R v Green, 2022 SKCA 92

Court of Appeal for Saskatchewan Docket: CACR3475 Citation: R v Green, 2022 SKCA 92Date: 2022-08-11 Between:Albert Edward Green and Blair S. HillAppellants (Respondents)AndHer Majesty the QueenRespondent (Appellant)Before: Richards C.J.S., Whitmore and Barrington-Foote JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Chief Justice Richards and The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Mr. Justice WhitmoreOn appeal from: 2021 SKQB 187, ReginaAppeal heard: November 9, 2021Counsel: Duston Ernewein for the Appellants R.

James Fyfe for the Respondent Richards C.J.S. and Barrington-Foote J.A. I. INTRODUCTION [1] This case concerns a hunting rights issue grounded in paragraph 12 of the Natural Resources Transfer Agreement (Schedule 3of the Constitution Act, 1930 (UK), 20-21 Geo V, c 26, reprinted in RSC 1985, App II, No 26) [NRTA]. [2] Albert Green and Blair Hill, the appellants, are members of the Six Nations First Nation. They reside in Ontario. [3] The appellants were hunting in a Saskatchewan provincial park and, because of that, were charged with offences under TheWildlife Act, 1998, SS 1998, c W-13.12.

They defended themselves by invoking paragraph 12 of the NRTA. It provides that “[i]n order tosecure to the Indians of the Province the continuance of the supply of game and fish … the laws respecting game in force in the Province… shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right … of hunting,trapping and fishing game and fish for food … on all unoccupied Crown lands and on any other lands to which the said Indians may havea right of access”. [4] The appellants and the Crown proceeded to trial on the basis of a brief Agreed Statement of Facts.

A Provincial Court judge[Trial Judge], relying on R v Frank, (SCC), [1978] 1 SCR 95 [Frank], held that paragraph 12 applied in thecircumstances at hand and acquitted the appellants of The Wildlife Act charges. See: R v Green, 2019 SKPC 44, [2020] 4 WWR 352. [5] The Crown then appealed to the Court of Queen’s Bench. The judge who heard the case [Appeal Judge] found that the TrialJudge had interpreted paragraph 12 of the NRTA too broadly and had thereby erred in acquitting the appellants. See: R v Green, 2021SKQB 187.

The Appeal Judge entered convictions against both men on the basis that paragraph 12 of the NRTA applies only to “Indiansattached to Treaty 2, 4, 5, 6, 7, 8 or 10 lands” (at para 65). [6] The appellants now appeal to this Court. They submit that the outcome of this case is dictated by the Supreme Court’sdecision in Frank, and contend it was the Appeal Judge who misinterpreted the NRTA.

They ask that their acquittals be restored. [7] As explained below, we conclude that Frank is not dispositive of this appeal and that, given the absence of an appropriateevidentiary record to use in resolving the important constitutional issues raised by the appellants, this matter must be referred back to theProvincial Court for a new trial. II. BACKGROUND [8] As noted, the trial went forward on the basis of a very limited Agreed Statement of Facts. No other evidence was presented. [9] The Agreed Statement of Facts provides as follows: 1.

Between the dates October 29, 2017, and October 31, 2017, Darrell Claybren Hill, Albert Edward Green, Albert Raymond Green, andKeelan Edward Green, and between October 28, 2018, and October 29, 2018, Albert Edward Green and Blair S. Hill (collectively “theAccused”) were charged with unlawfully hunting and possessing wildlife contrary to s. 25(1)(a), s. 33(1), s. 41(1), s. 73 and s. 74(2) of TheWildlife Act, SS 1988, c W-13.12. 2.

The Accused are all Indians within the meaning of the Indian Act, RSC 1985, c I-5, resident of the Six Nations First Nation in Ontario,Canada, which is a signatory to the Albany Deed of 1701, otherwise known as the Nanfan Treaty, subject to lands of southern Ontario. 3. At all material times, the Accused assert they were exercising the legal authority to harvest wild game for sustenance, as per their

Map Description automatically generated individual Treaty rights, on lands to which they have a legal right of access. 4. At all material times, the Accused hunted for big game animals for food on private lands west of Rocanville, Saskatchewan, or withinthe Moose Mountain Provincial Park, Saskatchewan. The hunting lands were in either Treaty No. 2 or Treaty No. 4 territories. None ofthe Accused were hunting with valid hunting licences issued by the Government of Saskatchewan. 5.

A map that accurately shows the historical Treaty boundaries in Canada is appended to this Agreed Statement of Facts. [10] In addition, there is no dispute about the broad outlines of the historical context in which the NRTA, and paragraph 12 of theNRTA in particular, came to be enacted. Between 1871 and 1923, the federal government concluded 11 numbered treaties with variousIndian bands in the western part of Canada. As explained in R v Badger, (SCC), [1996] 1 SCR 771 at para 39 [Badger],the objective of this treaty-making exercise was “to facilitate the settlement of the West”.

