Hunting and treaty rights: Badger v. the Queen
R v. Badger
Court: Supreme Court of Canada
Citation:  1 S.C.R. 771
TAGS: Treaty Rights; Food Hunting Rights
The same test is used to analyze infringement of treaty rights as is used for analyzing constitutional Aboriginal rights.
Three Cree people with status under Treaty 8 were charged under the Wildlife Act while hunting for food on land that had been surrendered to Canada under Treaty 8. The lands in all three situations were privately owned. Mr. Badger was charged with shooting a moose outside of the hunting season. Mr. Kiyawasew and Mr. Ominayak were charged with hunting without a license. They argued that the provisions of the Wildlife Act (ss.26(1) and 27(1)) infringe on their constitutional right to hunt for food.
The Supreme Court of Canada held that Mr. Badger and Mr. Kiyawasew were hunting on occupied land to which they had no right of access under Treaty 8, and therefore, the provisions of the Wildlife Act do not infringe their constitutional right to hunt for food. The court held that Mr. Ominayak was exercising his constitutional right to hunt for food on land that was in practice unoccupied, and therefore, s.26(1) of the Wildlife Act was an infringement of his treaty right to hunt for food. The Supreme Court of Canada ordered a new trial for Mr. Ominayak on the issue of justification for the infringement.
Why this Case Matters:
R v Badger includes an application of the Sparrow test for analyzing an infringement of treaty rights. The same test is used for analyzing an infringement of treaty rights as is used for analyzing an infringement of Aboriginal rights. Also, R v Badger reminds us that “Treaties are sacred promises and the Crown’s honour requires the Court to assume that the Crown intended to fulfil its promises” (para. 47). Furthermore, the honour of the Crown is always part of the Crown’s relations with Indigenous nations.
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