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Daniels v. White

[1968] SCR 517 Court SCC Decision date 1968-04-29 English

Contents
RONALD ADDISON WHITE and
R
A HER MAJESTY THE QUEEN
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA The appellant is an Indian from the Province of Manitoba and was convicted of having game birds in his possession, contrary to s. 12(1) of the Migratory Birds Convention Act, R.S.C. 1952, c. 179. On appeal by way of trial de novo, the conviction was quashed. On a further appeal to the Court of Appeal, the conviction was restored by a majority judgment. The appellant was granted leave to appeal to this Court. The issue in the appeal is whether para. of an agreement made on December 14, 1929, between the government of Canada and the government of Manitoba (approved by statutes of the United Kingdom Parliament, the Parliament of Canada and the Legislature of Manitoba) exempts the appellant from compliance with the Migratory Birds Convention Act and the regulations made thereunder. Paragraph provides that..."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 might have a right of access".
Held (Cartwright CJ. and Ritchie, Hall and Spence JJ. dissenting): The appeal should be dismissed.
Per Fauteux, Abbott, Martland, Judson and Pigeon JJ.: Paragraph of the agreement did not have the effect of exempting the appellant from compliance with the Migratory Birds Convention Act and the regulations made thereunder. The whole tenor of the agreement is that of a conveyance of land imposing specified obligations and restrictions on the transferee, not on the transferor. This applied particularly to para. which made provincial game laws applicable to Indians in the province subject to the proviso contained therein. That only provincial game laws were in the contemplation of the parties, and not federal enactments, is underscored by the words "which the Province hereby assures to them" in para. Care was taken in framing para. that the legislature of the province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands. The agreement and the legislation confirm- Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
COUR SUPRtME DU CANADA ing it did no more than impose specified obligations and restrictions upon the transferee province. They did not repeal by implication a statute of Canada giving effect to an international convention. WHITE Per Pigeon J.: This was a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. The words in para. 13 of the agreement "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" contemplate the laws of Manitoba. It is perfectly possible without doing violence to the language used to construe para. as applicable solely to provincial laws and thus to avoid any conflict. Furthermore, it would not only be foreign to the declared object of the agreement but even inconsistent with it, to provide for an implied modification of the Migratory Birds Convention Act.
Per Cartwright C.J., dissenting: The words "which the Province hereby assures to them" do not cut down the right of hunting which in plain and unequivocal words para. says the Indians shall have. The rights given to the Indians by the words of para. have been, since 1930, enshrined in our Constitution and given the force of law "notwithstanding anything in... any Act of the Parliament of Canada". There is no rule which permits to add after the words "Canada" the words "except the Migratory Birds Convention Act".
Per Ritchie, Hall and Spence JJ., dissenting: The words in para. of the agreement "which the Province hereby assures to them" do not have the effect of limiting the rights thereby accorded to the Indians, to provincial rights, but rather to constitute additional assurance of the general rights described in that paragraph.
In view of the words of s. 1 of the B.N.A. Act, 1930, giving the agreement the force of law "notwithstanding anything in... any Act of the Parliament of Canada", the agreement takes precedence over the Migratory Birds Convention Act and the regulations made thereunder, with the result that these enactments do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in para.
Droit criminel-Indiens-Droit de chasse des Indiens du Manitoba-Possession de gibier en temps prohib6 contrairement au statut-Convention entre le Canada et le Manitoba dispense-t-elle d'obbir au statut -Loi sur les Indiens, S.R.C. 1952, c. 149-Loi sur la Convention concernant les oiseaux migrateurs, SIR.C. 1952, c. 179, art. 12(1)-Loi des ressources naturelles du Manitoba, 1930 (Can.), c. 29; 1930 (Man.), c. SO-Acte de l'Amirique du Nord britannique, c. 26. L'appelant, un Indien du Manitoba, a t6 d4clar6 coupable d'avoir eu en sa possession du gibier contrairement A l'art. 12(1) de la Loi sur la Convention concernant les oiseaux migrateurs, S.R.C. 1952, c. 179. Sur appel par voie de procis de novo, la d~claration de culpabilit6 a 6t6 annulbe. Sur appel subs6quent A la Cour d'appel, la d~claration de culpabilit6 a 6t6 r6tablie par un jugement majoritaire. L'appelant a obtenu la permission d'appeler A cette Cour. La question b d6battre est de savoir si le para. de la convention faite le d6cembre 1929 entre le gouvernement du Canada et le gouvernement du Manitoba (ratifi6e par les statuts du parlement du Royaume-Uni, du parlement du Canada et de la 16gislature du Manitoba) dispense l'appelant d'obbir A la Loi sur la Convention concernant les oiseaux migrateurs et les riglements 6tablis en vertu d'icelle. Le para. 13 stipule que... ale Canada consent A ce que les lois relatives au gibier et qui sont en vigueur de temps h autre dans la province, s'appliquent aux Indiens dans les limites de la province; toutefois, lesdits Indiens auront le droit que la province leur assure par les pr6sentes de chasser et de prendre le gibier au pi~ge et de picher le poisson, pour se nourrir en toute saison de l'ann~e sur toutes les terres inoccup6es de la Couronne et sur toutes les autres terres auxquelles lesdits Indiens peuvent avoir un droit d'accs>.
Arrat: L'appel doit 6tre rejet6, le Juge en Chef Cartwright et les Juges Ritchie, Hall et Spence 6tant dissidents.
Les Juges Fauteux, Abbott, Martland, Judson et Pigeon: Le paragraphe de la convention ne dispense pas l'appelant d'ob6ir A la Loi sur la Convention concernant les oiseaux migrateurs et aux riglements 6tablis en vertu d'icelle. La convention est un acte de transmission de propri6t6 imposant des obligations et des restrictions sp~cifiques au cessionnaire, mais non pas au c6dant. Ceci s'applique particulibrement au para. qui rend les lois de chasse provinciales applicables aux Indiens dans la province sous reserve de la condition y privue. Les mots cque la province leur assure par les pr~sentes, dans le para. 13 montrent bien que les parties n'avaient en vue que les lois de chasse provinciales et non pas les lois fid6rales. On a pris soin de s'assurer que la province ne pourrait pas unilat6ralement porter atteinte au droit des Indiens de chasser pour se nourrir sur les terres inoccup6es de la Couronne. La convention ainsi que la 16gislation la ratifiant n'ont pas d'autre effet que d'imposer des obligations et des restrictions sp~cifiques h la province cessionnaire. Elles n'ont pas eu pour effet d'abroger implicitement un statut du Canada qui donnait effet h une convention internationale.