In general terms, the treaties involved thesurrender by the Indian signatories of their rights, title and privileges in the land described in the treaty in exchange for variouscommitments made by the Crown. These commitments included, for example, the provision of farm equipment, education, ammunition,land for reserves, and assistance in the event of famine. Guarantees of harvesting rights were included in all of the Numbered Treatiesexcept Treaty 1 and Treaty 2.

By way of illustration, such rights were expressed as follows in Treaty 6: Her Majesty further agrees with Her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting andfishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by HerGovernment of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up forsettlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereofduly authorized therefor by the said Government. (Emphasis added) [11] The territories covered by the Numbered Treaties do not track provincial boundaries.

Several of the Treaties cover lands in both Saskatchewan and other jurisdictions: (

a) Treaty 2 covers lands in Saskatchewan and Manitoba; (

b) Treaty 4 covers lands inSaskatchewan, Alberta and Manitoba; (

c) Treaty 5 covers lands in Saskatchewan, Manitoba and Ontario; (

d) Treaty 6 covers lands inSaskatchewan and Alberta; (

e) Treaty 7 covers lands in Saskatchewan and Alberta; (

f) Treaty 8 covers lands in Saskatchewan, Alberta,British Columbia and Northwest Territories; and (

g) Treaty 10 deals with lands in Saskatchewan and Alberta. A map showing provincialand treaty boundaries is set out below: [12] In canvassing the main features of the relevant background, it is also necessary to note that the three prairie provinces, Alberta,Saskatchewan and Manitoba, were not given ownership of Crown resources when they entered Confederation. The NRTA and itscounterparts in Alberta and Manitoba were enacted to remedy that situation.

They were confirmed and given constitutional status by theConstitution Act, 1930. [13] The NRTAs, in addition to transferring natural resources, dealt with a variety of Canada’s contractual and other obligationsaffected by that transfer, a point emphasized in R v Blais, 2003 SCC 44 at para 10, [2003] 2 SCR 236 [Blais]. In particular, all three

NRTA s contained provisions, under the heading “Indian Reserves”, dealing with the implications of the agreements for matters related to Indians. Paragraph 10 of the Saskatchewan and Alberta NRTA s (paragraph 11 of the Manitoba NRTA ) provides that reserves will continue to be vested in the federal Crown. Paragraph 11 of the Saskatchewan and Alberta NRTA s (paragraph 12 of the Manitoba NRTA ) speaks to the application of the rules set out in a 1924 agreement between Canada and Ontario to Indian reserves.

Paragraph 12 of the Alberta and Saskatchewan NRTA s (paragraph 13 of the Manitoba NRTA ) deals with the harvesting rights of Indians. Paragraphs 10–12 of the NRTA read as follows: Indian Reserves 10.

All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the Province, select as necessary to enable Canada to fulfil its obligations under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof. 11.

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

chapter forty-eight, shall (except so far as they relate to the Bed of Navigable Waters Act ) apply to the lands included in such Indian reserves as may hereafter be set aside under the last preceding clause as if the said agreement had been made between the parties hereto, and the provisions of the said paragraphs shall likewise apply to the lands included in the reserves heretofore selected and surveyed, except that neither the said lands nor the proceeds of the disposition thereof shall in any circumstances become administrable by or be paid to the Province. 12.

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the 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. (Emphasis added) III.

THE TRIAL DECISION [ 14 ] The Trial Judge began his analysis by referring to the Numbered Treaties. He noted that they do not correspond geographically to provincial boundaries and that they feature provisions by which, subject to regulation and saving such tracts as were required for settlement and other similar purposes, Indians are able to hunt, trap and fish.

The Trial Judge then turned to the NRTA and examined some of the case law that has commented on paragraph 12. [ 15 ] In the end, the Trial Judge placed considerable emphasis on the “ordinary meaning” of paragraph 12, noting that there was nothing in its terms that would limit its application so as to exclude the appellants from its reach. He concluded that the appellants were clearly Indian persons coming within the meaning of the phrase “Indians shall have the right” in paragraph 12.

The Trial Judge also placed a good deal of reliance on Frank , a case where a Treaty 6 Indian from Saskatchewan had been able to invoke paragraph 12 of the NRTA to defend against a charge laid against him when he was hunting for food on Treaty 6 lands in Alberta. The Trial Judge rejected the Crown’s argument that the application of paragraph 12 should be limited to Indians residing within the territories of the Numbered Treaties, saying that any such reading of paragraph 12 bore no relationship to its wording. [ 16 ] The Trial Judge acquitted the appellants on all charges. The Crown appealed. IV.

THE APPEAL DECISION [ 17 ] The Appeal Judge found that the Trial Judge had taken the wrong interpretive approach when examining paragraph 12 and had thereby read it too broadly. In this regard, the Appeal Judge relied heavily on the Supreme Court’s decision in Blais .

