|R v Badger|
|Hearing: May 1 and 2, 1995 |
Judgment: April 3, 1996
|Full case name||Wayne Clarence Badger v. Her Majesty the Queen;|
Leroy Steven Kiyawasew v. Her Majesty the Queen;
Ernest Clarence Ominayak v. Her Majesty the Queen
|Citations|| 1 S.C.R. 771|
|Prior history||Judgment for the Crown in the Court of Appeal for Alberta.|
|Ruling||Badger and Kiyawasew: appeal dismissed.|
Ominayak: appeal allowed.
|When interpreting a treaty, the following principles apply:
|Chief Justice: Antonio Lamer|
Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
|Majority||Cory J., joined by La Forest, L'Heureux‑Dubé, Gonthier and Iacobucci JJ.|
|Concurrence||Sopinka J., joined by Lamer C.J.|
|McLachlin and Major JJ. took no part in the consideration or decision of the case.|
R v Badger,  1 S.C.R. 771 is a leading Supreme Court of Canada decision on the scope of aboriginal treaty rights. The Court set out a number of principles regarding the interpretation of treaties between the Crown and aboriginal peoples in Canada.
Wayne Badger, Leroy Kiyawasew, and Ernest Ominayak were Cree and status Indians under the Treaty No. 8. They were each caught hunting for food on private land. Badger was caught near a farm house, Kiyawasew was caught in a farmer's field, while Ominayak was caught in a field of Muskeg. They were charged under the Wildlife Act. At trial the three accused argued that they were entitled to hunt as part of their aboriginal treaty rights. The Crown argued that the Natural Resources Transfer Agreement of 1930 had extinguished the rights granted by Treaty No. 8. The accused were convicted and the convictions were upheld on appeal.
The issues before the Supreme Court were:
Justice Cory, writing for the majority, held that the appeals of Badger and Kiyawasew should be dismissed but Ominayak's appeal should be allowed and a new trial should be directed.
The Treaty, Cory found, granted the right to "pursue their usual vocations of hunting, trapping, and fishing", which was limited by geography and the right of the government to conserve Wildlife.
Cory gave several principles in interpreting treaties:
Cory then turned to the issue of the NRTA. He found that it extinguished the right to hunt commercially but not the right to hunt for food.
When interpreting any treaties, they must be given their natural meaning as understood by the Indians at the time that they were signed. The limitation of the hunting treaty should be based on visible, incompatible land use. On this basis, the appeals for Badger and Kiyawasew must be dismissed as they were hunting where it was visibly incompatible with the land use.
Cory considered whether the Wildlife Act, which required hunting licenses, violated their aboriginal right to hunt. He found that it did violate their rights and could not be justified under the Sparrow test.