Le Juge Pigeon: Il s'agit d'un cas oji l'on doit appliquer la rigle d'interpritation disant que le parlement n'est pas cens6 16gif6rer A l'encontre d'un trait6 ou d'une manibre incompatible avec les convenances et les rigles 6tablies du droit international. Dans le para. de la convention, les mots ale Canada consent h cc que les lois relatives au gibier et qui sont en vigueur de temps A autre dans la province, s'appliquent aux Indiens dans les limites de la province> visent les lois du Manitoba. Sans faire violence aux mots dont on s'est servi, il est parfaitement possible d'interpriter ce para. comme s'appliquant uniquement aux lois provinciales et ainsi d'6viter tout conflit. Interpriter ce paragraphe comme une modification implicite de la Loi sur la Convention concernant les oiseaux migrateurs serait non seulement s'61oigner de l'objet de la convention mais aller A 1'encontre. Le Juge en Chef Cartwright, dissident: Les mots eque la province leur assure par les pr6sentes, n'enlbvent rien au droit de chasser qu'en des termes clairs et non 6quivoques le para. 13 dit que les Indiens posshdent. Les droits donnis aux Indiens par le para. 13 ont t6, depuis 1930, consacris par notre constitution et sont devenus la loi dnonobstant tout ce qui est contenu... dans toute loi du Parlement du Canadam. II n'y a aucune r~gle qui permette d'ajouter apris les mots <Canada> les mots cexcept6 la Loi sur la Convention concernant les oiseaux migrateursp.
WarPE Les Juges Ritchie, Hall et Spence, dissidents: Dans le para. 13 de la convention, les mots eque la province leur assure par les pr~sentes> n'ont pas I'effet de limiter aux seuls droits provinciaux les droits qui y sont accordis aux Indiens, mais au contraire constituent une garantie additionnelle des droits g6n6raux d6crits dans ce paragraphe.
Vu les termes de i'art. 1 de i'Acte de I'Amgrique du Nord britannique, 1930, donnant h la convention force de loi anonobstant tout ce qui est contenu... dans toute 1oi du Parlement du Canada,, la convention a priorit6 sur la Loi sur la Convention concernant les oiseaux migrateurs et les r~glements 6tablis en vertu d'icelle. II en r6sulte que cette 16gislation ne s'applique pas aux Indiens du Manitoba lorsqu'ils chassent pour se nourrir les oiseaux migrateurs dans les endroits sp6cifids au para. 13.
APPEL d'un jugement de la Cour d'appel du Manitoba', r6tablissant une d~claration de culpabilit6. Appel rejet6, le Juge en Chef Cartwright et les Juges Ritchie, Hall et Spence 6tant dissidents.
APPEAL from a judgment of the Court of Appeal of Manitoba', restoring the appellant's conviction. Appeal dismissed, Cartwright C.J. and Ritchie, Hall and Spence JJ. dissenting.
William R. Martin, for the appellant.
D. H. Christie, Q.C., for the respondents.
THE CHIEF JUSTICE (dissenting):-The question to be determined on this appeal, the relevant facts (all of which are undisputed) and the historical background in the light of which the controversy must be considered are set out in the reasons of other members of the Court.
That the problem is not free from difficulty is attested by the differences of opinion in the Courts below and in this Court.
Since the decisions of this Court in Sikyea v. The Queen and The Queen v. Georges, it must be accepted 1 (1966), 56 W.W.R. 234, 49 C.R.1, 57 D.L.R. (2d) 365.
2 [1964] S.C.R. 642, 49 W.W.R. 306, 44 C.R. 266, [1965] 2 C.C.C. 129, 50 DL.R. (2d) 80.
3 [19661 S.C.R. 267, 47 C.R. 382, [19661 3 C.C.C. 137, 55 D.L.R. (2d) that, if it were not for the provisions contained in section 13 of the agreement between the Government of Canada and the Government of Manitoba which was approved and given the force of law by Statutes of the Imperial Parliament, the Parliament of Canada and the Legislature of Manitoba, the conviction of the appellant would have to
C.J. be upheld.
Nothing would be gained by my repeating the reasons which I gave in George's case for thinking that both it and
Sikyea's case should have been decided differently. I accept those decisions.
The first question before us is as to the meaning of the words used in section 13 of the agreement and particularly the following:
I share the view of my brothers Ritchie and Hall that the words "which the Province hereby assures to them" do not cut down "the right of hunting, trapping and fishing game and fish for food at all seasons of the year" which in plain and unequivocal words the clause says that the Indians shall have.
In Sikyea's case and George's case the Court decided that this right, secured to the Indians by treaty, could be, and as a matter of construction had been abrogated by the terms of the Migratory Birds Convention Act and the
Regulations made thereunder. In George's case the Court held that while s. 87 of the Indian Act preserved the treaty rights of the Indians against encroachment by laws within the competency of the Provincial Legislature it had no such effect in regard to an Act of Parliament.
The situation in the case at bar is different. The right of hunting, trapping and fishing given to the Indians by the words of section 13 quoted above has been, since 1930, enshrined in an amendment to our Constitution and given:
I find it impossible to uphold the conviction of the appellant unless we are able to say that, by the application of some rule of construction, there should be inserted in s. 1 of the British North America Act, 1930, immediately after the words "Parliament of Canada" the words "except the Migratory Birds Convention Act". I know of no rule which permits us to take such a course.
c.J.
I would dispose of the appeal as proposed by my brother Hall.
JuDsoN J.:-The appellant is an Indian within the meaning of para. (g) of subs. (1) of s. 2 of the Indian Act, R.S.C. 1952, 149. He was convicted on December 7, 1964, of having in his possession
On an appeal by way of trial de novo his conviction was quashed. On a further appeal to the Court of Appeal of Manitoba', his conviction was restored and the sentence affirmed by a majority judgment. He appeals to this Court with leave.
