted by The Wildlife Management Zones and Special Areas Boundaries Regulations , 1990, RRS c W-13.1, Reg 45 . 8.

That the East/West Road Corridor Game Preserve consists of all lands within 400 metres of the centre line of the road commonly known as the East/West Forestry Hauling Road lying between Highway 904 and Highway 919 in the Province of Saskatchewan. 9. That the East/West Road Corridor Game Preserve is within the traditional territory of Big Island Lake Cree Nation. 10. That, on February 16, 2020, David Sandfly was hunting for food without a licence within the East/West Road Corridor Game Preserve. 11.

For greater certainty, the accused’s identity is not at issue for the purposes of this trial. [ 5 ] Based on the above, the basic elements of the offence are made out. By way of defence, Chief Sandfly advances several alternative Charter arguments. If any of the Charter defences prevail, Chief Sandfly may be entitled to an acquittal. [ 6 ] The Court has had the benefit of, and thanks counsel for, excellent briefs of law concerning the points in issue. Those materials have been considered in their totality in arriving at the decisions made in this case.

Summary of Defence Position [ 7 ] The defence seeks to make several alternative arguments pursuant to its Notice of Constitutional Questions, each with a variety of sub-arguments. Those arguments are set out as follows: 1 . The application of the Wildlife Act and associated Wildlife Regulations are contrary to section 35(1) of the Constitution Act, 1982 because: a . The accused was exercising his Treaty 6 right, as modified by

section 12 of The Saskatchewan Natural Resources Act , SC 1930, c 41 [ NRTA ], to hunt for food and/or ceremonial purposes on lands to which he has a right of access, as protected by

section 35 of the Constitution Act, 1982 ; b . The East/West RCGP is Crown land to which the accused had a right of access; c . The accused’s Treaty 6 right to hunt was prima facie infringed by the complete ban on Treaty 6 hunting rights in the East/West RCGP as set out in section 25(1)(

a) of the Wildlife Act and section 5(2) of the Wildlife Regulations ; d . The Government of Saskatchewan cannot justify the prohibition against the exercise of Treaty 6 hunting rights in the East/West RCGP.

2 . The prohibition against hunting in the East/West RCGP is ultra vires the Government of Saskatchewan to the extent it applies to the accused’s hunting activities in question, and therefore unjustifiably infringes the accused’s Treaty 6 right to hunt, because: a . The accused was hunting for food and/or ceremonial purposes on land to which he had a right of access; b .

Paragraph 12 of the NRTA specifically excludes, from the jurisdiction of the Province of Saskatchewan, regulation of Indian hunting for food and/or ceremonial purposes on unoccupied Crown land, or lands to which the Indians have a right of access; c . It would be ultra vires the Province of Saskatchewan to regulate the accused’s hunting for food and/or ceremonial purposes on Crown lands to which he has a right of access. 3 . The Wildlife Act unconstitutionally limits the accused’s right to be governed by Big Island Lake Cree Nation’s Indigenous laws in relation to hunting, in that: a .

BILCN has an Aboriginal and/or Treaty right to govern the hunting activities of its citizens within their traditional territory in accordance with their Indigenous laws; b . As an extension of BILCN’s right to govern the hunting activities of its citizens within their traditional territory, the accused has an Aboriginal and/or Treaty right to be governed in accordance with those Indigenous laws; c .

The prohibition against hunting rights in the East/West RCGP is a prima facie infringement of the accused’s Aboriginal and/or Treaty right to be governed by BILCN’s Indigenous laws while hunting within their traditional territory; d . The Government of Saskatchewan cannot justify the prima facie infringement.

Summary of Crown Position [ 8 ] Unsurprisingly, the Crown takes the position that based on a significant and established body of law, Chief Sandfly had no right, Treaty or otherwise, to hunt within the East/West RCGP, and that it is a properly constituted, bona fide RCGP, and hence occupied Crown land, with no right of access by the accused. The Crown also takes the position that there has been no prima facie infringement established, and even if one were, the infringement would be justified. Issues to be Resolved [ 9 ] The arguments advanced by Chief Sandfly require a resolution of the following issues: 1.

Is the East/West RCGP occupied or unoccupied Crown land? 2. If it is occupied land, is it occupied for a bona fide purpose? 3. If the RCGP is validly occupied Crown land, did the accused have a right of access? 4. If there is a right of access, was there a prima facie infringement of a Treaty right? 5. If there has been a prima facie infringement of either an Aboriginal or Treaty right, is the infringement justified? 6. Does BILCN (and by extension the accused) have an Aboriginal and/or Treaty right to self-government and/or hunting, protected by section 35(1) of the Constitution Act , 1982 ? a.

If yes, has there been an infringement of such a right? b. If yes, is the infringement justified? [ 10 ] The resolution of these several issues will also, by necessity, call for an examination of the principles of stare decisis , and its impact on this case. As set out by our Court of Appeal, the concept of binding precedent occupies a central place in judicial decision- making, and requires that lower courts make decisions consistent with the prior decisions of higher courts. The Relevant Legislation [ 11 ] The Constitution Act, 1982

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [ 12 ] The Wildlife Act, 1998 [ Wildlife Act ] 25(1) Subject to subsection (2), no person shall hunt any wildlife within Saskatchewan: (

a) other than at the times, in the places and in the manner prescribed by this Part and the regulations; and (

b) without a licence where a licence is required by this Part or the regulations. [ 13 ] The Wildlife Regulations, 1981 [ Wildlife Regulations ] 5(2) No person shall, without a licence for the purpose: (

a) hunt … in a game preserve, road corridor game preserve, wildlife refuge, wildlife management unit, regional park, provincial park, protected area or recreation site; or (

b) carry, possess or discharge any firearm in or discharge a firearm over a game preserve, road corridor game preserve, wildlife refuge, wildlife management unit, regional park, provincial park, protected area or recreation site. [ 14 ] The Wildlife Management Zones and Special Areas Boundaries Regulations, 1990 , RRS c W-13.1 Reg 45 [ WMZ Regulations ] East/West Road Corridor Game Preserve consists of all lands within 400 metres of the centre line of the road commonly known as the East/West Forestry Haul Road lying between Highway 904 and Highway 919. [ 15 ] The Saskatchewan Natural Resources Act, SC 1930, c 41 Schedule, Memorandum of Agreement [ NRTA ] [12] In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

Summary of Trial Evidence [ 16 ] A brief word on the evidence led in this case is warranted. Both the defence and the Crown called a significant number of witnesses, including multiple expert witnesses, over the course of several court appearances between November 2021 to April 2023. [ 17 ] Rather than attempt to provide a detailed review of each witness’s testimony, I will provide a brief synopsis of their areas of evidence and where necessary, findings regarding weight and credibility.

Where it is necessary for a determination on the stated issues, I will provide a more detailed assessment of their evidence in the context of the particular issue. Crown Evidence (including rebuttal evidence) [2] [ 18 ] The Crown, in addition to the presentation of the Agreed Statement of Facts, called the initial responding Conservation Officer, Zoey Schaeffer, and seven rebuttal Crown witnesses. Zoey Schaeffer [ 19 ] Zoey Schaeffer was one of the conservation officers who investigated Chief Sandfly’s hunting activity on the day in question.

