Manitoba Court of Appeal, Miller C.J.M., Schultz, Freedman, Guy and Monnin JJ.A., 25 April 1966
(Appealed to Supreme Court of Canada, reported sub nom. Daniels v. The Queen, infra p. 199)
The Manitoba Natural Resources Act, 1930 (Man.), c. 30, now R.S.M. 1954, c. 180, and the Manitoba Natural Resources Act, 1930 (Can.),
Per Freedman, J.A. (dissenting): Paragraph 13 of the Schedule to the
Manitoba Natural Resources Act, which permits the hunting by Indians
of game for food at all seasons of the year and which assures Indians of
the continued enjoyment of a right which they have exercised from time
immemorial, should prevail. Notwithstanding that such a result gives
the Act a different effect in Manitoba from that which it has in other
parts of Canada, it is supported by the fact that the terms of para. 13
of the Schedule to the Manitoba Natural Resources Act, being compre-
hensive and permitting the hunting by Indians of game for food all
year, make no exception with respect to migratory birds even though
the Migratory Birds Convention Act had been in existence since 1917,
and no attempt was made by the legislators to make the provisions of
para. 13 subject to the Migratory Birds Convention Act. Further
support for this position may be found in the confirmation in the B.N.A.
Act, 1930 declaring that the provisions of the Manitoba Natural Re-
sources Act should have the force of law notwithstanding anything in
any Act of the Parliament of Canada.
[R. v. Sikyea, 50 D.L.R. (2d) 80, [1965] 2 C.C.C. 129, 44 C.R. 266,
[1964] S.C.R. 642, 49 W.W.R. 306; R. v. George, 55 D.L.R. (2d) 386,
[1966] 3 C.C.C. 137, 47 C.R. 382, [1966] S.C.R. 267, refd to]c. 29, confirmed by the B.N.A. Act, 1930 (U.K.), c. 26, enacted for the
purpose of vesting in Manitoba the administration and control of its
natural resources, have the effect of affirming the right of Indians in
Manitoba to hunt game for food at all seasons of the year. On the
other hand, the Migratory Birds Convention Act, 1917 (Can.), c. 18, now
R.S.C. 1952, c. 179, together with the Regulations, P.C. 1958-1070,
SOR/58-308, made thereunder ratifying and confirming the Convention
of August, 1916, between Great Britain (on behalf of Canada) and the
U.S.A. for the preservation of migratory birds, prohibit having posses-
sion of a migratory game bird during the close season relating to such
bird, with the proviso that Indians and Eskimos may take certain
specified birds at any season of the year. On appeal by the Crown from
an order allowing the appeal of the accused, an Indian in Manitoba,
from his conviction for having in his possession migratory game birds
during the close season therefor, held, Freedman, J.A., dissenting, the
two Acts cannot be reconciled and the Migratory Birds Convention Act
must prevail with the result that the rights given to the Indians by their
various treaties with respect to migratory birds must be held to have
been taken away from them by Parliament. The Migratory Birds Con-
vention Act is of much ampler scope, being of general application
throughout Canada, and ought not to be construed as circumscribed
by the restricted legislation that is to be found in the Manitoba Natural
Resources Act. Such a conclusion follows from the desirability that a
matter within the legislative responsibility of Parliament and governed
by any international treaty, be uniform in application throughout the
country unless specifically provided otherwise.
APPEAL by the Crown from the judgment of Thompson, Co.Ct.J., allowing the accused's appeal from his conviction by Macphee, P.M., for an offence under s.12(1) of the Migratory Birds Convention Act, R.S.C. 1952, c. 179.
S. Breen, for the Crown, appellant.
W. R. Martin, for accused, respondent.
SCHULTZ, J.A.:--Preliminary to judgment being given on this appeal, I made the following statement in Court:
The issue in this case being a constitutional one of some importance, the full Court of five Judges sat to hear argu- ment on December 3rd last. Owing to the illness of the Chief Justice, we do not have the advantage of his judgment in this matter. However, as three of the members of the Court are agreed as to the result and there is therefore no reason for delaying delivery of judgment, we are now prepared to deliver judgment under the authority of ss. 16 and 19 of the Court of Appeal Act, R.S.M. 1954, c. 48, which sections read as follows:
16. The determination of any question before the court shall be
according to the opinion of the majority of the members of the court
hearing the cause or matter.
19. It shall not be necessary for all the judges who have heard
the argument in a cause or matter to be present in order to con-
stitute the court for delivery of judgment therein; but in the absence
of any judge, from illness or any other cause, judgment may be
delivered by a majority of the judges who were present at the
hearing.