The issue in this appeal is whether by operation of para. 13 of the agreement made on December 14, 1929, between the Government of the Dominion of Canada and the Government of the Province of Manitoba (hereinafter referred to as "the agreement") the appellant was exempted from compliance with the Migratory Birds Convention Act and Regulations made thereunder bearing in mind that at the relevant time and place he was an Indian who had hunted game for food on land to which he had a right of access. There can be no doubt that apart from para. 13 of the agreement above quoted the appellant was, in the circumstances of this case, subject to the Migratory Birds Convention Act and Regulations. See: Sikyea v. The Queen'; The Queen v. George ; Sigeareak v. The Queen
Paragraph 13 of the agreement provides:
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 HI 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 Judson J. 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. Paragraph 13 is part of an agreement dated December 14, 1929, between the Government of Canada and the Government of the Province of Manitoba for the transfer to the province from the Dominion of all ungranted Crown lands. This agreement was approved by the Manitoba Legislature and by Parliament. (Statutes of Manitoba, 1930, c. 30; Statutes of Canada, 1930, c. 29.) It was subsequently affirmed by the British North America Act, 1930, 20-21 Geo. V., c. 26. Three similar agreements involving Alberta, Saskatchewan and British Columbia were subsequently affirmed.
Section 1 of the British North America Act 1930 rovides:

1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the British North America Act, 1867, or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid. Prior to the coming into force of the agreement, title to all ungranted Crown lands in the Province of Manitoba was vested in the Dominion. Briefly, the relevant history is that by the Rupert's Land Act, 1868, 31-32 Vict., c. 105 (R.S.C. 1952, vol. VI, p. 99) provision was made for the surrender of Rupert's Land by the Hudson's Bay Company and for the acceptance thereof by Her Majesty. Section 3 of the said Act provided:

that such Surrender shall not be accepted by Her Majesty until the Terms and Conditions upon which Rupert's Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an address to Her Majesty from both the Houses of the Parliament of Canada in pursuance of the 146th Section of the British North America Act 1867.
By Imperial Order in Council of June 23, 1870, Rupert's Land was admitted into and became part of the Dominion of Canada effective July 15, 1870-R.S.C. 1952, vol. VI, p. 113. By operation of the Manitoba Act 1870, 33 Vict., c. 3 (Canada), subsequently affirmed with retrospective effect by the Parliament of the United Kingdom (B.N.A. Act, 1871, 34-35 Vict., c. 28, s. 5, R.S.C. 1952, vol. VI, p. 146), the Province of Manitoba was carved out of J. Rupert's Land and came into being on the same date Rupert's Land entered Confederation. By s. 30 of the Manitoba Act, 1870, all ungranted or waste lands in the Province vested in the Crown to be administered by the Government of Canada for the purposes of the Dominion. The Crown in right of the Dominion being the owner of all Crown lands, including the mines and minerals therein, in the Province of Manitoba that Province, together with Alberta and Saskatchewan, was in a less favourable condition than the other Provinces who by operation of s. 109 of the British North America Act, 1867, retained Crown lands upon entering Confederation. The purpose of the agreement was to transfer these lands to Manitoba in order that it might be in the same position as the other provinces under s. 109 of the British North America Act, 1867. This is apparent from the preamble to and paragraph 1 of the agreement and from the following cases where the matter was under consideration:
The whole tenor of the agreement is that of a conveyance of land imposing specified obligations and restrictions on the transferee, not on the transferor. This applies, in particular, to paragraph 13, which makes provincial game laws applicable to Indians in the province subject to the proviso contained therein. That only provincial game laws were in the contemplation of the parties, and not federal enactments, is underscored by the words "which the Prov- wIarE ince hereby assures to them" in para. 13. As indicated by para. 11 of the agreement and para. 10 of the Alberta and Judson J. Saskatchewan agreements, Canada, in negotiating these agreements, was mindful of the fact it had treaty obligations with Indians on the Prairies. These treaties, among other things, dealt with hunting by Indians on unoccupied lands. For example, treaties 5 and 6, which cover portions of Manitoba, Saskatchewan and Alberta, provide:
Her Majesty further agrees with Her said Indians, that they, the said
Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of
Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes, by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.
Treaty No. 8, which covers portions of Alberta and Saskatchewan, provides:
And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her
Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.
Treaty No. 7, which covers a portion of Alberta, is to the same effect.
It being the expectation of the parties that the agreement would be given the force of law by the Parliament of the United Kingdom (Paragraph 25) care was taken in framing para. 13 that the Legislature of the province could not unilaterally affect the right of Indians to hunt for food on unoccupied Crown lands. Under the agreement this could only be done by concurrent Statutes of the Parliament of Canada and the Legislature of the province, in accordance with para. 24 thereof.
The majority opinion in the Manitoba Court of Appeal held that the agreement, affirmed as it was by legislation of all interested governments, could not be reconciled with the Migratory Birds Convention Act and that the latter Act must prevail. The Migratory Birds Convention Act, being of general application throughout Canada, ought not THE QUEEN to be construed as circumscribed by the restricted legisla- Judson J. tion that is to be found in the Manitoba Natural Resources Act. It was desirable that a matter within the legislative responsibility of Parliament and governed by international treaty be uniform in application throughout the country unless specifically provided otherwise. The dissenting opinion would have held that para. 13 of the agreement should prevail over the Migratory Birds Convention Act notwithstanding that such a result gives the Act a different effect in Manitoba from that which it has in other parts of Canada.
The Migratory Birds Convention Act was enacted in 1917. It confirms a treaty made between Canada and the United States. The regulations under the Act go back to 1918. (P.C. 871, April 23, 1918). In my opinion, the agreement and the legislation of 1930 confirming it did no more than impose specified obligations and restrictions upon the transferee province. They did not repeal by implication a statute of Canada giving effect to an international convention.
On this subject I adopt the law as stated in 36 Hals., 3rd ed., p. 465:
Repeal by implication is not favoured by the courts for it is to be presumed that Parliament would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so. If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible is that Parliament, unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have effect, and an intention so evinced is as effective as one expressed in terms. The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done; and their reconciliation must in particular be attempted if the later statute provides for its construction as one with the earlier, thereby indicating that Parliament regarded them as compatible, or if the repeals expressly effected by the later statute are so detailed that failure to include the earlier provision amongst them must be regarded as such an indication.