She provided a brief overview of the investigation, photographs of the area where the moose was killed, as well as signage regarding the

RCGP. She testified that she was unaware of any licences being issued for people to hunt in a RCGP. Joann Skilnick [ 20 ] Joann Skilnick is the Director of the Wildlife Unit for the Saskatchewan Ministry of Environment (MoE). The Wildlife Unit is responsible for managing wildlife in the Province, particularly game and fur species that are harvested for food or fur. The Unit has a Wildlife Management

Section that has species specialists and regional biologists, as well as an Allocation and Licencing

Section that is responsible for setting up big game draws and hunting seasons. The MoE has regional offices in Meadow Lake, Prince Albert, Yorkton and Swift Current. [ 21 ] Ms. Skilnick’s work includes the development of wildlife management policy. Policy development can flow either from top management down to the biologists, or vice versa. [ 22 ] Ms.

Skilnick searched for studies or reports related to the creation of RCGPs in the Province: Her search included having all field staff and biologists search their paper files and any libraries in the field offices; searching MoE’s digital files; retrieving and searching a box of files related to Edward Kowal (a former MoE biologist who studied and oversaw the creation of RCGPs); and retrieving and searching other archived boxes. Ms. Skilnick was unable to locate historical materials on this topic, other than a slide show created by Mr. Kowal.

Katherine Conkin [ 23 ] Katherine Conkin is the Team Lead for the MoE’s Wildlife Unit, and reports to Ms. Skilnick. MoE regional biologists and area ecologists report to Ms. Conkin. [ 24 ] Ms. Conkin provided testimony regarding the MoE’s Game Management Plan, 2018 – 2028 . The document itemizes the MoE’s order of priority for game allocation, putting conservation first; First Nation and Métis rights second; other Saskatchewan residents third; and non-residents last. Ms. Conkin outlined how stakeholders and Indigenous peoples were engaged in creating the document. [ 25 ] Ms.

Conkin discussed the “precautionary principle” referenced in the document which, for conservation, means that the “absence of information will not be used as a reason not to act”. She described how this principle informs the MoE’s continued use of RCGPs, and the view that RCGPs remain a useful tool to combat moose decline in the boreal forest. Ms. Conkin further opined that it would be counterintuitive to remove a tool that protects moose where there is greater visibility (roadways), and thus greater vulnerability.

This stands in contrast to the approach in Manitoba, where much broader geographical areas are closed to hunting. Saskatchewan has opted for a more restrained approach. [ 26 ] Ms. Conkin also reviewed the MoE’s Game Allocation Framework document. She discussed various regulatory restrictions on licenced hunting identified in the document, including: big game draws (under which a limited number of hunting licences are granted in a lottery); hunting seasons; animal sex and age restrictions; and “bag limits”, which allow only one moose to be harvested for each licenced hunter. [ 27 ] Under cross-examination, Ms.

Conkin confirmed that there are no areas of the Province open exclusively to rights-based hunters. However, other than restrictions imposed by RCGPs or safety, Indigenous rights – based hunters are subject to no other limitations that would normally apply to licence based hunters. [ 28 ] Finally, Ms. Conkin reviewed steps she took to try to find studies or reports related to the work of Mr. Kowal and RCGPs, all of which were unsuccessful. She also conceded that the Provincial government has not done any further formal studies to assess the efficiency of RCGPs since their implementation in the late 1990’s.

Glen Kurjata

[ 29 ] Mr. Kurjata is the Inspector and Compliance Manager for the Meadow Lake Compliance Area. Since 2022, he has worked for the Saskatchewan Ministry of Corrections, Policing and Public Safety, prior to which his duties were with the MoE. The Meadow Lake Compliance Area is bounded by the Air Weapons Range to the north, Green Lake to the east, Spiritwood to the south and the Alberta border to the west. [ 30 ] Inspector Kurjata oversees conservation officers and their work in the various compliance offices in the area.

He participates in some enforcement activities in his current role, including in the East/West RCGP. [ 31 ] Inspector Kurjata has been in his position for three years, prior to which he was a Sergeant in the area for six years, and a conservation officer for seven years before that. As a Sergeant and conservation officer, he has extensive personal experience with the East/West RCGP. He provided anecdotal evidence regarding his frequent observations of moose on the East/West Road, particularly in the fall and winter seasons. [ 32 ] Inspector Kurjata clarified that no one is allowed to hunt in a RCGP.

Hunters may park their vehicles roadside and, from there, walk or drive into the bush to hunt outside of the RCGP. Treaty hunters may do this any time of year, whereas licenced hunters can do so only during regulated hunting seasons. [ 33 ] Inspector Kurjata stated that year-round Treaty hunting is permitted in Meadow Lake Provincial Park, and from roads running through it, subject to certain “safety zones”, as well as on other roads that are not subject to a RCGP, including roads in the vicinity of BILCN’s reserve. Gerald Kuzyk [ 34 ] Gerald Kuzyk is the current moose biologist for the Province of Saskatchewan.

He co-authored a paper entitled Female Moose Prioritize Forage Over Mortality Risk in Harvested Landscapes , which was relied upon by the defence expert witness, Dr. Philip McLoughlin. [ 35 ] Mr. Kuzyk explained the paper’s finding that, while female moose avoid roads in spring and fall, “overall, if you look at the whole year, they didn’t avoid roads. They prioritized that high-quality forage which was found in those young cut-blocks”. The paper did not address why moose avoided roads at times, which is an area for future study.

Equally, the paper did not address bull moose. [ 36 ] The paper identifies an increased risk to [all] moose created by forestry roads and hunter access, in that: … Roads also provide vehicular access for hunters to areas that are otherwise inaccessible and hunting success has been documented to increase with use of vehicles (Rempel et al. 1997, Schmidt et al. 2005).

Roads may have a negative effect on moose by facilitating predator travel and hunter access , thereby increasing their exposure to potential predation; a landscape with an extensive road network juxtaposed with extensive early seral habitat offering high visibility as a result of salvage logging has the potential to be a risky landscape for moose. [emphasis added] [ 37 ] Mr. Kuzyk is also the Saskatchewan representative to the Canadian Moose Technical Committee, a national committee struck to address the decline in moose numbers.

He testified that moose populations in Western Canada have been declining since the mid- 2000s (including in Saskatchewan’s southern boreal forest), and he had not recommended the removal of RCGPs. William Stuart Golly [ 38 ] William Stuart Golly is a retired MoE official, with 37 years of experience, who oversaw public consultations in the mid 1990’s concerning several RCGPs in northwest Saskatchewan, including the East/West RCGP. He was an Integrated Resource Manager in the Meadow Lake region at that time. [ 39 ] Mr.

Golly outlined three key developments that led to the creation of the RCGP on the East/West Road, namely: • Previous RCGPs in the mid-1980’s from Green Lake to Beauval;

• The expansion of forestry practices from small outfits to larger companies, leading to increased road development; • Concern by locals (including some First Nations) regarding the impact on various interests. [ 40 ] Mr. Golly stated that the RCGPs’ purpose was to “prevent or circumvent opportunistic hunting of big game populations”, noting that moose are “very susceptible” to roadside hunting. He emphasized that this is so particularly where new roads could cause a detrimental impact on local wildlife populations. [ 41 ] Mr.

Golly testified about his participation in the consultation process with multiple Indigenous groups at the time of the initial creation of the East/West RCGP, which included (but was not limited to) the following: • An invitation sent to certain Indigenous communities (including BILCN) to participate in the Goodsoil-Pierceland Advisory Board meeting on September 17, 1996, concerning the creation of RCGPs.

