[1988] 1 S.C.R. R. v. HORSE 187
Ernest Horse, Clement Horse, Phillip Horse, Peter Horse, James Standingwater, Kenneth
Standingwater, Clarence Fiddler and Percy Alexander Appellants
v.
Her Majesty The Queen Respondent
INDEXED AS: R. v. HORSE
File No.: 19164.
1987: October 19; 1988: January 28.
Present: Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain and L'Heureux-Dubé JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Indians -- Hunting rights -- Right of access to private lands for hunting purposes -- Lands
in question unposted -- Whether or not a right of access derived from The Wildlife Act --
Whether or not a right of access derived from custom -- Whether or not a right of access
derived from Treaty No. 6 -- Natural Resources Transfer Agreement, S.S. 1930, c. 87, ss.
2, 12 -- The Wildlife Act, S.S. 1979, c. W-13.1, s. 38 -- The Wildlife Amendment Act,
1982, S.S. 1982-83, c. 20, s. 7 -- Treaty No. 6.
Appellants were charged with an offence under the Saskatchewan Wildlife Act, namely
using a spotlight for hunting wildlife. They are all Treaty Indians and were all hunting for
food. The land upon which the hunting took place was privately owned. Appellants did
not have permission or authority to hunt from the owners or occupants of the lands in
question. The lands, which had not been posted with respect to hunting or trespassing,
were sown to hay and grain.
Each of the appellants was convicted at Provincial Court. The Court of Queen's Bench,
on appeal, set aside the convictions but the Court of Appeal, on appeal by the Crown,
restored them.
At issue here is whether or not a right of access to the lands in question for the purpose of
hunting arose from The Wildlife Act, from Treaty No. 6 or from custom and usage,
thereby creating an immunity from prosecution by means of the Saskatchewan Natural
Resources Transfer Agreement. Paragraph 12 of the Agreement provided, "that . . .
Indians shall have the right . . . of hunting . . . 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." Reliance was also placed on the Indian Act and Constitution Act, 1982,
s. 35(1).
Held: The appeal should be dismissed.
Generally, paragraph 12 of the Saskatchewan Natural Resources Transfer Agreement
must be given a broad and liberal construction with any ambiguity in the phrase "right of
access" being resolved in favour of the Indians.
Section 38 of The Wildlife Act does not create a statutory right of access to private lands
for the purpose of hunting. Hunters enter private property with no greater rights than
other trespassers; they have no right of access except with the owner's permission, and,
lacking permission, they are subject to civil action for tres- pass. The Wildlife Act does
not create a limited right to hunt within the meaning of R. v. Sutherland, [1980] 2 S.C.R.
SNIPPETS:
Ernest Horse, Clement Horse, Phillip Horse, Peter Horse, James Standingwater, Kenneth
Indians -- Hunting rights -- Right of access to private lands for hunting purposes -- Lands
38 -- The Wildlife Amendment Act, 1982, S.S. 1982-83, c. 20, s.
Appellants were charged with an offence under the Saskatchewan Wildlife Act, namely using a
They are all Treaty Indians and were all hunting for food.
Each of the appellants was convicted at Provincial Court.
At issue here is whether or not a right of access to the lands in question for the purpose of
paragraph 12 of the Saskatchewan Natural Resources Transfer Agreement must be given a broad
Section 38 of The Wildlife Act does not create a statutory right of access to private lands
Passages from the negotiations, viewed in the context of the various treaties, made it clear
Settlement of these lands was the goal of the government along with the intention of
which allowed the appeals of the accused from their convictions for an offence contrary to s.
Kenneth W. MacKay, Q.C., for the respondent.
In 1929 and 1930 agreements were entered into between each of the provinces of Alberta,
The notice requirement stemmed from the following provision in the Manitoba legislation:
25 In my view it is not necessary to determine the application of these various provisions
To have and to hold the same to Her Majesty the Queen and her successors forever; And Her
It is evident that the clause relating to hunting rights in Treaty No. 6 should be given the
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