I would dismiss the appeal.
(dissenting):-I have had the benefit of reading the reasons for judgment prepared by other members of the Court in which the circumstances giving rise to this appeal are fully recited.
I agree with Mr. Justice Hall that the words "which the Ritchie Province hereby assures to them" as they occur in paragraph 13 of the agreement which is a schedule to the
Manitoba Natural Resources Act, Statutes of Canada
1930, 29, do not have the effect of limiting the rights thereby accorded to Indians, to provincial rights, but rather that they constitute additional assurance of the general rights described in the said paragraph.
Like my brother Hall, I can only read the provisions of s. 1 of the British North America Act, 1930, as giving the agreement "the force of law notwithstanding anything in
. . any Act of the Parliament of Canada..." and I am therefore of opinion that the agreement takes precedence over the Migratory Birds Convention Act, R.S.C. 1952, c. 179 and the regulations made thereunder, with the result that these enactments do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in section 13.
I would accordingly dispose of this matter in the manner proposed by my brother Hall.
J. (dissenting) :-The facts in this appeal are not in dispute. The appellant, Paul Daniels, who is a Treaty
Indian of the Chemahawin Indian Reserve in the Province of Manitoba, was convicted by Police Magistrate Neil
McPhee, at The Pas, Manitoba, for an offence contrary to subs. (1) of s. 12 of the Migratory Birds Convention Act,
R.S.C. 1952, c. 179. The charge on which he was convicted was that he, the said
Against the conviction the accused appealed to the County
Court by way of trial de novo. His Honour J. W. Thompson, sitting as a judge of the County Court of Manitoba, allowed the appeal and acquitted the accused. The Crown then took an appeal to the Court of Appeal for wHrE ED Manitoba which
Court,
Freedman
J.A.
dissenting, allowed the appeal and restored the conviction. The appel- J.
lant then applied for and was given leave to appeal to this Court.
On July 3, 1964, the appellant had in his possession two wild ducks, one described as a redhead and the other a mallard or greenhead. At a point along the Saskatchewan River, within the Reserve, he had, on his own admission, shot and killed the birds for food and they were being cooked over a campfire when two constables of the R.C.M.P. entered the area. Section 6 of the Migratory Birds Convention Act provides:
Under s. 3(b) (i) "Migratory Game Birds" includes wild ducks. Section 12(1) of the Act provides that 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.
Section 5(1) of the Regulations provides:
Part VII of Schedule A to the Regulations defines the open season for ducks in Manitoba. In the area north of Parallel 53 which includes the Chemahawin Indian Reserve, the open season is from noon September 11 to November 28, inclusive of the closing date.
It is further provided in s. 5(2) of the Regulations: 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. Unless the appellant's status as an Indian in Manitoba permits him to hunt and possess migratory game birds at all seasons of the year, he was properly convicted: Sikyea v. The Queen" 4 .
The appellant claimed immunity from the provisions of the Migratory Birds Convention Act by virtue of the Manitoba Natural Resources Act, Statutes of Canada 1930, c. 29, which he contends exempts him from the operations of the Migratory Birds Convention Act because he is an Indian residing in the Province of Manitoba. In the year 1929, some twelve years after the enactment of the Migratory Birds Convention Act, the Government of Canada and the Government of Manitoba reached an agreement respecting the transfer to Manitoba of the unalienated natural resources within the Province. The agreement was approved by the Parliament of Canada in the Manitoba Natural Resources Act, supra, and by the Legislature of Manitoba by the Manitoba Natural Resources Act, R.S.M. 1954, c. 180. The schedule to both statutes contains the terms of the agreement, in which s. 13 reads as follows:
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 might have a right of access.
This section of the agreement was dealt with by this Court in Prince and Myron v. The Queen'", which held that Indians in Manitoba hunting for food on all unoccupied Crown lands and on any other lands to which they 14 [1964] S.C.R. 642, 49 W.W.R. 306, 44 C.R. 266, [1965] 2 C.C.C. 129, 50 DL.R. (2d) 80.
[19641 S.C.R. 46 W.W.R. 41 C.R. 403, 3 C.C.C. 1. may have rights of access were not subject to any of the limitations which the Game and Fisheries Act of ManiwnE toba, R.S.M. 1954, c. 94, imposes upon the non-Indian residents of Manitoba. Section 72(1) of The Game and Fish- HaII J.
eries Act, R.S.M. 1954, c. 94, reads as follows:
72(1) Notwithstanding this Act, and in so far only as is necessary to implement The Manitoba Natural Resources Act, any Indian may hunt and take game for food for his own use at all seasons of the year on all unoccupied Crown lands and on any other lands to which the Indian may have the right of access.
The question which falls to be determined in this appeal is whether the terms of the agreement between the Government of Canada and the Government of Manitoba as ratified by Parliament and by the Legislature of Manitoba and confirmed at Westminster in the British North America Act 1930 take precedence over the provisions of the Migratory Birds Convention Act and the Regulations made thereunder. If full effect is to be given to s. 13 of the agreement in question, it must be held that the provisions of the Migratory Birds Convention Act and the Regulations made thereunder do not apply to Indians in Manitoba when engaged in hunting migratory birds for food in the areas set out in the section. On the other hand, if the provisions of the Migratory Birds Convention Act take precedence, the right of Indians in Manitoba to hunt game for food at all seasons of the year in accordance with said s. 13 is wiped out. Accordingly, the decision must be made as to which legislation is paramount.
Freedman J.A., in his dissenting judgment in the Court of Appeal, dealt with the problem as follows:
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, auklets, etc.-settles the matter. Obviously such rights are far smaller than the unrestricted right to hunt all game for food, which is provided by Sec. 13 of "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 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 1--_ terms of that statute; so no such exception would be expected in the regulations either.
WHITE The parallel argument on the other side appears to me to be far more THE cogent. The terms of Sec. contained in The Manitoba Natural Resources Act are comprehensive and permit 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 Sec. subject to the terms of the Migratory Birds Convention Act, the legislators did quite the opposite. They enshrined the agreement within the Canadian constitutional framework by having it confirmed at Westminster in the British North America Act, and declared it should have the force of law "notwithstanding anything in... any Act of the Parliament 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 Sec. 13) from that which it has in other parts of Canada. The decision of the Supreme Court of Canada in Reg. vs. Sikyea, (1964) S.C.R. 642, upheld the application of the Migratory Birds Convention Act to an Indian of the Northwest Territories notwithstanding hunting rights contained in treaties. The decision of that Court in The Queen vs. George, (1966) 55 D.L.R. (2d) 386, came to the same conclusion as regards an Indian in Ontario. In neither case, of course, did Sec. 13 of The Manitoba Natural Resources Act apply. If the application of Sec. 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.
