Failure to Consider Mikisew Cree First Nation v Canada Trips Up Ontario Court of Appeal
Dennis Jacob and two other members of the Aroland First Nation were driving along a road used by Kimberly Clark for its forestry operations. It was nighttime when they shot at what they thought was a moose. It turned out to be a decoy and provincial officers charged them for night hunting and for discharging a firearm across a road. They were convicted of both charges.
The lawyers for Jacob argued that the Crown was obligated to lead evidence that the land had been “taken up” through some legal process. The Ontario Court of Appeal (“ONCA”) (per O’Connor A.C.J.O.; MacPherson and Juriansz JJ.A., concurring) upheld the convictions. First, they found that the prohibition on hunting on “a right of way for public vehicular traffic” in section 17 of the Fish and Wildlife Conservation Act, 1997, SO 1997, c 41, did not require any legal grant authorizing the use by the public. It was the actual use of the land as a highway that determined whether or not there was a prohibition. This, the Court found, related to safety concerns.
Second, the Court held that the lands were taken up because there was “visible incompatible use.” The ONCA relied on R v Badger,  1 SCR 771 [Badger]. In that case, the Supreme Court of Canada (“SCC”) decided that where there was “visible incompatible use” such as houses or crops, there would be no treaty hunting right because the land was “taken up”. However, hunting on private land would be permitted in other cases. The ONCA cited Badger as authority for the proposition that the test for “taking up lands” was whether or not there was “visible incompatible use.”
I believe that this formulation is too simplistic. In Badger, the hunting occurred on private property where there was already a Crown patent. Therefore, legal status of the land was not in dispute. In R v Jacob, 2009 ONCA 73 [Jacob], the Crown failed to lead evidence to the status of the land. As well, Badger was decided before Mikisew Cree First Nation v Canada (Minister of Canadian Heritage),  3 SCR 388 [Mikisew Cree]. The latter case placed obligations on the Crown in taking up lands: obligations that were not in issue in Badger.
Safety-related charges can apply on any lands whether taken up or not because courts have held that the treaty right to hunt does not encompass the right to hunt safely. In other words, the Treaty does not protect the unsafe hunting. So, in this case, it may be that the accused were hunting unsafely and that therefore some charge related to that fact would be appropriate. It would be the responsibility of the Crown to lead evidence that the hunting in this particular case was unsafe.
However, the fact that there may be a safety issue does not determine whether the lands have been “taken up” under the Treaty. “Taking up” lands means that there is less land to exercise treaty hunting, fishing and trapping rights. As more and more land is “taken up,” there is less and less land available for First Nations. In recognition of this fact, courts have begun to look at the fairness of the process for taking up lands. Lower court decisions which began questioning the appropriateness of unbridled “taking up” were crystallized in the SCC’s decision in Mikisew Cree in 2005.
This case held that the Treaty provision did not provide the province the ability to take up land to the point that there was no “meaningful right left to hunt”. In addition, the Court held that the honour of the Crown imposed a procedural requirement to consult before lands were “taken up.” These two conditions import a responsibility on the Crown to manage the process of “taking up lands.” It is a continuation of the requirement in the Royal Proclamation of 1763 that First Nations could only give up their land to the Crown: alienation to private individuals is prohibited.
Let us say that a group of people from Toronto set up a camp on traditional hunting territory of the Aroland First Nation. These individuals did not have any authority to set up the camp from the First Nation or the provincial government. A First Nation individual who hunted within view of the camp might be guilty of unsafe hunting. However, the presence of these squatters from Toronto could not result in the land being “taken up” within the meaning of the treaty. Private individuals do not have the authority to diminish treaty rights. To allow them to squat on Crown land and thereby diminish the right to hunt would fly in the face of the Royal Proclamation and over two centuries of Crown – Aboriginal relations.
Unfortunately, the result from the decision of the Court of Appeal in Jacob would be that any land that was de facto occupied would be “taken up.” There would be no obligation on the Crown to say whether the land was lawfully assigned in the first instance, nor any obligation to ensure that the land continued to be legally assigned.
There may or may not be appropriate authority for the construction and use of the Kimberly Clark logging road. There may or may not be a factual basis for a conviction on a safety related charge due to the de facto use of the road by vehicles. However, it seems pretty clear that the Court should have required the Crown to lead evidence that Kimberly Clark had been assigned the road lawfully, before finding that the land had been lawfully “taken up.”