He proceeded on the basis that, in interpreting paragraph 12, it was necessary to consider its broad purpose, its historical context, its ordinary meaning, and the philosophy or objectives animating it. [ 18 ] In examining the historical purpose of paragraph 12, the Appeal Judge referred to the fact that the NRTA s were designed to put the prairie provinces on an equal footing with other provinces, as per what had been said in Blais , and that the Agreements were largely concerned with the transfer of contractual and related liabilities from Canada to the provinces.

He then referred to the heading “Indian Reserves” that proceeds paragraphs 10–12 of the NRTA and suggested, as per Blais at paragraph 30 , that this heading had some influence on the

interpretation of paragraph 12. In this context, he quoted the passage in Blais where the Supreme Court had said that the heading “Indian Reserves” militated against construing the term “Indians” more broadly than was otherwise suggested by the historical context of the NRTA and the common usage of the term at the time of the NRTA ’s enactment. [ 19 ] Next, under the heading “Philosophy Animating and Meaning of

Section 12”, the Appeal Judge referred to Frank as a “useful starting point” and quoted the observation of Dickson J. (as he then was) that “the overall purpose of para. 12 of the Natural Resources Transfer Agreement was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food” ( Frank at 100).

Then, after noting that the NRTA had curtailed commercial hunting rights on the one hand but enlarged rights to hunt for food on the other, the Appeal Judge returned to Frank and quoted the words, referred to above, where Dickson J. had said “Indians within

the boundaries” in paragraph 12 meant “ all Indians within the boundaries of Alberta, and not just some of the Indians within such boundaries” (emphasis in original, Frank at 102). Next, after setting out a passage from R v Blais , 2001 MBCA 55 at para 84 , 198 DLR (4th) 220, where the Manitoba Court of Appeal had cautioned against making “a dramatic and unprecedented alteration to existing rights by enlarging the definition of ‘Indian’ to include another distinct aboriginal group”, the Appeal Judge concluded that the Trial Judge had given paragraph 12 an

interpretation that was “too generous, if not extravagant” (at para 64). [ 20 ] In the end, the Appeal Judge concluded as follows: [65] When a holistic approach to the

interpretation of s. 12 of the NRTA is employed, one which accounts for the section’s historical background, the broad purpose animating s. 12, and original meaning of the language used in that section, it reveals that “Indians” who are entitled to its benefits are those subject to the Treaties which cover the geographical areas of the three prairie provinces.

I agree with Crown counsel that this means only Indians attached to Treaty 2, 4, 5, 6, 7, 8 or 10 lands may hunt for food in Saskatchewan regardless of where they ordinarily reside without complying with the provisions of the WLA . (Emphasis added) [ 21 ] The Appeal Judge explained this result as being based on three considerations: [68] First, the three NRTA s are constitutional documents which have application only in the three prairie provinces to which they apply. They do not pertain to, or operate in, other Canadian provinces and territories.

Nor do they extend benefits to Indians from First Nations who are signatories to treaties like the Nanfan Treaty which cover lands outside the geographical boundaries of those provinces. This is the plain and ineluctable reality flowing from the historical context surrounding the negotiation, ratification, and, ultimately, constitutionalization of these documents. [69] Second, the principal effect of s. 12 of the NRTA was to merge and consolidate the right to hunt found in the numbered treaties which covered lands falling within the boundaries of the prairie provinces.

It follows from this that a treaty Indian under those numbered treaties may hunt for food in Saskatchewan by virtue of s. 12. [70] Third, the original meaning of “Indian” found in s. 12 must be ascertained within this context. It does not follow that the definition of “Indian” found in the Indian Act from time to time dictates the meaning of “Indian” in that provision. This would effectively consign the

interpretation of the constitutional benefits found in s. 12 to the vicissitudes of statutory amendment. Such an approach is inimical to orthodox constitutionalism. See, especially: Grumbo at para 24, and Blais CA at para 71 . [ 22 ] The Appeal Judge set aside the verdicts of acquittal entered by the Trial Judge and substituted convictions in their place. He did not explain what it would mean for an Indian to be “attached” to Treaty 2, 4, 5, 6, 7, 8 or 10 lands. V. LEAVE TO APPEAL [ 23 ] This appeal is taken pursuant to s. 839 of the Criminal Code .

As such, the appellants are restricted to advancing questions of law alone and they must obtain leave to appeal. The governing authority in the latter regard is R v Bray , 2017 SKCA 17 . It specifies that leave should be granted only where the proposed appeal is compellingly meritorious or where it raises issues of general importance. [ 24 ] We have no difficulty concluding that leave to appeal should be granted. The

interpretation of paragraph 12 of the NRTA raises a clear question of law. That question is self-evidently of broad significance. VI. ANALYSIS [ 25 ] The appellants make three arguments in an effort to overturn the decision of the Appeal Judge. They submit that: (

a) the outcome of this case is controlled by Frank and that the Appeal Judge erred by failing to follow it; (

b) the Appeal Judge erred in his application and understanding of Blais ; and (

c) the Appeal Judge’s

interpretation of paragraph 12 of the NRTA is incorrect and creates an absurd result. We will deal with each of these submissions in turn. A. Does Frank dictate the result in this case? [ 26 ] As noted, the appellants contend Frank is fully dispositive of this case and that, as a result, their appeal must be allowed. They suggest, correctly, that the Appeal Judge did not deal directly with the question of whether Frank means they can claim the benefit of the NRTA . We turn, therefore, to the particulars of that case. [ 27 ] Mr.

