HER MAJESTY THE QUEEN. - and - JOHN D. SUNDOWN. W. Brent Coner, Q.C. * :,~J=- b... Deputy Anorney General,...~c..+

Transcription

1 C.A. File No IN THE COURT OF APPEAL FOR SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN APPELLANT - and - JOHN D. SUNDOWN RESPONDENT FACTUM OF THE APPELLANT W. Brent Coner, Q.C. * :,~J=- b.... 'A,L,d. Deputy Anorney General,....~c..+,..,,: ;<,& 8th Floor, 1874 Scarth Street,G -1. ';,;;,,+.. Regina, Saskatchewan,, S4P 3v7 ~,

2 TABLE OF CONTENTS - TAB Information I Trial Judgment Notice of Appeal Queen's Bench Judgment Notice of Appeal Argument PART I: PART 11: PART 111: PART IV: PART V: STATEMENT OF FACTS (Page 1) RELEVANT LEGISLATION (Page 4) ISSUE (Page 5) POSITION OF THE ATTORNEY GENERAL (Page 6) ARGUMENT (Page 7) Nature of Order Sought Table of Authorities

3 1. The Respondent is an Indian. He is a member of the Joseph Bighead First Nation which is a party to Treaty No. 6. Trial Judgment, Tab J, at p The Respondent, with the assistance of others, cut down a large number of trees and built a cabin near Mistohay Lake, Saskatchewan which is within the Meadow Lake Provincial Park. The cabin was a one storey structure with dimensions of 30' by 40'. It was situated approximately 50' from the shoreline of the lake and was within 114 mile of Provincial Highway No A trail runs from the highway to the cabin. Trial Judgment, Tab J, at pp. 2 and The Respondent did not have a disposition under The Parks Regulations, 1991 or the written consent of the Minister authorizing him to cut down the trees or to build the cabin. Trial Judgment, Tab J, at p As a result, the Respondent was charged with two offences under The Parks Regulatiom, 1991: (a) (b) constructing a permanent dwelling on park land without a disposition or the prior written consent of the Minister, contrary to section 41(2)(i); and taking, damaging or destroying trees on park land without the prior written consent of the Minister, contrary to section 59(a).

4 5. At his trial in Provincial Court at Pierceland, the Respondent argued that he had a Treaty right to cut down the trees and to build the cabin because these activities were "reasonably incidental" to the exercise of his Treaty hunting rights. Trial Judgment, Tab J, at p The Crown agreed that the Respondent could exercise his hunting rights within the Provincial Park but said that this did not include the right to cut down trees or to build a cabin without the required authorizations under nte Parks Regulations, Trial Judgment, Tab J, at p On September 22nd, 1993, Judge Morris convicted the Respondent on both charges. She held that the construction of a log cabin was not an activity that was "reasonably incidental" to the act of hunting. She felt that building a permanent structure in the hunting area was not intended to be part of the hunting rights set out in either Treaty No. 6 or paragraph 12. Trial Judgment, Tab J, at p The Respondent appealed his convictions to the Court of Queen's Bench. In reasons released on May 30th, 1995, Klebuc J. found that the Respondent's constitutionally protected hunting rights included the right to build a log cabin as, in his view, it was related to hunting and it was reasonable for the Respondent to do so in all of these circumstances. Therefore, Klebuc J. allowed the appeal with respect to the conviction under section 42(2)(i) and entered an acquittal on that charge. The Accused had, however, admitted to using some of the trees cut down in the park for purposes

5 unrelated to the cabin or his hunting rights and, therefore, the appeal with respect to his conviction under section 59 was dismissed. Queen's Bench Judgment, Tab L, at p The Crown filed an appeal with respect to Klebuc J.'s decision to acquit on the charge related to building the cabin. The Respondent has not appealed the decision to uphold his conviction on the charge related to cutting down trees. Therefore, the only charge that is in issue in this appeal is the charge related to building the cabin.

6 m RELEVANT LEGISL- 10. The Parh Regulations, 1991, R.R.S., c. P-1.1, Reg (1) No person shall: (c) (d) (e) OCCUPY; undertake research on; alter; use or exploit any resource in, on or under; or develop; park land without a disposition. 41(2) Without limiting the generality of subsection (I), no person shall: graze or keep any livestock or allow any livestock to roam at large on park land; undertake haying or cultivation on park land; harvest timber on or remove timber from park land; harvest wild rice on or remove wild rice from park land; undertake commercial outfitting on park land; explore for minerals or oil or gas in, on or under park land; remove plant material, soil, rock or gravel from park land; engage in research relating to resources in, on or under park land; extract a mineral or oil or gas from park land; construct or occupy a temporary or permanent dwelling on park land; or construct, occupy or operate any prh :ite or commercial facility or service on park land; without a disposition or the prior written consent of the minister.

