A political analysis of: R. v. Badger

Justin S.

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A political analysis of: R. v. Badger

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Abstract

The supreme court of Canada stands as the highest level of court in Canada and is the final stop for all cases which have been appealed from the superior provincial courts. Unlike the lower courts, the supreme court of Canada seats up to nine judges with each appeal seating a minimum of 5 justices to interpret the facts of a case. The Supreme Court's decisions have a strong influence on the social and political aspects of Canadian society as the precedents set within the court apply to all lower courts within the country. The case of R. v. Badger [1996] was one appeal that dealt with Aboriginal hunting rights protected under section 35 (1) of the Canadian constitution. This case was significant as it dealt with whether Aboriginals retained their right to hunt on privately owned land outlined within treaty (8). Furthermore this case examined weather the changes made to Aboriginal rights by the Alberta Natural Resources Transfer Agreement (NRTA) was reasonable and plausible limitations.
Before examining the course of litigation, one must gain an understanding of the charges laid against the three appellants. The appellants in this case were: Wayne Clarence Badger, Leroy Steven Kiyawasew and Ernest Clarence Ominayak. All three appellants were Cree status Indians from Alberta whom were covered under treaty No.8. The three men were charged with infractions under the wildlife act as their treaty right to hunt did not extend to privately owned property.

Introduction
The overlap of the rights presented within treaty No.8 and the NRTA
Several principles that had to be kept in mind during litigation
Differences between the rights of the Indians in the NRTA and those previously listed in Treaty No.8
The [ti]right of access[ti]
Testimony by historian John Foster
The case of Mr. Badger
Relevant treaty and statutory provisions

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[...] Badger was hunting on was covered with shrub growth and had a lack of signs and fences, the presence of the house only mile away was enough to classify the land as being in use. While the presence of signs and fences had been a pre-requisite for assessing land usage, the court fell on the precedents set by R. v. Myran in order to make their decision (R. v. Badger[1996] S.C.R.). In this case, two hunters were accused with discharging their rifles in a farmer's field which lacked any signs. [...]

[...] from a rundown house. The next appellant, Leroy Kiyawasew, was caught hunting on a snow covered farmers field that showed signs that it had been recently harvested. The appellant also admitted that while there were signs posted on the land, he could not read them from the road. Furthermore there was a fence on the land as well as several run down barns and as a result, Kiyawasew was charged under s.26 with hunting without a license. The third appellant, Ernest Clarence Ominayak, was also charged under S.26 with hunting without a license when he shot and killed a moose while hunting in an un-cleared muskeg(R. [...]

[...] v. Badger[1996] S.C.R.). Therefore, since the land was being put to active use in both instances, and that neither man had permission to hunt on the land, it was decided that the charges against both individuals did not infringe on their treaty right to hunt. While the other two appeals were dismissed, the conditions of Mr. Ominayak's case allowed for a different ruling. Unlike the tracts of land found in the other two cases, the land in this case did not posses any signs, fences or buildings. [...]

[...] v. Badger[1996] S.C.R.). Since it is obvious that the NRTA modified the treaty rights of Aboriginals it is understandable as to why several constitutional questions have arisen in the present case. Since the NRTA surpassed treaty no in terms of constitutional significance it is understandable why issues would arise in regards to the limitations placed on Aboriginal hunting rights. These issues were organized into the three main questions which judges Cory and Sopinka attempted to answer. One main constitutional question was whether or not Indians whom had status under treaty no.8 possessed the ability to hunt for food on privately owned land. [...]

[...] The first conclusion was based on the interpretation that the “right of access” that the NRTA proposes refers to access for the purpose of hunting as opposed to a general access to the lands in question (R. v. Badger[1996] S.C.R.).In other words, while some Aboriginals may have permission to travel on private property, this permission does not necessarily extend to the right to hunt on the same land. The next conclusion regarding this issue dealt with the limitation that hunters could not hunt on land taken up for settlement, mining, trading and other purposes. [...]

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