I am in full agreement with Freedman J.A. and the fact that the conclusion arrived at by him gives the Indians of Manitoba, Saskatchewan and Alberta a latitude while hunting for food on unoccupied crown lands and on other lands to which Indians might have a right of access greater than that possessed by other Indians in Canada is not of itself a reason for putting a strained interpretation on said s. 13 or for failing to give effect to the very plain language in the British North America Act 1930. The lamentable history of Canada's dealings with Indians in disregard of treaties made with them as spelt out in the judgment of Johnson J.A. in Regina v. Sikyea' 0 and by McGillivray J.A. in Rex v. Wesley1 ought in justice to allow the Indians to get the benefit of an unambiguous law which for [1964] 2 C.C.C. 325 at 327 to 336, 43 C.R. 83, 46 W.W.R. 65, 43 D.L.R. (2d) 150.
[19321 58 C.C.C. 269 at 274 to 285, 2 W.W.R. 337, 26 Alta. L.R. 433. once appears to give them what the treaties and the Commissioners who were sent to negotiate those treaties WHrE promised.
I said at p. 646 of my reasons in Sikyea which were concurred in by the six other members of this Court who heard the appeal:
On the substantive question involved, I agree with the reasons for judgment and with the conclusions of Johnson JA. in the Court of Appeal, (1964) 2 C.C.C. 325, 43 C.R. 83, 46 W.W.R. 65. He has dealt with the important issues fully and correctly in their historical and legal settings, and there is nothing which I can usefully add to what he has written.
It should be noted that in Sikyea the British North America Act 1930 had no application because the offence there being dealt with had occurred in the Northwest Territories, an area wholly within the legislative jurisdiction of the Parliament of Canada. Parliament has the power to breach the Indian treaties if it so wills: Regina v. Sikyea, supra. That point is dealt with by Johnson J.A. at p. 330 as follows:
Discussing the nature of the rights which the Indians obtained under the treaties, Lord Watson, speaking for the Judicial Committee in A.-G. Can. v. A.-G. Ont., A.-G. Que. v. A.-G. Ont., (1897) A.C. 199 at p. 213, said:
"Their Lordships have had no difficulty in coming to the conclusion that, under the treaties, the Indians obtained no right to their annuities, whether original or augmented beyond a promise and agreement, which was nothing more than a personal obligation by its governor, as representing the old province, that the latter should pay the annuities as and when they became due..."
While this refers only to the annuities payable under the treaties, it is diflicult to see that the other covenants in the treaties, including the one we are here concerned with, can stand on any higher footing. It is always to be kept in mind that the Indians surrendered their rights in the territory in exchange for these promises. This "promise and agreement", like any other, can, of course, be breached, and there is no law of which I am aware that would prevent Parliament by legislation, properly within s. of the B.N.A. Act, from doing so.
However, parliament cannot legislate in contravention of the British North America Act and that is why the British North America Act 1930 is decisive in this case. A reading of Johnson J.A.'s historical review in Sikyea, particularly at pp. 335-6, where he said:
It is, I think, clear that the rights given to the Indians by their treaties as they apply to migratory birds have been taken away by this Act and its Regulations. How are we to explain this apparent breach of faith on the part of the Government, for I cannot think it can be described in any other terms? This cannot be described as a minor or insignificant curtailment of these treaty rights, for game birds have always DALS been a most plentiful, a most reliable and a readily obtainable food in large areas of Canada. I cannot believe that the Government of Canada WHITE realized that in implementing the Convention they were at the same time breaching the treaties that they had made with the Indians. It is much more likely that these obligations under the treaties were overlooked-a case of the left hand having forgotten what the right hand had done. The subsequent history of the Government's dealing with the Indians would seem to bear this out. When the treaty we are concerned with here was signed in 1921, only five years after the enactment of the Migratory Birds Convention Act, we find the Commissioners who negotiated the treaty reporting:
"The Indians seemed afraid, for one thing, that their liberty to hunt, trap and fish would be taken away or curtailed, but were assured by me that this would not be the case, and the Government will expect them to support themselves in their own way, and, in fact, that more twine for nets and more ammunition were given under the terms of this treaty than under any of the preceding ones; this went a long way to calm their fears. I also pointed out that any game laws made were to their advantage, and, whether they took treaty or not, they were subject to the laws of the Dominion."
and there is nothing in this report which would indicate that the Indians were told that their right to shoot migratory birds had already been taken away from them. I have referred to Art. 12 of the agreement between the Government of Canada and the Province of Alberta signed in 1930 by which that Province was required to assure to the Indians the right of "hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands". (The amendment to the B.N.A. Act (1930 (U.K.), c. 26) that confirmed this agreement, declared that it should "have the force of law notwithstanding anything in the British North America Act... or any Act of the Parliament of Canada...") It is of some importance that while the Indians in the Northwest Territories continued to shoot ducks at all seasons for food, it is only recently that any attempt has been made to enforce the Act.
confirms what I said in Sikyea and I am fortified in that view by the judgment of McGillivray J.A. in R. v. Wesley, particularly at pp. 283-4 where, in dealing with s. 12 of the Alberta agreement, identical in effect with s. 13 of the Manitoba agreement, he said:
In Canada the Indian treaties appear to have been judicially interpreted as being mere promises and agreements. See A.-G. Can. v. A.-G. Ont. (Indian Annuities case), (1897) A.C. 199, at p. 213.
Assuming as I do that our treaties with Indians are on no higher plane than other formal agreements yet this in no wise makes it less the duty and obligation of the Crown to carry out the promises contained in those treaties with the exactness which honour and good conscience dictate and it is not to be thought that the Crown has departed from those equitable principles which the Senate and the House of Commons declared in addressing Her Majesty in 1867, uniformly governed the British Crown in its dealings with the aborigines.