7 11. There is only one issue raised by this appeal. It is as follows: (a) do the constitutionally protected hunting rights of the Respondent under paragraph 12 of the Natural Resources Transfer Agreement include the right to construct a permanent structure like a log cabin on occupied Crown land such as a Provincial Park without regard for provincial laws?

8 l?amay POSITION OF THE ATTORNEY GENERAL 12. It is the position of the Attorney General that the Respondent's hunting rights do not include the right to build a log cabin in a Provincial Park without a disposition or the ministerial consent required under The Parks Regulations, 1991.

9 13. In the Courts below, the Respondent argued that he had a right to cut down trees and build a cabin in the Meadow Lake Provincial Park because such activities are "reasonably incidental" to his constitutionally protected hunting rights. 14. In Saskatchewan, Indian hunting rights are governed by paragraph 12 of the Natural Resources Transfer Agreement, which is part of the Constitution Act, These rights are not governed by the terms of the original Treaties. The Treaty rights have been "merged and consolidated" into paragraph 12 and continue to exist only as "modified" and "limited" by paragraph 12. R. v. Mclntyre, [I C.N.L.R. 113, (Sask. C.A.); (application for leave to appeal to the Supreme Court dismised [I S.C.R. vii). R. v. Horseman, [I S.C.R See also: R. v. Badger, [I C.N.L.R. 143 (Alta. C.A.); (application for leave to appeal to the Supreme Court granted [I S.C.R. v; appeal heard by the Supreme Court on May 1st and 2nd, 1995; decision reserved). 15. Paragraph 12 of the Transfer Agreement provides as follows: 12. 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 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 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.

10 16. The Attorney General agrees that paragraph 12 should be given a broad and liberal construction in favour of the Indians. R. v. Sutherland, [I S.C.R. 451, at p Horseman, supra, at p A Provincial Park is "occupied Crown land". Therefore, Indians have a right to hunt in a Provincial Park only if they have a "right of access" to the park for this purpose. The Courts have held that once any hunting is allowed on occupied Crown land, such as a park, Indians have a sufficient right of access to exercise their paragraph 12 rights on that land th~oughouthe year. In this case, the Attorney General admits that limited hunting is allowed in the Meadow Lake Provincial Park and, therefore, the Respondent has a right to hunt in the park. Sutherland, supra, at p R. v. Moosehunter, [I S.C.R R. v. Bellegarde, [I C.N.L.R. 98 (Sask. Q.B.). 18. The only issue to be determined in this appeal is whether building a permanent structure like a log cabin is an activity that is included within the constitutionally protected right to hunt under paragraph 12 of the Transfer Agreement. 19. The Respondent argues that his hunting rights include all activities that are "reasonably incidental" to the act of hunting. He relies upon the following passage from the decision of the Supreme Court in Simon to support his position:

11 It should be clarified at this point that m u n t to be effective must embodv bse activities reasalv incidental to the act of hunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds. In this case, the appellant was not charged with hunting in a manner contrary to public safety in violation of the Lands and Forests Act but with illegal possession of a rifle and ammunition upon a road passing through or by a forest, wood or resort of moose or deer contrary to s. 150(1) of the same Act. The appellant was simply travelling in his truck along a road with a gun and some ammunition. He maintained that he was going to hunt in the vicinity. In my opinion, w... c i.. t in the rivht mnted under art'cle. I. 4 of the Treaty of 1752 that the app dhthas the right to possess a a n and amm u, vtlon In a safe manner in order to be able to exercise the right - to hunt. Accordingly, I conclude that the appellant was exercising his right to hunt under the Treaty. (Emphasis added). R. v. Simon, [I S.C.R. 387, at p The Attorney General agrees that the above quoted passage from Simon is applicable to paragraph 12 of the Transfer Agreement and that the paragraph 12 right includes "those activities [which are] reasonably incidental to the act of hunting itself". The dispute between the Respondent and the Attorney General in this case relates solely to the meaning to be attributed to the words "reasonably incidental" and the application of the principles derived from Simon to the facts of this case. 21. In the Courts below, the Respondent argued that the words "reasonably incidental" ought to be interpreted as "reasonably related". The Crown, on the other hand, argued that those words ought to be interpreted as "reasonably necessary". This is the nub of the dispute between the parties. 22. Judge Morris held that the construction of the log cabin did not fall within the Simon definition as being an activity "reasonably incidental" to the act of hunting. However, she did not specifically