Notably, the meeting was attended by one Edwin McRae, from the Joseph Bighead Band Office, who (according to the minutes of the meeting) indicated “Bighead was in favour of the wildlife corridors, however had some concern about them being established on the Muskeg Lake Road (not the East/West Road); • A meeting on September 30, 1996 between SERM [3] and BILCN fur block members; • A letter dated March 19, 1997 sent to stakeholder groups and Indigenous communities (including BILCN), seeking their input on the proposed RCGPs; • An on-reserve meeting at BILCN with band leadership, discussing the proposed East/West RCGP. [ 42 ] Notably, SERM (MoE) did not implement the RCGPs themselves, but rather submitted information collected to the legislative review committee advising the Provincial Cabinet.

The Provincial Cabinet actually made the decision regarding implementation. Edward Kowal [ 43 ] Edward Kowal was qualified as an expert witness in wildlife management. His report is entered into evidence as Exhibit P- 12. Prior to his retirement in 2013, Mr. Kowal had worked for the MoE as a wildlife biologist for approximately 37 years. [ 44 ] Mr. Kowal’s report reviews the history of forestry in Saskatchewan in the 1960’s and 1970’s, which saw an expansion of harvesting and road building, and the concomitant depletion of moose.

Given the severity of the decline in moose populations during the 1970’s, in part from the expansion of roadways and increased forestry activities in the Province, Mr. Kowal led a project to inventory and classify roads in the commercial forest. [ 45 ] The East/West Road is classified as a Class 2 road, meaning it cannot be closed to public access. As an alternative, Mr. Kowal helped design the RCGP concept and then test it in a three-year study starting in 1983. The goal was to not completely close the entire area to hunting (such as a game preserve), but to still protect moose near the roadway.

Moose showed significant recovery in an area subject to road closures and RCGPs that was comparable to their recovery in an area game preserve. [ 46 ] Mr. Kowal conceded under cross-examination that his study did not filter out road closures, such that a determination of the effect of RCGP’s could be evaluated in isolation. [ 47 ] Mr. Kowal explained that choosing 400 meters from either side of the road for RCGPs was based on the shooting range of most hunters.

He explained that moose are attracted to roadside for foraging where they are vulnerable to hunting because they are highly visible. [ 48 ] When asked whether RCGPs are an effective wildlife management tool, Mr. Kowal responded “my opinion is that that’s our last – last and only method that we have to protect a moose population in areas of extensive all-weather roads and network that pretty well goes through the entire moose habitat scenario”. Mr.

Kowal reported that by the 1990’s, “intensive logging also occurred in the Meadow Lake area” and in “accessible timber harvesting areas, moose numbers dwindled”. [ 49 ] In reviewing Dr. Philip McLoughlin’s expert report in these proceedings, Mr. Kowal countered McLoughlin’s conclusions by pointing out that they were based on “a single scientific report [Arsenault et al (2019)] with extremely limited data, numerous

assumptions and a single moose survey conducted in the late 1990’s”: namely the same criticism leveled by defence against Kowal’s support for the RCGPs effectiveness. [ 50 ] In response to a 1989 SERM briefing memo regarding RCGPs, cited by defence expert James Morrison, Mr. Kowal clarified that he was one of the memo’s authors. He personally testified that the purpose behind the RCGP was to protect the moose population, not to benefit sport hunters, in direct contradiction to the conclusions reached by Morrison. Dr. Clint Evans [ 51 ] Dr.

Clint Evans was qualified as an expert in western Canadian history, with particular knowledge of Aboriginal and Métis history from Ontario westward. His report is filed as Exhibit P-16. [ 52 ] Dr. Evans’ opinion was that BILCN was aware of federal and provincial game laws when it adhered to Treaty in 1913. The primary difference between his opinion and that of defence expert James Morrison was in their view of the reliability of Inspector Chisholm’s adhesion report, which provides context for BILCN’s adhesion to Treaty 6. Unlike Mr. Morrison, Dr.

Evans saw no reason to discount the veracity of Inspector of Indian Affairs W.J. Chisholm’s adhesion report in which he recounted his discussions with members of Joseph Bighead leading to the signing of the adhesion in 1913. [ 53 ] Dr. Evans identified what he perceived to be several flaws in Mr. Morrison’s opinion on this point. [ 54 ] While I have considered the defence objections to Dr. Evan’s credibility, I find that ultimately his evidence is not central, given other conclusions reached later in this decision. Accordingly, I have not attached a significant amount of weight to his evidence. Defence Evidence (

i) Chief Sandfly [ 55 ] The accused, Chief Sandfly, testified in his own defence. He described his understanding of the BILCN traditional territories, his training regarding the hunting of moose, Indigenous laws related to the hunting of moose, and the importance of moose to the BILCN, from cultural, ceremonial and spiritual perspectives. [ 56 ] He acknowledged that on the day in question, he had been requested by an unidentified elderly lady, (presumably a member of BILCN), to hunt for the purpose of providing moose parts for a feast.

On the East/West road he observed four moose standing on the left side of the road. He stopped his vehicle on the roadway, loaded his firearm, and exited the truck. A cow and two calves began running. When the bull moose turned to run, Chief Sandfly shot it twice. After the second shot, the bull moose ran across the East/West road, where it died on the south side of the road. [ 57 ] Chief Sandfly acknowledged the East/West Road was primarily a logging road, and it had been in existence for a significant period of time. (ii) Expert Evidence

Mr. James Morrison [ 58 ] Mr. Morrison was qualified as an expert in the following areas: the history of the negotiation and formation of the post- Confederation numbered treaties, including Treaty 6 and the adhesion thereto by BILCN. Mr. Morrison also provided expert evidence on the history of the regulation of Indigenous hunting in what is now Saskatchewan, as well as opinion evidence on the historical context and passage of the NRTA . [ 59 ] His report was filed into evidence as Exhibit D-9 and supporting documents in three volumes (Exhibit D-5). [ 60 ] Generally speaking, Mr.

Morrison’s evidence provides the Court with a high level overview of the history of the formation of the numbered treaties, beginning in 1870, including the historical and social context of the time. He described the various bureaucratic structures involved in both the creation and administration of the treaties, including Treaty 6 (signed in 1876 and adhered to by the Joseph Bighead band in 1913) which is in issue at this trial. The band was initially referred to as Joseph Bighead, the Chief at the time of adhesion, but later became known as Big Island Lake Cree Nation. [ 61 ] Mr.

Morrison’s testimony provided an overview of the traditional territories of BILCN, which spanned three Treaty territories (6, 8 and 10). The Northern Plains Cree peoples, which include BILCN, had a lifestyle based on hunting, fishing and trapping. Hunting included big game, such as moose, elk and deer. According to Mr. Morrison, this lifestyle pre-dated the arrival of settlers by a few hundred years. Additionally, the Northern Plains Cree maintained a traditional lifestyle well into the 20 th century. [ 62 ] Mr.

Morrison’s evidence gave some historical context of the plains geography, including the boundaries of the Northwest Territories, prior to the establishment of Saskatchewan as a Province. [ 63 ] Mr.

Morrison provided evidence regarding the text of Treaty 6 including its harvesting clause, which reads as follows: Her Majesty further agrees with her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by her Government of her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by her said Government of the Dominion of Canada, or by any of the subjects thereof, duly authorized therefor, by the said Government.

Of particular note, Mr. Morrison cautioned against taking the adhesion report of Inspector W.J. Chisholm at face value, particularly as it related to BILCN’s understanding of the harvesting clause contained in Treaty 6. [4] I find Mr. Morrison’s evidence on this point to be unduly paternalistic, particularly when the Court considers the expert evidence of Dr.