Frank lived on the Little Pine Reserve near North Battleford, Saskatchewan, a place falling within the territory covered by Treaty 6. He was found in possession of a moose near Nordegg, Alberta, and charged with unlawfully having that meat in his possession contrary to the terms of the Wildlife Act of Alberta, RSA 1970, c 391 . Nordegg also lies within Treaty 6 territory. It was common ground that Mr. Frank had hunted the moose for food. [ 28 ] The

interpretation of paragraph 12 of the NRTA was at the heart of the proceedings against Mr. Frank. The Crown took the position that he was not entitled to rely on paragraph 12 because the phrase “the Indians of the Province” in that paragraph refer to the same people as does the phrase “Indians within the boundaries thereof”, i.e., Indians resident in Alberta. The result, argued the Crown, was that “the said Indians” who were assured of hunting, trapping and fishing rights in paragraph 12 were only those Indians who were resident in Alberta. [ 29 ] Justice Dickson wrote for the Supreme Court in rejecting this line of argument. In so doing, he concluded as follows at pages 101–102:

The Appellate Division held further, however, that to open up the right to hunt and fish for food to all Indians, wherever they mightnormally reside, could operate to defeat the expressed purpose of the paragraph, i.e. to secure to the Indians of the Province thecontinuance of the supply of game and fish. Therefore the

section must be read as denying the appellant the right to hunt as he did inAlberta. With respect, I find it impossible to accept such a construction. On this

interpretation, para. 12 of the Agreement would have theeffect of depriving the appellant of both his treaty right to hunt on Treaty No. 6 lands in Alberta and the protection of the provisocontained in the paragraph while in Alberta. I do not think “Indians of the Province” and “Indians within the boundaries thereof” refer to the same group. The use of different languagesuggests different groups. In my view, “Indians of the Province” means Alberta Indians.

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

The words “Indians within theboundaries” mean all Indians within the boundaries of Alberta, and not just some of the Indians within such boundaries. (Italics emphasis in original, underline emphasis added) [30] We acknowledge that, on its face and read in isolation, the sentence underlined in the foregoing passage can be taken as beingbroad enough to cover the circumstances of the appellants. After all, they are Indians and they were hunting within the boundaries ofSaskatchewan for food. [31] However, that said, we do not take Frank as having decided the issue at play in this appeal. That is so for two reasons.

Tobegin, we do not understand Dickson J. to have addressed the question of whether the NRTA applies to non-resident Indians who did nothave harvesting rights pursuant to a treaty that includes territory in Alberta. This group would include both treaty Indians and non-treatyIndians. Further, even if Frank does speak to the rights of Indians in such circumstances, that aspect of the decision is best seen as non-binding obiter dicta. Let us develop all of this a bit further. [32] As for the proper

interpretation of Frank, six considerations suggest that Dickson J. did not purport to speak to the issue raisedby the appellants in this appeal. First, the question before the Court was whether Mr. Frank’s right to hunt in Treaty 6 territory in Albertahad been, in effect, extinguished by the Alberta NRTA.

This is a different question than the one in issue here: whether the NRTA createsrights to hunt, fish and trap for food for all Indians. [33] Second, near the beginning of his decision in Frank, Dickson J. concluded that “the overall purpose of para. 12 of the NaturalResources Transfer Agreement was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians” and that, ofequal importance, there had been a desire to “re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt andfish for food” (at 100).

In light of this, it seems unlikely that Dickson J. intended to decide the rights of Indigenous groups who did nothave harvesting rights that were directly impacted by the NRTAs and who were not parties in the proceedings before the Court. [34] Third, reading Frank as a whole, it is apparent that Dickson J. was focussed on existing treaty rights and the extent to whichthey might be impacted by provincial boundaries. Thus, in rejecting the narrow construction placed on paragraph 12 by the AlbertaSupreme Court, he said, “On [the Alberta]

interpretation, para. 12 of the Agreement would have the effect of depriving the appellant ofboth his treaty right to hunt on Treaty No. 6 lands in Alberta and the protection of the proviso contained in the paragraph while in Alberta”(at 101). Similarly, in the penultimate paragraph of his decision, Dickson J. said this: I do not believe that para. 12 was ever intended to place Indians resident in Alberta in a position of advantage, or of disadvantage, vis-à-visIndians normally resident elsewhere, or to fragment treaty areas by provincial boundaries.

Nothing but the most compelling languagewould justify such a construction.