Two judgments will now be read, the dissenting judgment by my brother Freedman, and the judgment of the majority of the Court by my brother Monnin.
SCHULTZ, J.A., concurs with MONNIN, J.A.
FREEDMAN, J.A. (dissenting):--This appeal presents the Court with a conflict between two legislative enactments and the need either of reconciling them or of choosing between them. One of these enactments is para. 13 of the agreement [Schedule] contained in the Manitoba Natural Resources Act; the other is the Migratory Birds Convention Act in its applica- tion to Manitoba Indians.
The former enactment is part of the agreement which was entered into in 1929 between the Government of the Dominion of Canada and the Government of the Province of Manitoba for the purpose of vesting in Manitoba the administration and control of its natural resources. It was given legislative approval both by the Province and by the Dominion. See the Manitoba Natural Resources Act, 1930, c. 30, now R.S.M. 1954, c. 180, and the Manitoba Natural Resources Act, 1930 (Can.), c. 29. Moreover, it was confirmed by a statute of the United Kingdom, namely, the B.N.A. Act, 1930 (U.K.), c. 26, which expressly declared that the agreement "shall have the force of law notwithstanding anything in the British North America Act, 1867, or any Act of the Parliament of Canada . . . "
As for the Migratory Birds Convention Act it was first enacted as 1917 (Can.), c. 18, and now appears as R.S.C. 1952, c. 179. The Act sanctioned, ratified and confirmed the Convention of August 16, 1916, which had been entered into by Great Britain (on behalf of Canada) and the United States of America. Its object was the preservation of birds which in the course of their annual migrations traverse cer- tain parts of the Dominion of Canada and the United States. To that end it established certain close seasons during which no hunting of migratory birds (with certain excep- tions ) should be done. One of such exceptions, as regards migratory game birds, permitted Indians to take at any time scoters for food but not for sale. Another exception, with respect to migratory non-game birds, allowed Indians and Eskimos to take at any season auks, auklets, guillemots, murres, and puffins for food. The Act provided that the Governor in Council might make such Regulations as are deemed expedient to protect the migratory birds that inhabit Canada during the whole or any part of the year. Such Regulations were in fact made, but not until the year 1958. Indeed, it appears to be only in recent years that the Domin- ion has sought to enforce the provisions of the Act. Certainly that is the situation so far as Manitoba is concerned.
Paragraph 13 of the agreement, set forth in the Manitoba Natural Resources Act, reads thus:
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 Prov- ince from time to time shall apply to the Indians within the bound- aries 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.
The proviso to the section affirms the right of Indians of the Province to hunt game for food at all seasons of the year. As such it assures them of the continued enjoyment of a right which they have exercised from time immemorial.
The legislative conflict is apparent and may now be stated. To give full effect to the terms of para. 13 of the agreement is to hold that the provisions of the Migratory Birds Convention Act and its Regulations do not apply to Indians in Manitoba when engaged in hunting migratory birds for food. On the other hand, to give effect to the Migratory Birds Convention Act is to wipe out, so far as most migratory birds are con- cerned, the right of the Indians in Manitoba to hunt game
for food at all seasons of the year in accordance with para. 13 of the agreement. For myself I can see no possible reconcilia- tion between the two so far as Indians of Manitoba are con- cerned. I must accordingly choose between them and decide which shall here prevail.
At first blush it might be thought that the reference to Indians and their hunting rights both in the Convention and in the Regulations of the Migratory Birds Convention Act -- under which they are permitted to hunt scoters, auks, auk- lets, etc. -- settles the matter. Obviously such rights are far smaller than the unrestricted right to hunt all game for food, which is provided by para. 13 in the Manitoba Natural Resources Act. The reference to Indians in the Convention and in the Regulations is in general terms, no exception being made with regard to Indians of Manitoba or elsewhere. It might accordingly be plausibly argued that the Indians in Manitoba have only such rights with respect to migratory birds as are conferred by the Migratory Birds Convention Act. But this is not necessarily so. We must remember that when the Convention of 1917 was entered into, the agreement relating to the transfer of Manitoba's natural resources was not yet in existence nor even in contemplation. Hence no exception with regard to Manitoba Indians could have been expected in the Convention. As for the Regulations of 1958, it is true that they were enacted subsequent to the Manitoba Natural Resources Act and that they contain no exception in favour of Indians of Manitoba. But the Regulations could not enlarge or go beyond the provisions of the statute pursuant to which they were enacted. Rather they would conform to the terms of that statute; so no such exception would be expected in the Regulations either.
