Treaty Rights to Hunt: The Horseman case
R v. Horseman
Court: Supreme Court of Canada
Citation:  1 S.C.R 901
TAGS: Treaty Rights; Harvesting Rights
Treaty rights to hunt commercially can be extinguished by subsequent agreements.
While hunting for food, Horseman, a man from Treaty 8, killed a grizzly bear in self-defense and kept the hide. At that time, he did not have a license to hunt grizzlies or sell their hides. One year later, he obtained a license to hunt grizzly bears, and then sold the hide to support his family. This was a lone incident, and he was not planning any further commercial activity. He was charged in contravention of s.42 of the Wildlife Act, for unlawfully trafficking in wildlife. Horseman argued that he should not be charged due to his Treaty 8 rights to hunt, trap and fish.
At trial, the judge found that he was within his Treaty 8 rights and he was acquitted. On appeal, the acquittal was set aside, as the court found that the Treaty 8 rights were limited to hunting for food by the Natural Resources Transfer Agreement (NRTA) of 1930. It was then appealed to the Supreme Court of Canada (SCC) which dismissed the appeal and upheld the conviction.
Why this Case Matters:
This case established that the NRTAs extinguished the treaty right to commercial hunting in the prairie provinces. In 1930, through the NRTAs, control over the natural resources in AB, SK and MB was transferred from the federal government to the provincial governments. Through these agreements, it was stipulated that the provinces had to honour Aboriginal harvesting rights on all unoccupied Crown lands. Previously, in R v Frank, the SCC held that the boundaries had been extended to encompass the provinces for food hunting. The court expanded on this in R v Horseman and the majority stated that, while the boundaries of food hunting had been extended, the rights to hunt commercially had been extinguished.
The dissenting judges found the opposite, stating that the treaty should be interpreted broadly in favor of the members of the treaty. They found that the language in Treaty 8 was a promise that the meant the livelihood of the people it pertained to would be respected and should not be viewed as a limitation on their traditional ways of life.
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