Crown appeals dismissal of First Nations hunters' charges


The Crown is asking a Regina Court of Queen’s Bench judge to overturn a lower court decision that found two Ontario First Nations hunters had the constitutional right to hunt for food within Saskatchewan Crown lands.

This summer, Regina Provincial Court Judge Doug Kovatch returned with his decision on a matter involving Blair S. Hill and Albert Edward Green, who were charged under The Wildlife Act in relation to allegations from October 2018 when the two were accused of illegal hunting in Moose Mountain Provincial Park.

Kovatch ultimately agreed with submissions made by defence lawyer Dusty Ernewein, finding the men — treaty members of Six Nations First Nation in Ontario — were not bound by The Wildlife Act while hunting for food and so were not guilty of the offences.

At the heart of the case was paragraph 12 of the Natural Resources Transfer Agreement (NRTA), which deals with constitutional hunting rights granted to First Nations individuals. Kovatch examined the history of the NRTA, which facilitated the transfer of unoccupied Crown lands in the three Prairie provinces, as well as natural resources, from the federal government to the provinces.

Kovatch found, as argued by Ernewein, that there was nothing in the language of the NRTA paragraph in question to suggest only First Nations people residing within treaty lands situated entirely or in part within Saskatchewan can exercise their constitutional hunting rights within the province.

The judge buttressed his position through various cases in which unlawful hunting charges were tossed when the accused showed he or she fell under paragraph 12 of the NRTA.

Crown prosecutor James Fyfe took another position — one he reiterated on Thursday while arguing his appeal before Queen’s Bench Justice Graeme Mitchell.

Fyfe argued the case law Kovatch referred to, while not bad law, has since been eclipsed by a Supreme Court of Canada decision — one the trial judge failed to reference. Fyfe argued that particular case is both on point and a “binding authority,” and one that should have, in the Crown’s view, resulted in a very different outcome.

Fyfe said the Supreme Court focused on interpreting the paragraph in question, and dealt with the issue of protection of pre-existing rights versus an expansion of rights or the creation of new rights. Fyfe argued the purpose of the NRTA was to preserve rights that already existed, but isn’t supposed to extend or create additional rights — such as granting hunting rights to First Nations individuals from outside the treaty areas covered by the Act.

“This is about as straightforward as it gets,” Fyfe said, stating Kovatch’s decision is tantamount to an extension of rights not intended by the NRTA.

But Ernewein pointed out the Supreme Court case referenced by Fyfe pertains to a Metis individual rather than a First Nations person. He added there is no evidence that Canada or the provinces, in the language used at the time the agreements were established, meant the term “Indians” as only “treaty Indians” and cautioned against taking a position that fragmentation or categorization of Canadian First Nations people was intended by paragraph 12.

Ernewein argued pre-existing rights are extended to all First Nations people, not just those who live within the territory covered by the NRTA.

Mitchell reserved decision. No date was set for return of the decision.