12 discuss the competing interpretations of "reasonably incidental" put forth by the Crown and the Respondent. She appears to have based her conclusion primarily on three grounds. First, she held that Treaty hunting rights carry with them a responsibility to act in a reasonable manner which includes an obligation to protect the landscape and not to interfere with the use and enjoyment of the land by others. Second, she noted that there were significant differences in the type of activities upheld in the Simon case (possession of a gun and ammunition while travelling to a hunting area) and the type of activities in question in this case. Third, she held that the construction of a permanent structure on lands where the exercise of hunting rights is allowed was contrary to what was intended by either Treaty No. 6 or the Transfer Agreement. Trial Judgment, Tab J, at pp The decision of Judge Morris on this point was overturned by Klebuc J. in the Court of Queen's Bench. He discussed the conflicting views of the Crown and the Respondent with respect to the proper interpretation of "reasonably incidental" in considerable detail. In the end, he held that neither view was correct. 24. He began by rejecting the Crown's argument that the true test to be applied was one of "reasonable necessity". The Crown relied upon the decision in Simon itself to support its position on this point. In Simon, Dickson C.J. stated that the rationale for including incidental activities within the Treaty right was to make the right "effective". He also said that the activities that were included within the Treaty right to hunt were those activities that were required "in order to be able to exercise the right to hunt". Therefore, it was the Crown's position and it remains the Crown's position that

13 the "non-hunting" activities that are protected by a Treaty right to hunt or a paragraph 12 right to hunt are only those activities that are essential to the act of hunting itself or those activities, without which, the right to hunt would become ineffective or practically ineffective. The sundry activities that are associated with hunting, but which are not required in order to exercise the right to hunt in an effective way, are not constitutionally protected. The test is not whether the activity is reasonably related to hunting, as alleged by the Respondent, but rather is whether the activity is reasonably required in order to be able to exercise the hunting right effectively. Simon does not suggest that a simple connection or nexus, even a reasonable one, between the activity and the act of hunting is sufficient to subsume the activity within the constitutionally protected right. Clearly, Simon indicates that something more is required. The activity in question must relate to the hunter's ability to exercise the right "effectively" in order to attract constitutional protection. An activity which simply makes the exercise of the right more convenient is not sufficient to attract this protection. 25. Klebuc J. rejected this line of reasoning and, in doing so, referred to a number of cases which have held that the paragraph 12 right to hunt includes the right to hunt by any method that an Indian chooses whether or not such is otherwise prohibited by provincial law provided only that the hunting method employed does not endanger the safety of others. He said that there was no mention of the element of necessity in these cases and, therefore, it was not an essential indicia for determining whether an activity comprises part of the right to hunt. Queen's Bench Judgment, Tab L, at pp

14 26. The specific cases that Klebuc J. referred to were Horseman, Moosehunrer, Mclntyre, Myran and Bombay. It is submitted that he erred in relying upon these cases for the proposition that activities related to hunting but not necessary for effective hunting may be included within the constitutionally protected right. None of these cases were concerned with the question of what incidental activities may be included within a constitutionally protected right to hunt. Horseman and Mclntyre were concerned with the inter-relationship between paragraph 12 and the Treaties. Moosehunter dealt with rights of access to occupied Crown land. Myran established the proposition that Indians exercising their paragraph 12 rights do not have the right to hunt dangerously or without regard for the safety of other persons in the vicinity. Bombay considered issues related to the infringement of a Treaty right to fish by regulations which restricted the type of fishing gear than an Indian could use and which limited the times of the year when he could fish. Horseman, supra. Mclntyre, supra. Moosehunter, supra. R. v. Myran, [I S.C.R R. v. Bombay, [I C.N.L.R. 92 (Ont. C.A.). 27. There are a number of other paragraph 12 cases that have dealt more directly with methods of hunting. The earliest was Wesley in which it was held that an Indian exercising his paragraph 12 rights could hunt with dogs notwithstanding that this particular method of hunting was prohibited under provincial legislation. Similar cases have held that Indians can hunt at night with lights (Prince) and with prohibited types of ammunition (MacPherson).