It is perhaps of interest that of the eleven numbered treaties which were entered into by the Governmentof Canada with the Indians, virtually all cross provincial boundaries. (at 103) The sentence from Frank relied on by the appellants, “[t]he words ‘Indians within the boundaries’ mean all Indians within the boundariesof Alberta, and not just some of the Indians within such boundaries” (emphasis in original, at 102), must be read against this backgroundand in this context. [35] Fourth, in Kruger v The Queen, (SCC), [1978] 1 SCR 104, an Aboriginal hunting rights case from BritishColumbia released on the same day as Frank, Dickson J. declined to deal with issues of Aboriginal title that had not been placed directly inissue by the appellants.

It would seem unlikely for him to have taken that cautious approach in Kruger but, at the same time, to haveintended to resolve issues in Frank that were not raised by the facts of that appeal. [36] Fifth, as the Crown points out, if Dickson J. had intended the expansive meaning of Frank advocated by the appellants, hepresumably would have reflected that meaning in his subsequent decisions dealing with the NRTAs.

However, in The Queen v Sutherland, (SCC), [1980] 2 SCR 451 at 460, Dickson J. referenced Frank by quoting from the passage which described the overallpurpose of paragraph 13 of the Alberta NRTA as being the “merger and consolidation of the treaty rights theretofore enjoyed by theIndians” and a desire to “re-state and reassure to the treaty Indians” their continued enjoyment of the right to hunt and fish for food.Similarly, in R v Moosehunter, (SCC), [1981] 1 SCR 282 at 293, Dickson J. stated that “[t]hrough the Natural ResourcesAgreement, the federal government attempted to fulfil their treaty obligations to the Indians”. [37] Sixth and finally, the Supreme Court, in other decisions, has not described Frank as having the broad scope favoured by theappellants.

For example, in Blais, dealing with paragraph 13 of the Manitoba NRTA (the equivalent of paragraph 12 of the NRTA), theCourt cited Frank, at paragraph 32, for the proposition that paragraph 13 was enacted “to protect the hunting rights of the beneficiaries ofIndian treaties and the Indian Act in the context of the transfer of Crown land to the provinces”. See also: R v Horseman, (SCC), [1990] 1 SCR 901 at 914–916; and Badger at paras 7–​8. The only arguable exception to this line of thinking is found in R v Desautel, 2021 SCC 17, 456 DLR (4th) 1 [Desautel].

There, Rowe J. observed at paragraph 42 that Frank had explained that “Indians

within the boundaries thereof” in the NRTA included “‘Indians’ who were passing through the province, not just those ordinarily resident in the province”.

This, however, was in the nature of an unstudied reference to Frank and involved no analysis of it. [ 38 ] To conclude on this point, therefore, we find that, notwithstanding the broad language found in some passages of Dickson J.’s reasons, Frank should not be taken to have decided the issue raised in this appeal. [ 39 ] As mentioned above, there is an additional and alternative way of seeing Frank that leads to the same bottom line, i.e., to the conclusion that it does not control the outcome of the present appeal.

It is this: even if, contrary to the view just expressed, Frank does speak to the rights of Indians in the position of the appellants, any such aspect of that decision is best seen as non-binding obiter dicta and, therefore, as not dispositive of this appeal. [ 40 ] It is well established that not all Supreme Court obiter dicta is binding. This was explained as follows by Binnie J. in R v Henry , 2005 SCC 76 , [2005] 3 SCR 609: [57] The issue in each case, to return to the Halsbury question, is what did the case decide?

Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative.

Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity.

The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience. (Emphasis added) See also: Canada (Attorney General) v Bedford , 2013 SCC 72 at para 42 , [2013] 3 SCR 1101; Windsor (City) v Canadian Transit Co. , 2016 SCC 54 at para 61 , [2016] 2 SCR 617; and R v Vu , 2012 SCC 40 at para 55 , [2012] 2 SCR 411. [ 41 ] As noted, the decision in Frank turns on the question of the applicability of the Alberta NRTA to Indians resident outside of Alberta who had treaty-based harvesting rights in that province when the NRTA s came into force.

The answer to that question is Frank ’s ratio decidendi . There was no need, in Frank , for the Supreme Court to consider the nature of the NRTA rights, if any, held by Indians who had no treaty harvesting rights in Alberta. Those Indians, including non-treaty Indians who may assert Aboriginal harvesting rights, were not parties to the case presented to the Court. As a result, Dickson J.’s comments are obiter dicta to the extent they can be taken as speaking to situations like the one at issue in this appeal. [ 42 ] Several considerations suggest that this obiter dicta should be seen as non-binding: (

a) The reasoning in Frank turned very centrally on a rule of grammar to the effect that a “relative” should refer to the last “antecedent” and the application of that rule to the less than straightforward text of paragraph 12. That

interpretational approach does not fit easily with the one recently mandated by the Supreme Court in Blais . It calls for a consideration of historical context, the ordinary meaning of the language used, and the philosophy or objectives lying behind paragraph 12. (

b) There is nothing in Frank to confirm that the issue presented by the circumstances of the present appeal was in any way pressed, raised or argued before the Supreme Court. (

c) The issue raised by the appellants is a matter of considerable importance involving, as it does, the

interpretation of an important constitutional agreement. It is self-evident that, to the extent reasonably possible and appropriate, courts should ensure that the adjudication of such issues is undertaken with thoroughness and against the background of the necessary evidence.