Lindberg, that the Cree people had been negotiating alliances and treaties at least as far back as the 19 th century. [5] I find, on the material before me, that the members of the band representing Joseph Bighead at the adhesion meetings possessed a higher level of understanding than Mr. Morrison would give them credit for. In reviewing the source material, particularly the adhesion report of Inspector Chisholm, it is clear the Chief of the Joseph Bighead Band wanted to negotiate, through the translator, for back payment of annual annuities from the date when Treaty 6 was first signed.

Additionally, during the same discussions with the Inspector, Joseph Bighead specifically complained of the existing restrictions on Indigenous hunting and fishing rights. The evidence tendered at trial indicates game enforcement had been occurring for at least the past 37 years prior to the signing of adhesion. [6] [ 64 ] Mr. Morrison provided contextual evidence regarding the representations made to Indigenous groups at the time of the making of Treaty 6, noting that hunting, fishing and trapping issues were always raised at Treaty talks.

According to Morrison, the Indigenous peoples were always concerned about the impact of the arrival of settlers. [ 65 ] Mr. Morrison described a repetitive scenario where colonial Treaty representatives would reassure Indians that the arrival of settlers would not drastically affect their existing hunting rights. His evidence provided a detailed history of the ongoing tension between (

a) the Federal government and various territorial/provincial governments over laws related to hunting and their impact on Indians, and (

b) tensions between territorial/provincial governments and Indians over hunting rights. [ 66 ] The evidence provided a sense of the constantly shifting legal landscape as to whether Indian hunting was subject to provincial “closed seasons”, geographical restrictions (off-reserve hunting), hunting licences, or bag limits, for example, prior to the implementation of the NRTA .

[ 67 ] Mr. Morrison also provided some historical context surrounding the passage of the NRTA in 1930, including his assessment of vociferous Provincial opposition to the legislation. [ 68 ] In assessing the utility of Mr. Morrison’s evidence at trial, there are several drawbacks that cause the Court concern. First, he appears to, on occasion, draw conclusions without a sound basis for doing so. For example, he relies on secondary source materials and documents to deduce the original intent behind RCGPs without taking the rather obvious step of interviewing the prime architect of the program.

Second, he at times arrives at conclusions that are not supported against the weight of firsthand evidence from those directly involved in the events of the day. For example, he suggests that in an August 1989 government briefing memo, Indian hunters were being blamed by the government for moose population declines: no Crown witness ever said that, nor is such a conclusion supported in any of the documentation referred to. [ 69 ] Third, Mr.

Morrison’s choice of language in his report is far from neutral, and leaves the Court with the impression he is unprepared to consider the actions of the Province as anything other than sinister, nor does he seem willing to consider game conservation by the Province as anything more than a smokescreen, rather than a legitimate goal in its own right. A prime example is contained in his report at paragraph 314 where he assesses the history of the RCGP program in Saskatchewan: I make the following comment about these materials. Although there are various caveats and qualifications, the basic premise is clear.

The overall purpose of the road corridor game preserves has always been to increase the moose population for the primary benefit of sports hunters, who generate significant economic activity in Saskatchewan. To that end, government officials have consistently expected Indian people to sacrifice their right to hunt for subsistence on unoccupied Crown land at all times of the year. Rather, there is significant evidence before the Court that the original intention was conservation, with a focus on establishing moose population levels that would support a sustainable harvest. These sweeping statements by Mr.

Morrison ignore the clearly stated objectives of conservation, the unsustainability of existing moose harvest numbers in 1989, the rationale for limiting the RCGP to 400 meters from the center line, and the ability of hunters (which would include sport and Indigenous hunters) to still hunt in the immediate area of the RCGP, just outside its boundaries.

It also fails to account for other evidence of conservation measures by the Province such as the Game Management Plan 2018 or the Game Allocation Framework that recognizes Treaty hunting rights. [7] [ 70 ] As suggested by defence in their brief, paragraph 62, the Court accepts Mr.

Morrison’s evidence establishing a contextual historical record regarding BILCN’s adhesion to Treaty 6, but does not accept his conclusion regarding Joseph Bighead’s understanding of the harvesting clause, given the significant contextual evidence of game enforcement over the previous decades leading up to adhesion, and the specific complaints by Joseph Bighead regarding game enforcement at the time of adhesion. Equally, given the concerns set out above, the Court does not accept Mr. Morrison’s conclusions regarding government motivation behind the establishment of RCGPS. Dr. Darcy Lindberg [ 71 ] Dr.

Lindberg gave opinion evidence related to the creation, formation, content and operation of Cree legal traditions and orders (including Treaty

interpretation and hunting in general), and their application to the BILCN. [ 72 ] Dr. Lindberg’s evidence touched on the topic of Indigenous laws and legal ordering of various First Nations, with a focus on the Cree. These Indigenous laws are viewed as separate and distinct from colonial law. These laws emanate from the people themselves and are reflected sometimes in writing, but more typically in oral histories, songs, stories, artistic expressions, and ceremonies. [ 73 ] He proposed a four-step process for examining unwritten legal traditions by identifying: 1.

Who are the decision makers within the legal practice; 2. What legal processes or procedures are involved in the practice; 3. What legal principles govern both individual and collective responsibilities during the practice; and

4. What expectations do people involved in the practice have of others. [ 74 ] He described a system of governance that is both lateral and deliberative, and the role that various parties would have within the decision-making context, including Elders, council members, Chiefs, leadership councils, youth councils, and hunters. The deliberative process described would end once consensus was achieved, and there was room for “appeals” in the sense of a “regathering” or reconsideration of the decision if there were new facts to be considered. [ 75 ] Dr.

Lindberg described the reflection of Cree laws and legal principles in various cultural activities, including giveaways, feasts, and ceremonies. These principles are specifically related to hunting (which is a specialized activity in Cree culture) and are observed through humane conduct, conservation, safety in hunting, and the requirement to share with community members in need. This latter point would include hunting to provide meat for ceremonies when asked to do so. [ 76 ] As part of his overall testimony, Dr. Lindberg expressed the following opinions: 1 .

Elders and formal leaders, as well as hunters, contributed to the decision making as it related to hunting. The Elders had an elevated position and this is consistent with other First Nations communities; 2 . There is a relationship between Indigenous laws and hunting, feasting and giveaways, and there is an obligation to hunt when asked to provide for the community. There is also an expectation regarding the sharing of moose nose and heart; 3 . There are rules respecting hunting that must be followed, including those related to conservation, or stewardship, of both the land and the game upon it; 4 .

Mechanisms exist to deal with transgressions of the hunting rules, including a range of responses; 5 . Existing principles support the legal order or hunting, with clear expectations of each other and as well acceptable standards. [ 77 ] There are several areas of concern that arise with Dr. Lindberg’s evidence. First, his evidence was, in large part, based on a two-day meeting with various Elders at BILCN. Concerning to the Court was that although there were apparently 10 people present at the meeting, Dr.

Lindberg could not state with any degree of accuracy who he met with, or what specifically was discussed that led him to reach the conclusions that he did. His evidence on this point was vague at best. Second, he had no notes present in Court to assist in refreshing his memory of a two-day meeting held eight months before his testimony. Third, the accused himself was a direct participant in the meeting, and the witness provided no information about the accused’s role during the meeting. This raises concerns about impartiality of the evidence on which the expert’s opinion is founded.

Notably, the accused’s participation in the meeting was only revealed after the qualification process. Finally, there is no evidence before me that the Elders participating in the meeting with the expert (and presumably providing the foundation for his conclusions) are the same Elders who testified in these proceedings. It is worth noting that there are significant discrepancies between the clear and concrete conclusions presented by Dr.