At the time of the making of this Indian Treaty it was of first class importance to Canada that the Indians who had become restless after the sway of the Hudson's Bay Co. had come to an end, should become 1-content and that such title or interest in land as they had should be peacefully surrendered to permit of settlement without hindrance of any kind. On the other hand it goes without saying that the Indians were greatly concerned with "their vocations of hunting" upon which they depended for their living.
In this connection it is of historical interest although of no assistance in the interpretation of the treaty, that Governor Laird who with Colonel Macleod negotiated this treaty, said to the Chiefs of the Indian tribes:- "I expect to listen to what you have to say today, but first, I would explain that it is your privilege to hunt all over the prairies, and that should you desire to sell any portion of your land, or any coal or timber from off your reserves, the Government will see that you receive just and fair prices, and that you can rely on all the Queen's promises being fulfilled."
And again he said:-"The reserve will be given to you without depriving you of the privilege to hunt over the plains until the land be taken up."
It is true that Government regulations in respect of hunting, are contemplated in the Treaty but considering that Treaty in its proper setting I do not think that any of the makers of it could by any stretch of the imagination be deemed to have contemplated a day when the Indians would be deprived of an unfettered right to hunt game of all kinds for food on unoccupied Crown land.
In the case A.-G. v. Metropolitan Electrio Supply Co., 74 L.J. Ch. 145, at p. 150, Farwell J., said:- "I think it is germane to the subject to consider what the Legislature had in view in making the provisions which I find in the Act of Parliament itself. As Lord Halsbury said in Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs, and Trade Marks, (1898) (A.C. 571) referring to Heydon's Case (1584), (3 Co. Rep. 7a) 'We are to see what was the law before the Act was passed, and what was the mischief or defect for which the law had not provided, what remedy Parliament appointed, and the reason of the remedy.' That is a very general way of stating it, but no doubt one is entitled to put one's self in the position in which the Legislature was at the time the Act was passed in order to see what was the state of knowledge as far as all the circumstances brought before the Legislature are concerned, for the purpose of seeing what it was the Legislature was aiming at."
If as Crown counsel contends, s. taken as a whole gives rise to apparent inconsistency and is capable of two meanings then I still have no hesitation in saying in the light of all the external circumstances relative to Indian rights in this Dominion to which I have alluded, that the law makers in 1930 were in the making of this proviso, aiming at assuring to the Indians covered by the section, an unrestricted right to hunt for food in those unsettled places where game may be found, described in s. 12.
It was argued that para. 13 of the agreement in question is limited in its application solely to provincial laws because of the presence of the clause "which the Province hereby assures to them", in the sentence under consideration. That clause inserted parenthetically between commas cannot derogate from the thrust of the principal clause which contains the specific declaration "that the said Indians shall have the right, of hunting, trapping and fishing game and fish for food at all seasons of the year". In my view it adds emphasis to the declaration by making manifest the application of the declaration to the Province as though the clause read "which the Province also hereby assures to them".
If all that s. 13 of the agreement was intended to achieve in 1930 was a declaration by the Province that Indians were to have the right to fish, hunt and trap for food at all seasons of the year, it was, according to that interpretation, an empty, futile and misleading gesture. Either the
Indians then had those rights or they did not have them for the Migratory Birds Convention Act had been on the statute books since 1917. The only interpretation that makes sense is the one that acknowledges that the right of hunting, trapping and fishing game and fish for food at all seasons of the year existed in 1930 regardless of the Migratory Birds Convention Act and the Federal Government wanted those rights to continue notwithstanding the transfer to the Provinces of Manitoba, Saskatchewan and Alberta of the unalienated natural resources withheld when the Provinces were formed. What logic could there have been in having the Provinces assure to Indians non-existing rights?
The Federal authority was already under treaty obligation contained in Treaties 5 and which read:
to preserve the Indians' right to hunt and fish for food at all seasons of the year, and it was merely making certain that the Provinces would accord the same rights when they got control of the unalienated Crown lands. The obligation of Canada to preserve the right to hunt and fish for food at all seasons was an historical one arising out of the rights of
Indians as original inhabitants of the territories from which Manitoba, Saskatchewan and Alberta were carved and arising out of the treaties above mentioned. The subwarrE ject of aboriginal rights as they apply to Indians of Western Canada and the effect of the treaties made with the Indians were dealt with by the Court of Appeal for British Columbia in Regina v. White and Bob'. This Court upheld that decision in an oral judgment" as follows:
Mr. Justice Cartwright delivered the following oral judgment: "Mr. Berger, Mr. Sanders and Mr. Christie. We do not find it necessary to hear you. We are all of the opinion that the majority in the Court of appeal were right in their conclusion that the document, Exhibit 8, was a 'treaty' within the meaning of that term as used in s. 87 of the Indian Act (R.S.C. 1952, c. 149). We therefore think that in the circumstances of the case, the operation of s. 25 of the Game Act (R.S.B.C. 1960, c. 160) was excluded by reason of the existence of that treaty." It follows that if Exhibit 8 in White and Bob which Know all men that we the Chiefs and people of the Sanitch Tribe who have signed our names and made our marks to this Deed, on the 6th day of February 1852 do consent to surrender entirely and forever, to James Douglas the Agent of the Hudsons Bay Company, in Vancouver Island that is to say for the Governor Deputy Governor and Committee of the same, the whole of the lands situate and lying between Mount Douglas and Cowitchen Head on the Canal de Arro and extending thence to the line running through the centre of Vancouver Island north and south.
The condition of, or understanding of this sale, is this, that our village sites and enclosed fields, are to be kept for our own use, for the use of our children, and for those who may follow after us, and the lands shall be properly surveyed hereafter; it is understood however, that the land itself with these small exceptions, becomes the entire property of the white people forewer; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly. We have received as payment-Forty one pounds thirteen shillings and four pence.-In token whereof we have signed our names, and made our marks at Fort Victoria, on the seventh day of February, One thousand eight hundred and fifty two.
(Emphasis added.)
was a treaty within s. 87 of the Indian Act, R.S.C. 1952, c. 149, so are Treaties 5 and 6 aforesaid.
Soon after the agreement in question was entered into, the Court of Appeal for Saskatchewan in Rex v. Smith 2 , (1964), 52 W.W.R. 193 at 210-250, 50 D.L.R. (2d) 613.