15 R. v. Wesley, [I W.W.R. 337 (Alta. S.C.-A.D.). R. v. Prince, [I9641 S.C.R. 81. R. v. MacPherson, [I W.W.R. 640, (Man. C.A.). 28. The gist of these decisions was summarized by Dickson J. in Myran as follows: I think it is clear from Prince and Myran that an Indian of the Province is free to hunt or trap game in such numbers, at such times of the year, by such means or methods and with such contrivances, as he may wish, provided he is doing so in order to obtain food for his own use and on unoccupied Crown lands or other lands to which he may have a right of access. But that is not to say that he has the right to hunt dangerously and without regard for the safety of other persons in the vicinity. Prince and Myran deals with "method". Neither that case nor those which preceded it dealt with protection of human life. Myran, supra, at pp The cases concerning methods of hunting do not involve consideration of what non-hunting activities are included within the constitutionally protected right to hunt. Different methods of hunting are all "hunting" and, therefore, squarely fall within the right to hunt. It is therefore submitted that these cases provide little guidance with respect to the issue raised in this case. 30. Notwithstanding his rejection of the test proposed by the Crown, Klebuc J. chose not to adopt the "reasonably related" test proposed by the Respondent either. He did not believe that a simple nexus between the impeached activity and the act of hunting was sufficient to clothe the act with the protection afforded by paragraph 12. He felt that the case law justified the application of an overriding quality of restraint or a requirement of reasonableness at least in some circumstances. He summarized his conclusion as follows:

16 [T]he reasonably related test is inadequate when applied to activities that are ancillary to the act of hunting. Therefore, it should not be regarded as the exclusive test to be applied with the exception where a direct nexus exists between the activity and the act of hunting of the nature discussed in Simon. In my view, where ancillary activities are involved, the test of "reasonableness" or "reasonable restraint" must be applied with the sensitivity discussed by Hall J.A. [in Myran v. The Queen, [I W.W.R. 512, (Man. C.A.)] and Lamer J. in Sioui. Queen's Bench Judgment, Tab L, at p In effect, Klebuc J. held that where a direct nexus exists between a non-hunting activity and the act of hunting, the non-hunting activity is constitutionally protected. However, when the nonhunting activity is merely ancillary to the act of hunting, it will be constitutionally protected only if it is a reasonable activity for the hunter to be engaged in. It is submitted that Klebuc J. erred in creating this test. He should not have drawn a distinction between non-hunting activities that have a direct nexus to hunting and non-hunting activities that are merely ancillary to hunting. 32. Klebuc J. was obviously concerned about the "method of hunting" cases that he referred to earlier when he crafted this two-pronged test. He had rejected "necessity" as a relevant consideration in determining whether particular methods of hunting were included within the constitutional right because none of these cases had discussed necessity. Therefore, it is submitted that he created a distinction between these cases and cases like Simon by artificially distinguishing between direct nexus activities and ancillary activities. It is submitted that the true distinction is that the method of hunting cases relate to hunting itself (the constitutionally protected activity) and Simon relates to non-hunting activities which may be constitutionally protected only in certain circumstances (when reasonably incidental to hunting). The distinction, therefore, is between hunting and non-hunting cases. It was

17 wrong for Klebuc J. to create two categories of non-hunting cases. The same test for determining entitlement to constitutional protection should be applied to all non-hunting cases. 33. Klebuc J. goes on to apply his test with respect to ancillary activities to the facts of this case. That test, in effect, is a blending of the reasonably related test proposed by the Respondent and the reasonably necessary test proposed by the Crown. It is submitted that the Klebuc test is impractical, unworkable and ought not to be adopted by this Honourable Court. 34. Klebuc J. discusses a number of factors that ought to be considered in the application of his test. He suggests that "the alleged benefit to the hunter must be weighed against any damage or difficulty created by the activity to the environment or the preservation of wildlife" and that its impact on competing social purposes and rights must also be taken into account. He found that the cabin built by the Respondent was a considerable benefit to hi because of the significant distance from his residence to Mistohay Lake. When this fact was combined with his longstanding practice of hunting in the area, Klebuc J. concluded that the Respondent's decision to build a cabin at Mistohay Lake was "reasonable". Klebuc J. refused to consider the obvious incompatibility between the Respondent's activities and the Province's use of the land as a Provincial Park because, in his view, there was no evidence on this point. Queen's Bench Judgment, Tab L, at pp As an aside, it is pointed out that Klebuc J. erred in construing the evidence when he held that the Respondent lived a considerable distance from Mistohay Lake. The evidence did not establish how