Lindberg, and the starkly varying (and inconsistent) evidence of the Elders presented to the Court, which will be discussed in further detail later in this decision. [ 78 ] In short, the Court cannot ascribe significant weight to Dr. Lindberg’s testimony given the rather sparse evidence surrounding its foundation. Dr. Janelle Baker [ 79 ] Dr. Baker was qualified as an expert witness in anthropology, particularly with respect to Cree Aboriginal societies and the role of Cree hunting laws in the same. Dr.

Baker adopted her written report (Exhibit D-16), and her evidence included the following points: • Cree have been present in the area later known as Saskatchewan for thousands of years. Contact was made with Europeans in the late 1800’s, including missionaries, and fur traders; • Cree is a completely different language family than European English. It would be difficult to translate complex concepts such as “retroactive payments” or debts from English to Cree. Concepts surrounding governance structure would be even more difficult;

• Dr. Baker also discussed the use of “trade language”, a more limited form of communication. Cree Societies [ 80 ] Although Cree society is matrilineal, hunting boss complexes play a very important role. Social structure is organized by hunting groups, practices and territories. The hunting boss is responsible to ensure a territory is well managed: there are spiritual and legal protocols to be followed and respected, in order to ensure future abundance. Chiefs would have been the hunting bosses. The hunting bosses manage resources, paying attention to the land itself as well as the animals.

It is a system of reciprocal communication. Hunting territories were based on familial care as opposed to a concept of ownership, and responsibility for territories would be passed down to their children. Cree people would respect a hunting boss who was good at managing their territory. There can be retribution for mismanagement both from the community as well as spiritually. Cree Law [ 81 ] Cree legal systems are based on respect, reciprocity, and kinship. Dr. Baker expressed the opinion that one cannot have a cultural group without some form of laws.

Cree oral traditions contain the laws and are shared with the community. These rules contain measures for retribution in the event of transgression. Cree laws cover religion, ceremony, and butchering practices. These Cree laws have been in place for thousands of years, and are still present and observable today. [ 82 ] If an animal (i.e. moose) presents itself, there is virtually an obligation to hunt it, to avoid disrespecting it at a spiritual level. It would be a violation of the rules to hoard meat and not share with the community or those in need.

It amounts to a survival mechanism for the community, that is still practiced today. Transgression of the rules can include retribution including gossip, public shame, or ostracization. Moose [ 83 ] Moose are a “cultural keystone species” to Northern Cree people. Moose are central to the group’s survival and functioning, both in terms of being a main food source, as well as serving a spiritual and ceremonial importance. [ 84 ] Humans have a responsibility to continue the cycle of reciprocity between human and animal (i.e. hunting). It creates a system of sustainability, and prevents overharvesting.

It also promotes egalitarian food distribution. Moose are inseparable from Cree society. If the system of reciprocity is disrupted, the people will experience retribution (from nature), loss of identity and the inability to help others in their community. Dr. Philip McLoughlin [ 85 ] Dr. McLoughlin was qualified as an expert in the behaviour, management and status of cervid populations (including moose) in Saskatchewan, the factors that impact population levels and the efficacy of conservation measures. [ 86 ] He adopted the contents of his report, Exhibit D-19. Dr.

McLoughlin explained the Wildlife Management Zones in Saskatchewan, Moose Management Units (MMUs), and particularly WMZ 69 and MMU1 (the area surrounding BILCN) which both encompass the area of BILCN, which is the subject of this trial. [ 87 ] He testified that across all provincial MMU’s combined, moose populations had suffered a broad-scale decline of roughly 30% since 2000, however, in MMU1, the moose population was generally thought to be secure, and had suffered negligible decline if any.

In his opinion, the primary threats to the moose population in the area was from climate change, habitat change, and chronic wasting disease, not hunting. In his opinion, hunting in the area remained sustainable, and in fact, in 2021 the Province had authorized 25 additional tags for hunting moose – the only MMU to see an increase in moose hunting opportunities. He concluded from that, that the Province believed the area was able to sustain additional hunting pressure, in addition to any existing authorized hunting of moose. [ 88 ] In

summary, Dr. McLoughlin expressed the following opinions:

The capacity of RCGPs to serve as a conservation tool is not established in the literature and their utility remains unknown; Moose are highly adaptable, and will avoid risky areas, including roads or areas where hunting occurs, but that avoidance is a matter of degree, as moose may still cross and/or be found near roadways; He testified that measures like seasonal restrictions or bag limits would have a greater impact as a conservation measure than RCGPs; A limitation of the information he relies on to draw conclusions is “the general lack of recent survey data across the Boreal Plains, especially in Western Saskatchewan”.

Notably, data from a recent survey of moose populations in WMZ 55 in February 2022 was not available to him in time for his report; The Wildlife Act protects moose by a variety of measures, including through general wildlife protections … [including] restrictions or prohibitions on interfering with wildlife by provoking, capturing, killing, harassing, wildlife except where licenced for the purpose; Saskatchewan is not entirely alone in employing the RCGP concept: Alberta has Road Corridor Wildlife Sanctuaries (lands within 400 yards of the centre line of designated roads).

Similar concepts also occur in Manitoba and British Columbia; His research regarding the purpose of RCGP creation showed “a desire to reduce instances of road hunting with the belief that this would benefit conservation of large game species, especially moose; There is a positive relationship between the density of moose with density of roads: 92% of moose killed were taken within 1 km of a road, and without road access, moose were much less likely to be hunted; Mortality sites of hunted moose are expected to be associated with linear features of access, like roads and trails; He could not state, unequivocally, that RCGPs played no role in effective moose conservation, but rather that it was a matter of degree of effectiveness. [ 89 ] With respect to the weight of Dr.

McLoughlin’s evidence, particularly as it pertained to the stability of moose populations, the history and/or efficacy of RCGPs in Saskatchewan, the Court found it curious that the witness would base his opinion on indirect sources rather than more direct sources of information.

For example, he contacted Mike Gallup, retired Saskatchewan moose biologist, rather than contacting the current moose biologist, Gerry Kuzyk (a witness in these proceedings, and co-author of a paper relied upon by McLoughlin, assessing moose attraction to roadways). [ 90 ] Equally, he made no effort to contact or interview retired wildlife biologist Ed Kowal, the direct architect of the RCGP program in Saskatchewan, although he admitted “his name rang a bell” during cross-examination. These rather significant omissions again undermine the weight to be attached to Dr.

McLouglin’s testimony where it is in conflict with more direct sources. Emily Boak [ 91 ] Emily Boak testified as an expert witness in spatial and geographic information system (GIS) mapping, and the analysis of geospatial data with respect to impacts on landscape and wildlife habitat in relation to the exercise of Treaty and Aboriginal rights. [ 92 ] Ms. Boak provided evidence, through the use of GIS mapping, that explained landscape disturbances in the traditional territories of BILCN.

Notably, the boundaries of the traditional territory were provided by Chief Sandfly and not independently verified through any other source. Crown counsel, in his cross-examination of Chief Sandfly, however, did have him outline on Exhibit D-3 his understanding of the traditional territories of BILCN.

[ 93 ] Landscape disturbances were defined by Ms. Boak as including mines, pipelines, seismic lines, agriculture, forestry harvest areas (cutblocks), landfills, industrial facilities, well sites and roads. Also included was the Cold Lake Air Weapons Range. [ 94 ] Ms.