It appears that no such evidence, particularly historical evidence, was put before the Court in Frank . [ 43 ] Accordingly, and to repeat, if Frank is taken as speaking to the question of how the NRTA applies to Indians resident outside of Saskatchewan (or Alberta or Manitoba) who have no in-province treaty harvesting rights, any such aspects of that decision should be treated as non-binding obiter dicta . [ 44 ] In the end, therefore, Frank does not control the outcome of this appeal. B.

Did the Appeal Judge misapprehend Blais ? [ 45 ] The appellants say the Appeal Judge wrongly relied on Blais to drive the result in this case. [ 46 ] More particularly, the appellants take issue with the line of analysis revealed at paragraphs 63 and 64 of the Appeal Judge’s decision.

There, in coming to his conclusion, the Appeal Judge wrote as follows: [63] Yet, as the Manitoba Court of Appeal in R v Blais , 2001 MBCA 55 , [2001] 8 WWR 231 [ Blais CA ] the decision affirmed in Blais , observed at para. 83 “nowhere” in Badger or “any other Supreme Court decision [interpreting the NRTA ] is it suggested that the term ‘Indian’ was intended to be expanded or enlarged or changed in any way”.

The Chief Justice writing for the court concluded at para. 84 as follows: 84 There is no suggestion in any of the authorities, nor in the evidence before us, that there was an intention to create new hunting and gathering rights for “Indians” (whether or not the term “Indian” includes “Métis”). There is no evidence of a “clear intention” to enlarge hunting rights for food beyond those set forth in Horseman which dealt only with the nature of the existing right to hunt for food and an extension of the geographic area. No new rights were created.

Neither the wording of the NRTA , nor the relevant authorities, nor the historical evidence, support the assertion that there was any intention to alter or modify the treaty right to hunt in any other way. The

purpose of sec. 13 of the NRTA was to change the provisions of the existing treaties with Indians in Manitoba in the limited ways that Ihave just discussed. Its focus was the existing treaties. There is simply no support for the contention that there was any intention to makesuch a dramatic and unprecedented alteration to existing rights by enlarging the definition of “Indian” to include another distinct aboriginalgroup. [Emphasis added by Appeal Judge] [64] Accordingly, and with the greatest of respect, the trial judge by construing s. 12 of the NRTA the way he did gave this

section toogenerous, if not extravagant, an

interpretation because it expands the entitlement considerably beyond its intended purposes, and by doingso over-shoots those purposes. See, especially: Big M Drug Mart at 344; Grant at para 17; and Blais at paras 18 and 40.

Simply put, thisresults in a misinterpretation, and application, of s. 12 which warrants intervention by this Court. [47] In reference to this reasoning, the appellants say that Blais did not hold that “Indian” in paragraph 13 of the Manitoba NRTArefers only to Indians from first nations who were signatories to treaties covering lands in Manitoba and that the Appeal Judge thereforeerred in relying on Blais in the way he did. [48] It might be that the Appeal Judge did not express himself as clearly as he could have but we are not persuaded that the passagesquoted above reveal a fatal error of law.

The Appeal Judge’s real point, as we understand it, was not that Blais had decided individuals inthe situation of the appellants were not Indians within the meaning of the NRTA. Rather, it was that reading paragraph 12 of the NRTA asapplying to such individuals would extend the NRTA beyond its purpose, i.e., beyond its focus on the “existing treaties”.

In other words,the Appeal Judge did not see Blais as directly requiring the result in this appeal but rather as laying out a purpose or objective of the NRTAthat would be offended if the appellants’ arguments were accepted. [49] In the end, this part of the appellants’ submission does not establish that their appeal should be allowed. C. Can the Appeal Judge’s decision stand? [50] The appellants also contend that the Appeal Judge’s decision leads to an “absurd result” in that it creates a new class of rightsholders under the NRTA, i.e., “Indians attached to Treaty 2, 4, 5, 6, 8 or 10 lands”.

They say it must be set aside. [51] This aspect of the appellants’ argument feeds directly into a dilemma. Given that Frank does not dictate the result in this case,it is necessary to interpret paragraph 12 of the NRTA in order to determine whether it applies to Indians in the position of the appellantsand, as part of that, to determine whether it was properly interpreted by the Appeal Judge. The necessary approach to this interpretiveexercise is the one spelled out in Blais.