The parallel argument on the other side appears to me to be far more cogent. The terms of para. 13 contained in the Manitoba Natural Resources Act are comprehensive and per- mit the hunting by Indians of game for food at all seasons of the year. No exception is made with respect to migratory birds, even though the Migratory Birds Convention Act had been on the statute books since 1917. Instead of making the provisions of para. 13 subject to the terms of the Migratory Birds Convention Act, the legislators did quite the opposite. They enshrined the agreement within the Canadian constitu- tional framework by having it confirmed at Westminster in the B.N.A. Act, 1930, and declared it should have the force of law "notwithstanding anything in . . . any Act of the Parlia- ment of Canada". I believe it should be given that force and
not be read as subject to the provisions of the Migratory Birds Convention Act.
I am conscious of the fact that this conclusion will give to the Migratory Birds Convention Act a different effect in Manitoba (and incidentally in Saskatchewan and Alberta, which have similar provisions to para. 13) from that which it has in other parts of Canada. The decision of the Supreme Court of Canada in R. v. Sikyea, 50 D.L.R. (2d) 80, [1965] 2 C.C.C. 129, [1964] S.C.R. 642, upheld the application of the Migratory Birds Convention Act to an Indian of the North- west Territories notwithstanding hunting rights contained in treaties. The decision of that Court in R. v. George (Janu- ary 25, 1966), not yet reported [since reported 55 D.L.R. (2d) 386, [1966] 3 C.C.C. 137, [1966] S.C.R. 267], came to the same conclusion as regards an Indian of Ontario. In neither case, of course, did para. 13 in the Manitoba Natural Resources Act apply. If the application of para. 13 gives to the Migratory Birds Convention Act a disparate result in different parts of Canada, that is simply an unfortunate but inevitable consequence of the conflicting legislation on the subject. If any remedy is thought desirable it would have to come from Parliament.
In my view, Thompson, Co.Ct.J., was right in acquitting the accused. I would accordingly dismiss the appeal.
GUY, J.A., concurs with MONNIN, J.A.
MONNIN, J.A.:--This is an appeal from a decision of Thompson, Co.Ct.J., who himself was sitting on appeal from a decision of Macphee, P.M.
Macphee, P.M., convicted the accused for that he
Paul Daniels, of Chemahawin Indian Reserve, Manitoba, on the 3rd day of July, A.D. 1964, at Chemahawin Indian Reserve, in the Prov- ince of Manitoba, did unlawfully and without lawful excuse have in his possession Migratory Game Birds, during a time when the captur- ing killing or taking of such birds, is prohibited, contrary to the regulations under the Migratory Birds Convention Act, thereby committing an offence under Section 12(1) of the said Migratory Birds Convention Act.
My brother Freedman has clearly and succinctly defined the problem as a conflict between two enactments of the Parliament of Canada and the need of reconciling them, if at all possible, and, if not, of selecting which of the two statutes is to prevail.
Sections 6 and 12(1) of the Migratory Birds Convention Act, R.S.C. 1952, c. 179, formerly 1917 (Can.), c. 18, are as follows:
6. No person, without lawful excuse, the proof whereof shall lie
on such person, shall buy, sell or have in his possession any migra-
tory game bird, migratory insectivorous bird or migratory nongame
bird, or the nest or egg of any such bird or any part of any such
bird, nest or egg during the time when the capturing, killing or
taking of such bird, nest or egg is prohibited by this Act.
12(1) Every person who violates any provision of this Act or any
regulation is, for each offence, liable upon summary conviction to a
fine of not more than three hundred dollars and not less than ten
dollars, or to imprisonment for a term not exceeding six months, or
to both fine and imprisonment.
Article II, s. 3 of the Convention between Canada and the United States of America, executed in 1916, is as follows:
3. The close season on other migratory nongame birds shall con- tinue throughout the year, except that Eskimos and Indians may take at any season auks, auklets, guillemots, murres and puffins, and their eggs for food and their skins for clothing, but the birds and eggs so taken shall not be sold or offered for sale.
Section 5 (2) of the Regulations [P.C. 1958-1070, SOR/68-308] under the Migratory Birds Convention Act, supra, passed in 1958 only, is as follows:
(2) Indians and Eskimos may take auks, auklets, guillemots, murres, puffins and scoters and their eggs at any time for human food or clothing, but they shall not sell or trade or offer to sell or trade birds or eggs so taken and they shall not take such birds or eggs within a bird sanctuary.