Boak concluded that of the area demarcated as traditional territories by the accused, only 29.8 % were more than 250 meters from a landscape disturbance or restriction (when excluding water bodies), and that figure dropped to 18.3% when using a radius of 500 meters. [ 95 ] These landscape disturbances have a negative effect in terms of changes in predation, animal behaviour and animal population in the area, and negatively impacts the land available for harvesting for members of BILCN. [ 96 ] It was unclear from Ms.

Boak’s evidence as to whether the removal of the East/West RCGP would have any impact on BILCN hunting opportunities, given that the East/West road would still, per her testimony, qualify as a landscape disturbance. (iii) Elder Evidence Charlie Sandfly [ 97 ] Mr. Sandfly was called by defence as the first of several Elders to testify.

Of note, he is also the older brother of the accused, Chief David Sandfly, a factor not disclosed at the outset of his evidence, but rather learned upon questioning from the Court. [ 98 ] He testified that he is a member of Big Island Lake Cree Nation, age 71 years, and has lived on the reserve his entire life. As an Elder he holds knowledge, and helps out people by giving direction. He still hunts, and has been hunting since age six or eight, with his learning coming primarily from observing his father.

He described how hunters would know what time of the day or year to go hunting, and how they would track a moose. If presented with the opportunity to take a bull moose or a cow moose, he would choose the bull moose. This would allow the cow moose to have more babies and help preserve the population. Hunting is used to support the family, and he does not hunt for sport. He testified that non-Indigenous hunters leave the meat and simply take the head as a trophy. Indigenous hunters take everything and use it. He described getting the moose, cutting up the meat, and supplying families in the community with meat.

Distribution is based on need. The moose nose and tongue, as well as some portions of the meat, are used for ceremonial purposes. He indicated that he does not follow prescribed hunting seasons as he is a Treaty Indian. He hunts as a means of survival, and estimated he takes one to two moose per year. [ 99 ] He described hunting in his fur block or traditional territory, the boundaries of which he defined as extending to the air weapons range in the West near the Alberta border, Waterhen Lake to the west, and the Beaver River to the south. He did not describe the northern boundary.

He indicated that he does not hunt in the fields and that the moose populations seem to have been declining. He hunts to help feed his community. With respect to the ceremonial aspect of hunting, he indicated that he prays first "in my own beliefs”. If he is successful in his hunt, he kills the moose, skins it at the scene, and then hauls it out by hand to the road to take home and cut up. The meat is then smoked for one to two days. People will come and ask for the meat, and he does not sell the meat, but rather gives it away as that is the custom.

He testified that the Chief is a good hunter. [ 100 ] When asked what the consequences would be if a band member shot a moose and simply left it, his response was “my community doesn’t do that. They know”. When asked about consultation for the Road Corridor Game Preserve, he testified that once, government officials came to the band office, but the community said that they did not want the signs put up. They were never informed as to why the signs were necessary, but rather government tried to convince them, but they said no. [ 101 ] Under cross-examination Mr.

Sandfly testified that other Indigenous communities were coming in and hunting on their (BILCN) lands including members of Canoe Lake. He does not hunt in the Air Weapons Range as it is too dangerous, and hunting is not allowed there. He agreed that the East/West road made it easier to access moose for hunting. When asked if he had a firearms licence he

indicated that he does not. Ronald Pachapis [ 102 ] Mr. Pachapis was the second Elder called. He has lived his entire life in BILCN. He resides there with his family and has just recently become an Elder. He has hunted moose since the late 70s or early 80s. His grandfather and uncles taught him how to hunt and he started in his twenties. [ 103 ] He described hunting in Meadow Lake Provincial Park as well as the BILCN fur block area. He said the moose are not as visible on the roadways as they used to be due to the logging trucks in the area.

He does not hunt in camping areas, and tries to hunt away from populated areas. He described the expense of groceries currently, and how moose meat was important to their community for survival. He described there being some Chiefs in the past who did not hunt. Remarking on differences today, Mr. Pachapis stated that now, band members go hunting in a vehicle. Cultural activities are taught in the schools by the Elders.

This is called land based schooling and each school gets funding to help teach the children regarding cultural aspects. [ 104 ] When asked about band hunting rules, he described basic firearm safety: learning not to load your firearm ahead of time, and not loading or carrying a loaded firearm in the vehicle. He indicated he never learned anything about moose populations from his community, but rather received that information from SERM conservation officers. If presented with a choice between shooting a bull or a cow moose, he would choose the bull, as the cow could be pregnant.

He does not shoot cow moose in the spring or the fall due to mating and birthing seasons. After shooting a moose he would slit its throat and start skinning it on the spot. He would then quarter the moose and haul it back. Sometimes he would take the hide, sometimes he would leave it in the bush. He would share meat with families in the community that needed it. He would never charge people for the meat as it is free for people in the community. He only takes approximately one moose per year. [ 105 ] Mr. Pachapis described how the whole moose is sacred, including the tongue and nose which are used for feasts.

Those parts could be fed to dancers and singers at the feast, and this is important to their ceremonies. [ 106 ] When asked about the consequences of killing a pregnant cow moose, or shooting a moose and leaving it at the scene, Mr. Pachapis stated “I have no idea what the consequences would be". If he saw a person engaging in this type of behaviour, he would tell them not to do it, but if they did, he would take the meat. When asked how the community would react to such behaviour, he indicated that word would travel quickly but that others “would want the meat”.

He described how the moose know that the hunters are coming and will offer their body to them. Some band members felt it was important to smudge the moose body when it was killed. [ 107 ] Regarding the East/West RCGP, he does not know when it was established. He was not consulted prior to its creation, nor did he attend any meetings. He said SERM would come and meet with them regarding moose population numbers, but not necessarily about the RCGP signs that were put up. He still hunts despite those signs because he wants to put food on the table.

He also described people coming from other communities to hunt on their (BILCN) traditional lands, including Indigenous people from Patuanak and Canoe Lake. William Sundown [ 108 ] Mr. Sundown is 67 years old and has worked with the BILCN band his entire life. He has lived at BILCN for approximately 30 years. To him, being an Elder means learning from how you were brought up, sharing the wisdom that you have personally gained, and helping people with their troubles. Elders also have a responsibility to participate in ceremonies such as the Ghost Dance, Sun Dance or Chicken Dance. Mr.

Sundown observed that there was a difference between knowledge and wisdom. His role was to help teach others, and he talked about his band’s connection to nature and its openness, indicating “that’s who we are”. Mr. Sundown talked about the fact that everything in nature has a spirit, including rocks, trees, and animals. [ 109 ] Mr. Sundown hunts moose, going out approximately one time per year now. He indicated that Elders would sometimes ask other band members to hunt, for example, to prepare for a feast. He testified that there are rules for hunting including what to hunt for, and when to hunt.

He provided the example of not killing moose in the spring, as the females might be pregnant. This is done to sustain the life of the moose population. He also talked about learning hunting safety including not loading your firearm until you are ready to use it, especially if you are hunting with others. He talked about the importance of the moose nose and the intestines being given to Elders for use in ceremonies. These are special items to the BILCN. Mr. Sundown remarked that band members will use the nose to make soup.

The purpose of the feast is to thank the Creator for the life you have taken (the moose), and to their forefathers for the knowledge to aid in survival and wisdom. He indicated that moose is not always served at feasts, but if it is served, it would be served first. Whoever hosts the feast, prepares the meat. Meat from the moose is either dried or smoked, and eaten on special days. He gives

meat away, and never charges for meat saying “I don’t see it that way”. Moose meat is shared with others outside of the immediate family if there is enough, including sharing with the elderly, widows, or those with large families. [ 110 ] Mr. Sundown hunts in BILCN traditional territory, including Meadow Lake Provincial Park. Mr. Sundown strongly felt that there were no boundaries to BILCN hunting territory, although he would ask farmers for permission to hunt on their land. However, he felt a moose in a field is not a hunting challenge, and he does not consider that hunting.