18 far he lived from the cabin. There was no evidence to suggest that if the Respondent was required to commute to Mistohay Lake on a daily basis that his travel costs and loss of time would be substantial as suggested by Klebuc J. In the Crown's submission, however, these facts are ultimately irrelevant as it is the Crown's position that there is no right to build a cabin in a Provincial Park or upon any other Crown lands to which Indians have a right of access for the purposes of hunting ifrespective of the distance that the individual lives from the hunting area. Queen's Bench Judgment, Tab L, at p The main difficulty that the Crown has with the test proposed by Klebuc J. is that it is impossible to apply in a practical fashion. The weighing of the various benefits and burdens that Klebuc J. suggests must be taken into account make it impossible to predict with any degree of accuracy whether an individual Indian is or is not constitutionally entitled to build a cabin at a particular location. For example, if someone lived farther from Mistohay Lake than the Respondent but did not have a longstanding connection to the area, would he be entitled to build a cabin there? What if the individual hunted there more frequently than the Respondent? What if he hunted there less frequently? The existence or non-existence of such a significant constitutional right as a right to build a permanent structure on occupied Crown land should not depend upon such subjective factors. This Honourable Court should not countenance the degree of uncertainty in the law that would be introduced by the acceptance of the Klebuc test. 37. The example given by Klebuc J. himself is a perfect illustration of the dilemma that will result from the application of his test. He refers to an Indian hunter who lives in Toronto, Ontario. This

19 person clearly has just as much right to hunt in the Mistohay Lake area of the Meadow Lake Provincial Park as does the Respondent. In Frank, the Supreme Court held that paragraph 12 rights may be exercised by any Indian who happens to be within the boundaries of the Province at any particular time irrespective of his or her ordinary place of residence. Paragraph 12 rights are not limited to Saskatchewan Indians or Indians who live in any particular region of the Province. R. v. Frank, S.C.R In Klebuc J.'s example, the Toronto hunter decides to construct an airstrip and a large house near Mistohay Lake in order to facilitate hunting expeditions to the area. Klebuc J. concludes that the Toronto hunter would not have a right to do this. He says that the activities would not be "reasonable" in the circumstances. With respect, the Crown fails to see a logical distinction between the Toronto hypothetical and the facts of this case which would justify a different application of the law. While constructing a landing strip may not at first blush appear to be related to hunting, if it has been built to facilitate access to a hunting area or to make it more convenient for the hunter to reach the hunting area, it would appear to the Crown to be not fundamentally different than building a cabin at the hunting area. Certainly, Klebuc J. would say that the Respondent's construction of a road from Provincial Highway No. 224 to his cabin is just as "related" to his hunting as construction of the cabin itself. Presumably, Klebuc J. was concerned that the connection between construction of a landing strip and hunting was too remote or that it was unnecessary to build a landing strip because the Toronto hunter could use the nearby airport at Meadow Lake. However, these are matters of convenience and the same could be said for the Respondent's construction of a cabin. In any event,

20 it appears to the Crown that if the Klebuc test is adopted the airstrip hypothetical cannot be dismissed out of hand and it must be acknowledged that the construction of the airstrip is ancillary to hunting and, therefore, is subject to the reasonableness test. 39. The large house hypothetical is even more difficult to understand. Surely, there can be no distinction between a large house and a small house if such is required as a shelter or base camp in connection with hunting activities. As well, the relative comforts of the cabin or its aesthetic appearance cannot, logically, be a consideration with respect to its nexus to hunting. The only way that these factors could be considered would be if it was suggested that the existence of.a large house with all of the modem amenities was evidence that its true purpose was not related to hunting. Klebuc J. concludes that the construction of a large house by the Toronto hunter would not be allowed. However, it appears to the Crown that quite to the contrary of Klebuc J.'s conclusion that the application of his test ought to result in the conclusion that the Toronto hunter has an even greater need of a cabin in the area than a local hunter and, therefore, must have at least the same right to construct such a cabin as a local hunter. 40. It is further submitted that in order to adopt the Klebuc test this Honourable Court will have to depart from the fundamental principles which have governed the interpretation of paragraph 12 for the past 65 years. Klebuc J. suggests that in determining whether ancillary activities are part of the constitutionally protected right, it is appropriate for the Court to consider the impact of those activities on conservation and the preservation of wildlife. However, it has been accepted since as early as 1932 in Wesley that Indians hunting within the protection of paragraph 12 are not subject to provincial laws