The Manitoba Natural Resources Act was enacted in 1930, c. 30, now R.S.M. 1954, c. 180, and was also enacted by the Federal Parliament -- see 1930, c. 29. This latter legis- lation was enacted for greater certainty, because it dealt with the natural resources of the three Prairie Provinces; it was confirmed by a statute of the United Kingdom, namely, the British North America Act, 1930, c. 26.
Paragraph 13 of the Schedule to the Manitoba Natural Resources Act, supra, is as follows:
13. In order to secure to the Indians of the Province the con- tinuance of the supply of game and fish for their support and sub- sistence, 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 hunt- ing, 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.
If the above para. 13 is to apply, then the provisions of the Migratory Birds Convention Act and Regulations passed pursuant thereto do not apply to Indians in Manitoba while hunting migratory birds for food. It will also mean that,
depending in what Province the Indian hunter resides, he may face different laws -- laws absolutely opposed to those in force in another Province.
To give effect to the international treaty annexed to the Migratory Birds Convention Act is to wipe out the rights of Indians in Manitoba to hunt migratory birds for food at all seasons of the year -- rights which relate back many years and which many thought were confirmed by para. 13 in the Manitoba Natural Resources Act. One or the other of these two Acts must prevail since they cannot be reconciled.
When the International Convention was executed there was in it no reservation of the Indians' rights to hunt except to hunt for auks, etc., as provided in s. 3 of Art. II of the Con- vention. Later this was further embodied in the Regulations passed in 1958 -- see s. 5(2) of the Regulations, supra. In so doing, Parliament reaffirmed its understanding of the 1916 Convention and set up the machinery to enforce its legislation.
Basically the Manitoba Natural Resources Act dealt with the transfer of natural resources from the Federal Govern- ment to the provincial Government. Reservation of some Indian rights was only a side issue. One or the other of these Federal enactments indicates, to a certain degree, a breach of faith. If Indian rights had been taken away by the 1917 Migratory Birds Convention Act, then there is a breach of faith to the Indians by virtue of the many old treaties guaranteeing to them such rights of hunting at all seasons. Though one must admit that life is no longer what it was when these treaties were signed, hunting for food no longer means the difference between life and death for the Indian and his family, especially nowadays, with all the social secur- ity measures available for all Canadian citizens, as well as others available only to Indians.
To say that para. 13 in the Manitoba Natural Resources Act is the preferable legislation simply compounds another breach of faith -- this time in our international convention with the United States of America. Can it be thought that Parliament, being fully cognizant of all the facts, would com- pound breach upon breach, even if the second breach had the apparent effect of reinstating Indian rights taken away by the first breach?
It cannot be said that in 1930 Parliament had forgotten its 1917 enactment, especially not when in 1958, by publication of its Regulations, it set forth the machinery to enforce its 1917 legislation.
I must find that the rights given to the Indians by their various treaties with respect to migratory birds were taken away from them by Parliament in the Migratory Birds Con- vention Act.
Section 87 of the Indian Act, R.S.C. 1952, c. 149, has no bearing on this case. This aspect was disposed of by the Supreme Court in two decisions: R. v. Sikyea, 50 D.L.R. (2d) 80, [1965] 2 C.C.C. 129, [1964] S.C.R. 642; R. v. George (unreported) [since reported 55 D.L.R. (2d) 386, [1966] 3 C.C.C. 137, [1966] S.C.R. 267].
Further, para. 13 refers only to provincial game laws, and assures, to Indians only, the right of hunting, trapping, and fishing for food at all seasons of the year, on unoccupied Crown lands and on such other lands to which they have a right of access. This means Indians have a very limited right to fish, hunt and trap in Manitoba. Surely Federal legislation of much ampler scope -- actually of general application throughout the Dominion -- is not circumscribed by this restricted legislation.
If para. 13 in the Manitoba Natural Resources Act gives to Indians the unrestricted right to hunt for food at all times, what is the purpose of s. 5(2) of the Regulations since it only refers to a few types of birds and eggs which they may take at any time? It is common knowledge that laws are not identical in all parts of Canada. But surely a matter within the legislative responsibility of the Federal Parliament, governed by an international treaty entered into by Canada with its neighbours in all its solemn form, deserves uniform- ity of application throughout the country unless specifically cally provided otherwise.
I conclude that the Migratory Birds Convention Act pre- vails, since it is of paramount importance, applies to the country as a whole, and was enacted prior to the Manitoba Natural Resources Act, supra.
I would accordingly allow the Crown's appeal, set aside the acquittal by Thompson, Co.Ct.J., and restore the con- viction and confirm the sentence imposed by Macphee, P.M.
Appeal allowed; conviction restored.