There, the Supreme Court explained as follows: [16] Against this background, we turn to the issue before us: whether “Indians” in para. 13 of the NRTA include the Métis. The startingpoint in this endeavour is that a statute — and this includes statutes of constitutional force — must be interpreted in accordance with themeaning of its words, considered in context and with a view to the purpose they were intended to serve: see E. A. Driedger, Constructionof Statutes (2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, “Any

interpretation that divorces legalexpression from the context of its enactment may produce absurd results” (The

Interpretation of Legislation in Canada (3rd ed. 2000), atp. 290). [17] The NRTA is a constitutional document. It must therefore be read generously within these contextual and historical confines. Acourt interpreting a constitutionally guaranteed right must apply an

interpretation that will fulfill the broad purpose of the guarantee andthus secure “for individuals the full benefit of the [constitutional] protection”: R. v. Big M Drug Mart Ltd., (SCC), [1985]1 S.C.R. 295, at p. 344. “At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but torecall that the [constitutional provision] was not enacted in a vacuum, and must therefore . . . be placed in its proper linguistic, philosophicand historical contexts”: Big M Drug Mart, supra, at p. 344.

This is essentially the approach the Court used in 1939 when the Courtexamined the historical record to determine whether the term “Indians” in s. 91(24) of the British North America Act, 1867 includes theInuit (Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, (SCC), [1939] S.C.R. 104). [18] Applied to this case, this means that we must fulfill — but not “overshoot” — the purpose of para. 13 of the NRTA.

We mustapproach the task of determining whether Métis are included in “Indians” under para. 13 by looking at the historical context, the ordinarymeaning of the language used, and the philosophy or objectives lying behind it. (Emphasis added) [52] Further, the case law recognizes the significance of the intentions of the “framers” when interpreting constitutional agreementssuch as the NRTAs, as opposed to a provision of the Constitution.

In Daniels v Canada (Indian Affairs and Northern Development), 2016SCC 12, [2016] 1 SCR 99, Abella J. made this point as follows: [44] The Crown, however, submits that including Métis as “Indians” under s. 91(24) is contrary to this Court’s decision in R. v. Blais,2003 SCC 44 , [2003] 2 S.C.R. 236. With respect, I think Blais can be easily distinguished. The issue in Blais was whether aprovision of Manitoba’s Natural Resources Transfer Agreement, which allowed “Indians” to hunt out of season, included Métis.

It is truethat the Court concluded that “Indians” in the Natural Resources Transfer Agreement did not include Métis, but what was at issue was aconstitutional agreement, not the Constitution. This, as this Court noted in Reference re Same-Sex Marriage, 2004 SCC 79 ,[2004] 3 S.C.R. 698, is a completely different interpretive exercise: ... it is submitted that the intention of the framers should be determinative in interpreting the scope of the heads of power enumerated in ss.91 and 92 given the decision in R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44.

That case considered the interpretive question in relation toa particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities. It is thereforedistinguishable and does not apply here. [para. 30]

[53] This reasoning was applied in Desautel at paragraph 42, and in George Gordon First Nation v Saskatchewan, 2022 SKCA 41,where Tholl J.A. summarized the correct approach to the

interpretation of the NRTAs as follows: [54] In

summary, the NRTAs must be interpreted through their own unique historical, contextual and linguistic lens. If genuineambiguity exists, the uncertainty will be resolved in favour of the Indigenous claimants. However, in interpreting the NRTAs, courts are“not free to invent new obligations foreign to the original purpose of the provision at issue” (Blais at para 40) and must pay heed to thecaution that “‘[g]enerous’ rules of

interpretation should not be confused with a vague sense of after-the-fact largesse” (R v Marshall, (SCC), [1999] 3 SCR 456 at para 14 [Marshall]). [54] The problem here, of course, is that the Crown and the appellants proceeded to trial on the strength of a record involvingnothing more than the brief Agreed Statement of Facts reproduced above at paragraph 9. Among other things, no historical informationabout the negotiation, drafting or purpose of the NRTA was put before the Trial Judge even though evidence of this kind appears to beavailable and has been introduced in other cases.

In this regard, we note, for example, the evidence, albeit on a different aspect ofparagraph 12, that was advanced in cases like Blais and R v Grumbo (1998), (SK CA), 125 CCC (3d) 142 (Sask CA)[Grumbo]. We also note an

article entitled “The Forgotten Constitution: The Natural Resources Transfer Agreements and IndianLivelihood Rights, Ca. 1925–1933” (2004), 41-4 Alta L Rev 999, 2004 CanLIIDocs 173, written by Professor Frank Tough. It wasunearthed by the Trial Judge on his own initiative and referred to in his decision. The substance of that

article played no

part in theanalysis of the Appeal Judge or in this appeal. Nonetheless, the existence of the

article suggests there is historical evidence about thedrafting and negotiation of the NRTA that is not before the Court but that might shed light, from one direction or another, on the properinterpretation of paragraph 12. [55] There is case law that is instructive on the question of what an appeal court should do when, as here, it must decide animportant constitutional issue but is faced with an inadequate evidentiary record. Grumbo, although not a perfect parallel to the presentappeal, is especially instructive.