21 designed for the preservation of wildlife. Klebuc J. seems to be saying that those laws could apply in certain circumstances given the balancing of benefits and burdens that he proposes. Such a conclusion is not warranted by either the words of paragraph 12 or the existing case law which has consistently held that hdian hunters are absolutely immune from provincial game laws when they are hunting within the protection of paragraph 12. If Klebuc J. is suggesting that those laws could apply when significant conservation concerns exist, while the Attorney General is certainly sympathetic with this view, it is submitted that he is wrong in law. Wesley, supra. 41. The only way to rationalize his conclusion with the existing authorities would be to say that provincial conservation laws do not apply to paragraph 12 hunting but may to apply to ancillary activities protected by paragraph 12. It is submitted that this is too fine a distinction to make and that such a distinction was not intended by Klebuc J. It is, rather, suggested that to the extent that ancillary activities are brought within the protection of paragraph 12 they must be considered to be exempt from provincial conservation laws to the same extent as paragraph 12 hunting activities are exempt from those laws. The application of the law is in no way related to the impact of the activity on the conservation of wildlife. To hold otherwise would be to create two sets of immunities from provincial game laws within paragraph 12 - one absolute immunity related to hunting activities and one contingent immunity relating to ancillary activities dependent upon the outcome of the balancing test. It is submitted that this two-tiered approach to paragraph 12 was never intended by the parties to the Transfer Agreement and would leave the law in an unnecessarily complex state.

22 42. It is submitted that for all of these reasons the Klebuc test ought to be rejected by this Honourable Court. The proper test to be applied as stated in Simon is, simply, whether the activities of the Respondent are "reasonably incidental" to the act of hunting. If so, they are within the constitutionally protected right. If not, the Respondent is subject to all of the provisions of provincial law, including The Parks Regulations, As discussed earlier, it is the position of the Attorney General that the reasonably incidental test set out in Simon ought to be interpreted as requiring an element of necessity -- in order for the non-hunting activity to fall within the constitutionally protected right, it must be related to something that is required in order to make the right to hunt effective or, described from the opposite perspective, something without which the right to hunt would be ineffective. 44. It is submitted that building a cabin falls far short of being an activity of this sort. As noted by Judge Morris, hunting and fishing are by their very nature transitory activities. Generally speaking, hunters are away from home only a few hours at a time. Even when on a hunting expedition, such as that described by the Respondent, they are away from home for only a few days at a time. In such cases, shelter can be obtained by staying with friends or staying in a hotel. In some cases, where the hunting expedition is to a remote area, it may be justifiable to erect a temporary shelter, like a tent. However, it is the position of the Attorney General that under no circumstances is the construction of a permanent structure, like a log cabin, required or necessary in order to permit the effective exercise of the paragraph 12 right. Therefore, such an activity is not part of the right.

23 45. Klebuc J. chastised the Trial Judge for her finding with respect to what is involved in hunting. He said that there was no evidence that hunting and fishing were "temporary activities" and held that the Trial Judge could not take judicial notice of what is involved in hunting or the materiality of a cabin to hunting. It is submitted that Klebuc J. was wrong on this point. To begin with, there was some evidence relating to this issue before Judge Morris. Second, she was entitled to take judicial notice of what is generally involved in hunting as such is a matter of common knowledge throughout Saskatchewan and, in particular, is a matter of common knowiedge in the Pierceland district. This Honourable Court has relied upon this principle to take judicial notice of the effect of a picket line on unionized workers and sympathizers. The facts that the Trial Judge took judicial notice of in this case are similar. They are generally known and, therefore, she was entitled to take judicial notice of them. Testimony of John Sundown, Transcript, at pp Testimony of Philip Kahpeepatow, Transcript, at pp J. Sopinka, S.N. Ledeman, A.W. Bryant, The Law of Evidence in Canada (Butterworths, 1992). Gnrry v. Sherritt Gordon Mines Ltd., [I W. W.R. 289 (Sask. C.A.), at p The Trial Judge's conclusion that the construction of a log cabin was not "reasonably incidental" to the act of hunting was reasonable and was fully supported by the evidence. The Respondent does not need to have a cabin at this location in the Meadow Lake Provincia1,Park in order to effectively exercise his paragraph 12 rights there. The area is easily accessible by road. The cabin is within 114 mile of a main highway. The Respondent can drive directly to the cabin. It is only a