Rather, he talked about walking into the bush to hunt, and leaving his car on the road. He would sometimes hunt with young people, including his own children, to teach them how to hunt including duck and moose, fishing, the dangers of the muskeg, and safety-oriented hunting. [ 111 ] The only restriction Mr. Sundown felt applied to his hunting is not hunting during the birthing or pregnancy seasons. He hunts moose to save money: it is lean meat, it is natural, and better for one’s health. He felt moose hunting was important to his culture and it was important for his community to know how to feed themselves.

He indicated his Nation has been hunting moose for a long time, since before Treaty. He testified that moose hunting is a backbone of their culture. How you treat nature is how you treat yourself. Mr. Sundown indicated that the Chief would tell people where to go hunting, and sometimes band members would ask the Chief for meat for a feast or ask him to go hunting on their behalf. He indicated that personally he does not feel “bound” by teachings, but rather they come naturally. He does not hunt for sport.

If people were hunting in a wrongful fashion, he would tell the leaders of the Nation, or alternatively law officers and have them charged. [ 112 ] When describing his Treaty hunting rights, he indicated that he could not describe them other than to say that he hunts in the band’s territories, and there are no boundaries or laws affecting his nation as their hunting rights existed before Treaty. He felt that he did not need government to teach him about “natural law”. [ 113 ] With respect to the East/West RCGP, he felt that it was put in place in the 1990s.

He acknowledged that there was consultation between government and the band. He recalls being told that the corridor was being put in for loggers. When asked to describe the Elders’ position on the RCGP, he indicated that the Elders felt hunting should be open but that they would use common sense to not discharge a firearm if someone was there. [ 114 ] He described his observations of the effects of clearcutting happening in their traditional hunting territories, as well as other Nations coming in to hunt in their territories, including Canoe Lake, and Cold Lake.

In his opinion, the moose populations are depleting from 20 years ago. It is harder to hunt now as their habitat is being disturbed. [ 115 ] Under cross-examination, Mr. Sundown acknowledged that members from Loon Lake and Flying Dust also hunt in their territories, and that some people hunt any time of day or season. He acknowledged that he has found animal guts laying on the side of the road in the Fox Lake area, and passed that information on to SERM officers. When asked by the Court why he would report to SERM rather than to the Chief or council, Mr. Sundown indicated “because that’s their job”.

They should be working for us, not against us. That’s how I understand treaty". Louie Bighead [ 116 ] Mr. Bighead spent his teen years being raised in the BILCN fur block by his uncles, and some of his teachings came from them. He also learned when and where to hunt, seasons, and migration patterns from others in the community. As a result, he learned how to live off of, and respect, the land. He is 57 years old, and works at the BILCN school, with the Land-based Learning Program, helping "to teach younger people things about living off the land that their parents are not able to teach”.

He also helps young people with their struggles, including addictions. His goal is to help others live a healthier lifestyle. To him, an Elder is someone who is knowledgeable, and who gives guidance to others. He was elected into band council at age 21. [ 117 ] Mr. Bighead also hunts moose, usually going out in the fall with two of his children. Of the three moose he has killed this year [2022], most of the meat has gone to the school, as he does not keep it. He started hunting around age 10.

He learned firearm safety from his uncles, including how to keep the firearm pointing down, not having shells in the firearm until ready to use it, keeping the safety on, ensuring no one was around when firing, and using a backstop. Firearm safety was clearly important to Mr. Bighead, and he stated that “When you take a life, you can’t give it back”. [ 118 ] His philosophy was that you do not hunt more than you need, and he would help provide for band members, including single mothers with children, and other Elders. As a hunter, he has learned to go certain places at certain times of the year.

Animals migrate, so he knows where to look for them. If the moose are in a group, he would only take one moose and he would try for the healthiest one. He would not shoot at the group. He would not hunt pregnant moose as they are reproducing. He testified that there are many moose in his area currently. He lives at the edge of BILCN traditional lands, but could not describe the boundaries of those lands with any degree of precision. He opined the loss of hunting from clearcutting occurring in the traditional hunting territories. He also testified that other

northern Indigenous communities were coming to hunt in their lands. He did not approve of the way they hunt, including jumping out of vehicles and firing, and roadside hunting. Some of the people were coming from the Canoe Lake and La Ronge areas. [ 119 ] When there is a successful hunt, all parts of the moose are used. He would give hides to the schools to learn about hide tanning. Some of the moose parts would be given to band members that conduct ceremonies, including intestines, hearts, and the nose. These are all considered sacred parts, as are the liver and lungs. The brain is used to tan the hide.

The meat itself is smoked. Mr. Bighead testified he would never sell the meat, but rather gives it away: “you don’t sell to your family, that’s how I was taught”. He also stated “I feel bound by these teachings”, and he takes time to teach the young people of the community how to hunt, passing on the teachings he has learned. As he indicated, this has been the BILCN way of life for generations. He testified that people would ask the Chief to go hunting for them, and this is part of the Chief’s role as a leader.

With respect to any consequences for breaching these rules, he said that they would try and talk to the person about their hunting practices. [ 120 ] With respect to the East/West RCGP, Mr. Bighead clearly recalled that it came into being in the early 90s. He described hearing older band members talking about how they had met with the province, and that the purpose was to curb opportunistic hunting at the side of the road, which he described as having gotten out of hand.

He indicated that some members of BILCN were in favour of the RCGP because of northern communities shooting deer and moose at the side of the road, and leaving them to die. Finally, he talked about how hunting is more difficult now, given the increased presence of quads, snowmobile clubs, outfitters, and predators, all of which are negatively influencing BILCN’s hunting opportunities. Ernest Sundown [ 121 ] Mr. Sundown considers himself a spokesperson for children, and works at the BILCN school. He uses his name to help speak for others. The pipe is important to him as he feels it carries prayers to the Creator.

He described raising his children by himself, as his wife had died seven years ago. He was formerly a Chief of BILCN from 1978 to 2010. He has known the accused, Chief Sandfly, for a long time. When describing BILCN as a whole, he described them as independent: “We don’t accept anything right away". He testified that when he was in leadership, we talked about corridor preserves but never agreed to it. [ 122 ] Although he grew up off reserve, and was part of the 60’s scoop, he never lost his language. He is considered an Elder now. He feels the Elders are responsible for teaching traditions.

Land-based teaching is now standard in all schools, namely teaching younger generations the ways of the land and how to survive. [ 123 ] With respect to moose hunting, it is very important to their community. He considers it central to their Nation and pre-existing any Treaty. The moose has a spirit, as do rocks and trees. Since all life is sacred, when one is taking a moose’s life, there is an obligation to honour that life. Moose meat is to be shared amongst the community, including women and families, particularly mothers or grandmothers with children.

Moose are used in traditional ceremonies, and all parts of the moose will be used: the nose, the tongue and the heart are all used for feasts. Mr. Sundown was adamant that he does not hunt for sport, indicating “it wouldn’t be right". [ 124 ] Regarding moose hunting, moose populations, and conservation, Mr. Sundown indicated that BILCN practices dictated that one would not kill the female, only the male. He also talked about hunters from other communities coming into their traditional lands to hunt: “They take more game than I do". He indicated that these other Indigenous hunters do not ask permission from BILCN.