(1965), 52 D.L.R. (2d) 481.
[19351 2 W.W.R. 433, 64 C.C.C. 131.
dealt with the effect of s. 12 of the Saskatchewan agreement which is identical with s. 13 now under review and in that case Turgeon J.A. (later C.J.S.) said:
WH Although this case is of great interest and importance I do not think THE QUEEN it will be necessary in disposing of it to examine minutely the state of the law existing prior to recent date, nor the Indian treaty or treaties referred to in the argument. If these treaties, or the various Dominion or provincial statutes referred to have any present bearing on the case it is only in so far as they may throw some light upon the interpretation of certain words in the instrument which, in my opinion, now governs the relations of these Indians with the game laws of Saskatchewan, and to which I am about to refer.
The 24th enumeration of sec. 91 of the British North America Act, 1867, ch. 3, confers upon the parliament of Canada exclusive jurisdiction upon the subject of "Indians and Lands Reserved for the Indians," while, on the other hand, the provinces have power to make laws concerning the hunting, fishing, preservation, etc. of game in the province. As a result, controversies have arisen in the past as to the application of provincial game laws to Indians: Rex v. Rodgers (1923)
2 W.W.R. 353, 33 Man. R. 139, 40 C.C.C. 51.
But in the years 1929 and 1930 something occurred which, in my opinion, had the effect of recasting the jurisdiction of the province of Saskatchewan in respect to the operation of its game laws upon our Indian population. In December, 1929, an agreement was entered into between the Dominion and the province having for its primary object the transfer from the one to the other of the natural resources within the province. This transfer was accompanied by many terms, some of which had to do with matters pertaining to the Indians. Among these is par. 12 of the agreement, which reads as follows (L.R. 1929-30, p. 293):
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.
It is admitted in this case that the accused was hunting for food. This agreement between the Dominion and the province was made "subject to its being approved by the Parliament of Canada and the Legislature of the Province" and also to confirmation by the Parliament of the United Kingdom. Ratification by the Imperial Parliament was necessary in so far at least as the agreement purported to make any change in the constitutional powers of the Dominion or of the province. In a recent decision of this Court, Rex v. Zaslavsky, ante p. 34, the learned Chief Justice quoted from the remarks of Lord Watson in the course of the argument in C.P.R. v. Notre Dame de Bonsecours Parish (1899) A.C. 367, 68 L.J.P.C. 54. The statement quoted by the learned Chief Justice may fittingly be repeated here:
The Dominion cannot give jurisdiction or leave jurisdiction with the province. The provincial Parliament cannot give legislative jurisdiction to the Dominion Parliament. If they have it, either one or the other of them, they have it by virtue of the Act of 1867. I think we must get rid of the idea that either one or other can enlarge the DAIES jurisdiction of the other or surrender jurisdiction.
WarrE AD
Consequently no legislative jurisdiction can be taken from the Do- THE minion Parliament and bestowed upon a provincial Legislature, or vice versa, without the intervention of the parliament of the United Kingdom. The Imperial statute confirming the agreement is 1930, 20 & 21 Geo. V., ch. 26, sec. 1 of which enacts that the agreement shall have the force of law "notwithstanding anything in the British North America Act of 1867 or any Act amending the same," etc. It follows therefore that, whatever the situation may have been in earlier years the extent to which Indians are now exempted from the operation of the game laws of Saskatchewan is to be determined by an interpretation of par. supra, given force of law by this Imperial statute. This paragraph says that the Indians are to have the right to hunt, trap and fish for food in all seasons "on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access".
For the purposes of the present inquiry we can confine ourselves to Crown lands (excluding lands owned by individuals as to which some other question might arise) because this game preserve is Crown land. The question then is (1) is it unoccupied Crown land, or (2) is it occupied Crown land to which the Indians have a right of access? If it is either of these no offence was committed by the accused.
(Emphasis added.)
Counsel for the accused, in proposing a test for the meaning which must be given to the word "occupied" and "unoccupied" referred to the treaty made between the Crown and certain tribes of Indians near Carlton, on August 23, 1876, whereby, on the one hand, these Indians consented to the surrender of their title of whatsoever nature in an area of which this game preserve forms part and, on the other hand, the Crown undertook certain obligations towards them and assured them certain rights and privileges. As I have said, it is proper to consult this treaty in order to glean from it whatever may throw some light on the meaning to be given to the words in question. I would even say that we should endeavour, within the bounds of propriety, to give such meaning to these words as would establish the intention of the Crown and the Legislature to maintain the rights accorded to the Indians by the treaty. (Emphasis added.)
I have already dealt with the meaning of s. 13 of the Manitoba agreement. To me it is clear and unambiguous and by s. 1 of the British North America Act 1930 which 1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the British North America Act, 1867, or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid. has the force of law, notwithstanding "any Act of the Parliament of Canada". The Migratory Birds Convention Act is an Act of the Parliament of Canada. One would suppose that that should end the matter, but it is urged that s. 1 of the British North America Act 1930 does not necessarily refer to every provision of the agreement and, in particular, that s. 13 is outside the plain and unambiguous language of the Act in that Ottawa and Westminster could not conceivably have intended s. 13 to take prece- J. dence over the Migratory Birds Convention Act of 1917. One should, I think, be slow to accept the argument that the negotiators of the Manitoba agreement and Parliament at Ottawa were in 1929 and 1930 totally forgetful of the existence of the Migratory Birds Convention Act 1917. Rather is it not more logical that knowing of the solemnity with which the Indian treaties had been negotiated and how highly they were regarded by the Indians, neither the negotiators of the agreement nor the Government at Ottawa had the slightest intention of breaching those treaties.
If it had been intended that the Migratory Birds Convention Act should take precedence, it would have been a simple matter to have said so in the agreement or in the Manitoba Natural Resources Act. Much would have to be read into s. 13 of the agreement to make it subject to the Migratory Birds Convention Act. I am not prepared to add exclusions which Parliament and Westminster did not see fit to do.