24 short distance from his home. The absence of a cabin will in no way thwart the exercise of his rights or render them meaningless. 47. The activities which the Respondent seeks to have this Honourable Court.recognize as necessary incidents of his paragraph 12 right to hunt are fundamentally different than the activities so recognized in Simon. In that case, the right to hunt was held to include the right to possess a gun and ammunition in a safe manner and to transport them from the hunter's home to the hunting area. Obviously, possession of the means to kill game is essential to the exercise of the right to hunt. It is submitted that no analogy can be drawn between the right to possess weapons and the right to build a cabin. The latter is, quite simply, not required to effectively exercise the right while the former is. Simon, supra. 48. The only other case that the Attorney General is aware of that has considered the issue of what is "reasonably incidental" to Treaty hunting rights is Claxton v. Saanichton Marina Ltd: In that case it was held that a Treaty right to "carry on their fisheries as formerly" included the right to travel to and from the fishery. As with Simon, the activities upheld in Claxton are fundamentally different than the activities in question in this case. Claxton v. Saanichton Marina Ltd., [I C.N.L.R. 46, (B.C.C.A.), at p In the Courts below, the Respondent relied extensively upon the decision of the Supreme Court in Sioui. The accused in Sioui were Huron Indians. They were charged with a number of offences related to cutting down trees, camping and making fires in Jacques-Cartier Park contrary to regulations

25 made under the Parks Act. While the charges that the accused in Sioui faced were similar to the charges faced by the Respondent in this case, it is submitted that the issues in the two cases are quite different and, therefore, Sioui is of little assistance to the Respondent. R. v. Sioui, [1990] 1 S.C.R Parks Act, R.S.Q. 1977, c. P The issue that the Supreme Court addressed in Sioui related to the territorial scope of the Treaty. The Treaty right in question was a right to the "free exercise of their religion and customs". There was no question that the activities of the accused were part of their religious customs and rights and, therefore, were within the Treaty right. No issue arose as to what incidental activities were also protected by the Treaty right, as has arisen in this case. The Treaty itself did not say where the Huron could exercise their rights. Therefore, the Court had to determine the territorial scope of the Treaty. The Court concluded, on the basis of its understanding of what the parties intended at the time that the Treaty was made, that the rights were exercisable throughout the territory frequented by the Huron in 1760 except upon private lands or occupied Crown lands where the exercise of the Treaty right would be incompatible with the particular use being made of the land by the Crown. The Court considered Jacques-Cartier Park to be occupied Crown land. It then considered whether the Hurons' exercise of their rights within the park was incompatible with the Crown's use of the land as a park. The Court concluded, on the specific facts of the case, that there was no incompatibility. Sioui, supra, at pp In this case, there is no question about the geographical area where the Respondent can exercise his paragraph 12 rights. Those rights may be exercised throughout the prairie provinces on any

26 unoccupied Crown lands or other lands to which the Respondent has a right of access for the purpose of hunting. The Attorney General has already admitted that the Respondent can exercise his paragraph 12 hunting rights in the Meadow Lake Provincial Park. The issue in this case is the content of those rights. Therefore, it is submitted that the rationale applied by the Supreme Court in Sioui to determine the geographical scope of the Treaty of 1760 cannot be applied to determine the issue in this case. The test cannot be whether the ancillary activity is compatible with the use being made of the lands by the Crown. The geographical scope of the paragraph 12 right, in this context, is determined by the right of access cases. Once a right of access exists to particular occupied Crown lands, paragraph 12 rights may be exercised on those lands and, it is submitted, that this must include the ancillary activities that are included within the right. 52. Although it has not been expressed in quite this fashion, an issue of "compatibility" does arise in the right of access cases. For example, in Sutherfand, it was held that once limited hunting is permitted on occupied Crown lands, Indians have a sufficient right of access to those lands for the purposes of exercising their paragraph 12 rights. If limited hunting is allowed on the land, hunting must be compatible with the Crown's use of the land. In this case, hunting is allowed in the park and, therefore, it must be concluded that hunting is compatible with the Crown's use of the land as a park. Logic dictates that this compatibility must extend to hunting and all of its reasonably incidental activities. Sutl~erland, supra.