He also described the effects of clearcutting reducing BILCN hunting opportunities. [ 125 ] Mr. Sundown was emphatic in his view of Treaty rights, that they are over and above the rights BILCN possessed prior to the signing of any treaty. He described the irony of the Province owning more of the land than Indigenous people do. [ 126 ] Under cross-examination, he confirmed that while he was Chief of the BILCN there were multiple consultation meetings regarding the RCGPs, including one he personally attended on May 1, 1997 with SERM representatives. Moise Littlespruce [ 127 ] Mr.

Littlespruce is 77 years old, and is an Elder at BILCN. He described an Elder as being one who is wise in the ways of life, and who can pass on life experiences. He indicated that Elders are treated well, and with respect. He still hunts to this day although he has not had much luck this year [2022]. He testified that normally a family would take three to four moose in a year, depending on their

luck. He started hunting at age 10 or 11. He learned his hunting skills from his father. Moose locations depend on the time of the year, and he will hunt in all seasons. [ 128 ] With respect to his Treaty right to hunt, he interprets it as being year-round and that he can hunt at any time, hunt on Crown land without asking, and can trap there as well without a licence. In his opinion, he only needs a licence to sell fur. He learned hunting safety from his father, including how to carry a rifle, to use the safety, and to never shoot from behind someone else.

He described the bush as a safe place to hunt and that one did not hunt near buildings. He teaches younger people in the BILCN community to hunt as well. After a successful hunt, he would give away meat to relatives or those who need it. He does not charge for the meat indicating “it’s not in our nature”. One would also share meat with the Elders. [ 129 ] Mr. Littlespruce testified that he would sometimes be asked to hunt by others. This was often for meat to be used in ceremonies. He described how moose have a spirit. He feels an obligation to treat the moose with respect.

Specifically, one shoots only what they need. One uses all parts of the moose, even the bone marrow: Bones would be used to scrape hides, and the brain used to tan hides. [ 130 ] If a young hunter were to step outside of these traditions the Elders would talk with them, or alternatively report them to a conservation officer. He describes how he hunts all over the traditional territories.

All band Chiefs (not just the accused) would undertake hunting requests on behalf of members of the community, as it is their responsibility to provide for their community. [ 131 ] With respect to preservation, he has a policy to not shoot the younger moose until they have had a chance to breed. In his estimation, this helps preserve the population. He indicated that sometimes he would shoot a “fat” moose for ceremonies and that they would use the nose, intestines, and heart. Under cross-examination, Mr.

Littlespruce left the Court with the distinct impression that if necessary for ceremonial feasts, he would shoot a pregnant moose. He described moose hunting as central to the BILCN way of life. Their community does not hunt for sport. He described how their territories have suffered, there are fewer animals, more seasonal hunters, and other communities coming to hunt in the BILCN territory without permission. He also describes that logging and hunting is interfering with their territories. [ 132 ] With respect to the East/West (Road Corridor Game Preserve) he testified that “[he was] not familiar with it".

He was not sure when it was created, yet also indicated that the band was not consulted about it. He did testify that the band was against the corridor game preserves because they went against Treaty rights. Mr. Littlespruce later went on to say that he was part of conversations regarding the RCGP, but that it was only supposed to be on the Muskeg Lake Road. The Provincial government then put them elsewhere. He also indicated that with changes in leadership, some leaders supported the Road Corridor Game Preserves.

Commentary on the Elder evidence as a whole: [ 133 ] Chief Sandfly, as part of his defence, seeks to introduce the evidence of the above six Elders from BILCN, partly as lay witness evidence, and in part as oral history evidence. On this issue, our Supreme Court, in Mitchell v M.N.R ., 2001 SCC 33 , [2001] 1 SCR 911 [ Mitchell ], has provided direction to trial court judges: [27] Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records.

Recognizing these difficulties, this Court has cautioned that the rights protected under s. 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection … Thus in Van der Peet , supra , the majority of this Court stated that "a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in" (para. 68). [28] This guideline applies both to the admissibility of evidence and weighing of aboriginal oral history ( Van der Peet , supra ; Delgamuukw, supra , at para. 82). (

a) Admissibility of Evidence in Aboriginal Right Claims [29] Courts render decisions on the basis of evidence. This fundamental principle applies to aboriginal claims as much as to any other claim. Van der Peet and Delgamuukw affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in s. 35(1).

This flexible application of the rules of evidence permits, for example, the admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions ( Van der Peet , supra , at para. 62) and the meaningful consideration of various forms of oral history ( Delgamuukw , supra ). [30] The flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not "cast in stone, nor are they enacted in a vacuum"…Rather, they are

animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way. Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it.

Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice. [31] In Delgamuukw , mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact ; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87).

Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge. [32] Aboriginal oral histories may meet the test of usefulness on two grounds. First, they may offer evidence of ancestral practices and their significance that would not otherwise be available. No other means of obtaining the same evidence may exist, given the absence of contemporaneous records. Second, oral histories may provide the aboriginal perspective on the right claimed.

Without such evidence, it might be impossible to gain a true picture of the aboriginal practice relied on or its significance to the society in question. Determining what practices existed, and distinguishing central, defining features of a culture from traits that are marginal or peripheral, is no easy task at a remove of 400 years. Cultural identity is a subjective matter and not easily discerned: see R. L. Barsh and J. Y. Henderson, "The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1997), 42 McGill L.J. 993, at p. 1000, and J. Woodward, Native Law (loose-leaf), at p. 137.

Also see Sparrow , supra , at p. 404; Delgamuukw , supra , at paras. 82-87, and J. Borrows, "The Trickster: Integral to a Distinctive Culture" (1997), 8 Constitutional Forum 27. [33] The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people's history? The trial judge need not go so far as to find a special guarantee of reliability.

However, inquiries as to the witness's ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted. [34] In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts and traditions.

Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non- aboriginal perspective.

Thus, Delgamuukw cautions against facilely rejecting oral histories simply because they do not convey "historical" truth, contain elements that may be classified as mythology, lack precise detail, embody material tangential to the judicial process, or are confined to the community whose history is being recounted. [35] In this case, the parties presented evidence from historians and archaeologists. The aboriginal perspective was supplied by oral histories of elders such as Grand Chief Mitchell.

Grand Chief Mitchell's testimony, confirmed by archaeological and historical evidence, was especially useful because he was trained from an early age in the history of his community. The trial judge found his evidence credible and relied on it. He did not err in doing so and we may do the same. [emphasis added] [ 134 ] The above distilled principles are, of course, also subject to the overarching principle of trial fairness, which encompasses not only the accused, but the Crown as well.

In that spirit, this Court provided a great deal of latitude in an effort to accommodate the cultural, spiritual and testimonial needs of the Elders, including: accommodations made for age, travel, and illness during the course of the trial, smudging in the courtroom where requested, receiving evidence in a circle rather than a traditional courtroom setting, and dispensing at times with some of the more customary colonial trappings of a usual courtroom, including flags and robing. [ 135 ] All Elders provided lay witness testimony regarding their personal experiences and observations, both with respect to life in the BILCN, hunting, the role of the Chief, and the central importance of moose to the BILCN way of life.

As such, the Court has no hesitation in accepting that the Elder evidence, taken collectively, is capable of both providing some evidence of ancestral practices, as well as an Indigenous perspective on the hunting rights asserted by Chief Sandfly. In that sense, the proposed evidence has some utility. [ 136 ] The thornier issue is the reliability of the evidence. The Court has precious little evidence regarding each Elder’s training in learning the specifics of BILCN oral history, for example: how they go about preserving it from generation t

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