It dealt with a Métis man who claimed the protection of paragraph 12 of the NRTA after being chargedwith an offence described in the ticket as “non-Indian possessing wildlife”. He argued that, as a Métis person, he fell within the meaningof the term “Indian” in paragraph 12 of the NRTA. At trial in the Provincial Court, Mr. Grumbo and the Crown proceeded on a thinfive-paragraph agreed statement of facts. It did no more than lay out the circumstances of the offence and confirm that Mr. Grumbo wasMétis.

The Provincial Court judge found that he was bound by the Court of Appeal decision in R v Laprise, (SK CA),[1978] 6 WWR 85 (Sask CA), which held that “Indian” in paragraph 12 did not include the Métis. Accordingly, Mr. Grumbo wasconvicted. On appeal in the Court of Queen’s Bench, the conviction was overturned on the ground that Laprise was no longer good lawand that the Crown had failed to prove that Mr. Grumbo was not an Indian, this being an element of the offence charged.

On appeal to theCourt of Appeal, Sherstobitoff J.A., Bayda C.J.S. concurring, confirmed that Laprise was no longer good law and that the trial judge wasincorrect to rely on it in entering a conviction. Justice Sherstobitoff then turned to the question of whether the acquittal entered by thesummary conviction appeal judge could stand. He pointed out that the Crown was required to prove Mr. Grumbo was not an Indian inorder to make out the actus reas of the offence and that the failure to do so had made an acquittal the only appropriate option for thesummary conviction appeal judge.

However, Sherstobitoff J.A. chose not to affirm the acquittal. Rather, he wrote as follows in ordering anew trial: [36] There is another reason for a new trial. While the judgment in the Queen’s Bench was based on the facts established by theevidence and affected only Mr. Grumbo, both counsel, as well as the Métis people and the general public have treated it as havingdefinitively settled the question of whether Métis are Indians for the purposes of The Natural Resources Transfer Agreement. On theappeal, counsel for both parties made it clear that they wished this Court to definitively settle the question.

As noted above, there is not asufficient foundation of evidence to do so. That evidence can only be made available through a new trial. (Emphasis added) [56] Other cases have also commented on the need to order a new trial rather than attempting to decide an appeal on the basis of anevidentiary record that is either inadequate or that should first be dealt with by a trial judge. See: R v Sparrow, (SCC),[1990] 1 SCR 1075 at 1120; L’Heureux-Dubé J.’s dissent in R v N.T.C.

Smokehouse Ltd., (SCC), [1996] 2 SCR 672 atpara 81; Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para 108; R v H. (P.) (2000), (ON CA), 143 CCC (3d) 223 (Ont CA) at para 20. Thus, as these authorities illustrate, there is precedent for referring an issue like the oneraised by the appellants back for a new trial. [57] The Crown takes the position that the appellants bore the onus to provide the evidence necessary to enable the Trial Judge tointerpret paragraph 12 in the manner they proposed and that, if they do not meet that onus, their appeal should be dismissed.

In response,the appellants assert that the Agreed Statement of Facts confirmed they were Indians and that, as a result, it was proper for them to haveseen Frank as having decided the issue of the applicability of the NRTA in their favour. Accordingly, the appellants say it was the Crown,not them, that had the onus to lead evidence to disprove their asserted rights. [58] Both sides of this debate have some merit. However, it is not necessary to decide which is correct. This case was not dealt withbelow as one which would or should turn on the question of onus.

Rather, both the Crown and the appellants, although for differentreasons, agreed that it turned on a straightforward question of law concerning the meaning of paragraph 12 of the NRTA. Havingconceived of the issue in that way – which, for the reasons explained above, was based on errors as to the meaning of Frank and as to theevidence required by the governing principles of

interpretation – they presented the Trial Judge with only a very brief agreed statement offacts. The upshot was that the Trial Judge and the Appeal Judge were asked by both parties to make a decision without having the benefitof the necessary evidence.

In our respectful opinion, both judges erred by proceeding on that basis although, in these circumstances, theirerror was entirely understandable. [59] The appellants submitted at the argument of this appeal that, if the Court did not accept their submission that the point raised bythis appeal had been settled by Frank, the matter should be sent back for a new trial in order to provide an opportunity for both them andthe Crown to develop an appropriate evidentiary record. In our view, that is the proper way forward and it is the approach that the AppealJudge should have taken.

This is not a case that affects only the appellants. It concerns the proper

interpretation of a constitutionalagreement and has the potential to impact the rights of every Indian in Canada and the hunting, fishing and trapping resource bases of allthree prairie provinces.

VII. CONCLUSION [ 60 ] For the reasons given above, we conclude that this appeal must be allowed and a new trial ordered. At the trial, the appellants and the Crown can be expected to develop an evidentiary record that will allow the trial judge to come at the

interpretation of paragraph 12 of the NRTA in the manner mandated by Blais . “Richards C.J.S.” Richards C.J.S. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Whitmore J.A.” Whitmore J.A.