27 53. It is further submitted that Sioui provides no authority for holding that the activities in question in this case should be considered to be part of the constitutionally protected right to hunt. The activities of the Huron Indians in question in Sioui were of a fundamentally different character than the activities of the Respondent. Those activities were described by the Court as follows: [Tlhe collecting of a few plants, the setting up of a tent using a few branches picked up in the area and the making of a fxe according to the rules dictated by caution to avoid fires. Sioui, supra, at p The activities in question in Sioui were held to fall squarely within the Treaty right to the "free exercise of their religion and their customs". The activities were not ancillary to the exercise of the Treaty right and, therefore, are not analogous to the activities in issue in this case. Furthermore, the Accused in Sioui had temporarily occupied a portion of the park for the purpose of exercising their Treaty right. In this case, the Respondent has purported to permanently occupy a portion of the park to the exclusion of others. 55. The Attorney General disputes the Respondent's assertion that building a cabin is an activity that is reasonably incidental to hunting and says that any right to build cabins within the park without regard for provincial regulations is incompatible with the Province's use of the land as a park. 56. In her Judgment, Judge Morris referred to The Parks Act to determine the purpose of the park. The Supreme Court referred to Quebec's parks legislation for a similar purpose in Sioui and, therefore, it is submitted that it was appropriate for her to do so. Section 3 of the Act reads as follows:

28 3(1) Park land is dedicated to the people of Saskatchewan and visitors to Saskatchewan for their enjoyment and education. (2) The natural, prehistoric and historical resources of park land are to be maintained for the benefit of future generations. 57. She also referred to section 4(4) of the Act which refers specifically to natural environment parks such as the Meadow Lake Provincial Park. It reads as follows: 4(4) The provincial parks described in Part C of Schedule 1 are designated as natural environment parks and are to be used primarily for the pursuit of outdoor recreational activities that are consistent with the protection of natural landscapes. 58. The construction of a log cabin is obviously inconsistent with the Crown's stated purpose for establishing the park. If the Respondent is permitted to build a cabin within the park, the land will not be dedicated to the people of Saskatchewan and visitors. It will be dedicated to him. If the Respondent is permitted to cut down trees in the park to build the cabin, the natural resources of the park will not be maintained for the benefit of future generations. They will be used by the Respondent for his own personal and immediate benefit. 59. As well, if the Respondent has a right to build a cabin wherever he may exercise his paragraph 12 rights, all other Indians who live in Saskatchewan or who might come to Saskatchewan have a similar right. The right is not limited to members of the Joseph Bighead First Nation nor is it limited to members of First Nations who are parties to Treaty No. 6. As noted earlier, the Supreme Court held in Frank that any Indian who happened to be within the boundaries of the Province at any particular time, irrespective of normal residence, may exercise paragraph 12 rights. Therefore, if the decision of Klebuc J. is upheld, there is a very real prospect of hundreds or thousands of cabins

29 appearing throughout this park and others in the Province. In fact, there is nothing in Klebuc J.'s decision to suggest that the Respondent himself would not also be entitled to build other cabins at other locations within the park or elsewhere where he can also exercise his hunting rights. The possibility of a hodge-podge of cabins springing up throughout the park without park authorities having any ability to control their whereabouts will obviously render the area unsuitable as a public park. It will become the personal domain of the Indian hunters who have appropriated areas of the park for their own particular use. Frank, supra. 60. The arguments to this point have focused on the competing definitions of "reasonably incidental" put forth by the Crown and the Respondent. It is, however, acknowledged that this Honourable Court could dispose of this appeal without the necessity of resolving this debate. The Concise Oxford Dictionary, 7th ed., defines "incident", inter alia, as a "subordinate or accessory event". The Court could, therefore, hold that "reasonably incidental" simply means. "reasonably incidental" and that activities that are reasonably incidental to hunting fall somewhere in between those activities that are reasonably necessary for hunting and those activities that are merely reasonably related to hunting. If this Honourable Court chooses to adopt this approach, it remains the position of the Attorney General that building a log cabin is not in any circumstances reasonably incidental to the act of hunting, for all of the reasons set out earlier in this Factum. Concise Oxford Dictionary, 7th ed. (Clarendon Press, 1982), at p. 505.

30 61. In conclusion, it is submitted that construction of a log cabin is not reasonably incidental to the act of hunting and, therefore, is not a constitutionally protected activity. As a result, the Respondent is subject to all the provisions of The Parks Regulations, 1991 when building a cabin within a Provincial Park and ought to have been convicted of the charge against him.

31 l!aml NATURE OF ORDER SOUGHT 62. It is submitted that this appeal should be allowed, the acquittal entered by Klebuc J. should be set aside and the conviction originally imposed by Judge Morris should be restored. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED at Regina, Saskatchewan, this 30th day of November, I c P. Mitch McAdam Counsel for the Attorney General for Saskatchewan