It is argued that this is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. The rule does not, of course, come into operation if a statute is unambiguous for in that event its provisions must be followed even if they are contrary to the established rules of international law. The case of Inland Revenue Commissioners v. Collco Dealings Ltd. is a case in which this very argument was made. In that case the Court was being asked to read into a section of the Income Tax Act 1952 additional words which would enlarge the meaning of the section so as to include persons not included by the precise words of the enactment but which were included under an agreement between the British Government and the Republic of Ireland providing for exemption COUR SUPRtME DU CANADA from tax where the claimant was a resident in the Republic of Ireland and was not a resident in the United Kingdom.
THE
In dealing with the argument, Viscount Simonds said at pp. 18 and 19:
It has been urged that the general words of the subsection should be so construed as not to have the effect of imposing or appearing to impose the will of Parliament upon persons not within its jurisdiction. This argument, which had influenced the special commissioners, was not advanced before this House. A somewhat similar argument was, however, pressed upon your Lordships and was perhaps more strongly than any other relied on by the appellant company. It was to the effect that to apply section 4(2) to the appellant company would create a breach of the 1926 and following agreements, and would be inconsistent with the comity of nations and the established rules of international law: the subsection must, accordingly, be so construed as to avoid this result.
My Lords, the language that I have used is taken from a passage at p. 148 of the 10th edition of "Maxwell on the Interpretation of Statutes" which ends with the sentence: "But if the statute is unambiguous, its provisions must be followed even if they are contrary to international law." It would not, I think, be possible to state in clearer language and with less ambiguity the determination of the legislature to put an end in all and every case to a practice which was a gross misuse of a concession. What, after all, is involved in the argument of the appellant? It is nothing else than that, when Parliament said "under any enactment," it meant "any enactment except .. ." But it was not found easy to state precisely the terms of the exception. The best that I could get was "except an enactment which is part of a reciprocal arrangement with a sovereign foreign state." It is said that the plain words of the statute are to be disregarded and these words arbitrarily inserted in order to observe the comity of nations and the established rules of international law. I am not sure upon which of these high-sounding phrases the appellant company chiefly relies. But I would answer that neither comity nor rule of international law can be invoked to prevent a sovereign state from taking what steps it thinks fit to protect its own revenue laws from gross abuse, or to save its own citizens from unjust discrimination in favour of foreigners. To demand that the plain words of the statute should be disregarded in order to do that very thing is an extravagance to which this House will not, I hope, give ear.
I would paraphrase the latter part of this statement as follows in applying it to the Indians of Manitoba, Saskatchewan and Alberta by saying: But I would answer that neither comity nor rule of international law can be invoked to prevent a sovereign state (Canada) from taking what steps it thinks fit to protect its own aboriginal population (Indians) from being deprived of their ancient rights to hunt and to fish for food assured to them in Treaties 5 and 6 made with them.
It took those steps when it included s. 13 of the Manitoba agreement, confirmed by the Manitoba Natural Resources Act and petitioned Parliament at Westminster to enact s. 1 of the British North America Act 1930. If there is inconsistency or repugnancy between the Migratory Birds Convention Act and the Manitoba Natural Resources Act the later prevails over the earlier; British
Columbia Railway Co. v. Stewart and Summers v. Holborn District Board of WorkS . It is difficult, I think, to find language more forthright and less ambiguous than s. 1 of the British North America Act 1930. To repeat, it
I would, accordingly, allow the appeal and quash the conviction. The appellant is entitled to his costs in this
Court and in the Courts below.
J.:-The facts are summarized in the reasons of my brother Judson with whom I am in agreement.
I wish to add that, in my view, this is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. It is a rule that is not often applied, because if a statute is unambiguous, its provisions must be followed even if they are contrary to international law, as was said recently in Inland Revenue
Commissioners v. Collco Dealings Ltd.", where all relevant authorities are reviewed. In that case, the House of
Lords came to the conclusion that the intent of Parliament was clear and unmistakable and, therefore, the plain words of a statute could not be disregarded in order to observe the comity of nations and the established rules of international law. However, the principle of construction was recognized as applicable in a proper case.
Here we must not be misled by the clear and unambiguous provision of section 1 of the British North America
Act 1930 into believing that, because it is there said that the agreement shall have the force of law notwithstanding any act of the Parliament of Canada, every provision of the agreement was intended to override all federal legislation.
The question to be decided is whether in par. of the agreement, the words "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" contemplate laws of Canada as well as laws of Manitoba. The language certainly is not that which one would normally use in referring to both classes of laws. It is rather the language one would be expected to use in a provision intended to subject the Indians to provincial game laws. This is further borne out by the fact that the proviso on which this appeal is based is in a form of an assurance by the province only. Can it be said that where Canada stipulates in the agreement: "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..." the intention was expressed in clear language and without ambiguity to amend the Migratory Birds Convention Act contrary to Canada's international obligations? In my view, the least that can be said is that the intention to derogate from the statute implementing the treaty is not clearly expressed. It is perfectly possible without doing violence to the language used to construe the provision under consideration as applicable solely to provincial laws and thus to avoid any conflict. It must also be considered that an agreement is not to be construed as applying to anything beyond its stated scope unless the intention to do so is unmistakable. Here the purpose of the agreement is stated in its preamble to be that the Province be placed in a position of equality with the other provinces with respect to the administration and control of its natural resources. It is quite consistent with this declared object to provide that provincial laws respecting the use of some resources, namely fish and game, shall apply to Indians subject to a restriction the effect of which is to carry out Canada's treaty obligations towards the Indians in that respect. On the other hand, it would not only be foreign to this object but even inconsistent with it, to provide for an implied modification of the Migratory Birds Convention Act. The result would be to

Cases cited

  • 56 W.W.R. 234 56 W.W.R. 234
  • Sikyea v. The Queen scr-1964-642 scc 1964-10-06
  • 2 C.C.C. 129 2 C.C.C. 129
  • the Manitoba Natural Resources Act the Manitoba Natural Resources Act, supra
  • 55 D.L.R. (2d) 386 55 D.L.R. (2d) 386
  • 2 C.C.C. 325 2 C.C.C. 325 327
  • Regina v. Sikyea Regina v. Sikyea, supra
  • A.C. 199 A.C. 199 p 213
  • 52 W.W.R. 193 52 W.W.R. 193 210-250
  • 52 D.L.R. (2d) 481 52 D.L.R. (2d) 481
  • C.P.R. v. Notre Dame de Bonsecours Parish A.C. 367

Statutes and regulations cited