About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2 Const. F. 1 (1990-1991)

handle is hein.journals/consfo2 and id is 1 raw text is: :onstitutional Studies Volume 2, Number 1 Edmonton, Alberta Autumn 1990 Aboriginal and Treaty Rights RECONCILING POWERS AND DUTIES: A Comment on HORSEMAN, SIOUI and SPARROW Catherine Bell The 1984 ruling of the Supreme Court of Canada in Guetin v. R. signalled a new era of judicial opinion on the question of aboriginal and treaty rights.1 Traditionally, Canadian courts have upheld the ability of the Crown to exercise its jurisdiction over native people 'to their detriment.2 Guerin began the movement away from this tradition by creating a new dichotomy in judicial premises: the absolute power of the federal government to unilaterally extinguish aboriginal and treaty rights and the duty of the Crown to act as a fiduciary in its dealings with Canada's first peoples. The tension in judicial reasoning created by this dichotomy and its impact on the legal rights of aboriginal peoples is illustrated by a comparison of the majority and dissenting opinions in R. v. Horseman.3 However, decisions rendered within one month of Horseman suggest that the direction of the Supreme Court is to resolve the tension by stressing concepts of duty and honour and that the emphasis on federal power in Horseman is an anomaly.4 The appellant in Horseman was a Treaty 8 Indian who killed a grizzly bear in self-defense. A year later, in need of money, he obtained a grizzly bear hunting license and sold the hide. He was subsequently charged with trafficking in wildlife without a license contrary to section 42 of the Alberta Wildlife Act.5 Two broad issues were before the Supreme Court. Was the Wildlife Act constitutionally applicable to Treaty 8 Indians? Were hunting rights granted by Treaty 8 extinguished, reduced or modified by paragraph 12 of the Alberta Natural Resources Transfer Agreement (N.R.T.A.)?6 In a four to three split, the Supreme Court answered both questions in the affirmative. Central to the resolution of these issues was the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.7 In applying this principle, Mr. Justice Cory accepted the legal power of the Crown to breach its treaty obligations and read a clear intent to limit Indian rights into paragraph 12.8 Speaking for the majority, he held that provincial laws of general application are applicable to Indians pursuant to section 88 of the Indian Act so long as they do not conflict with treaty rights.9 Treaty 8 includes the right to hunt for commercial purposes, but this right was abrogated by paragraph 12 of the N.R.T.A.. The Agreement had the effect (Continued on page 2) Centre ~5 .17 ...... 14 ...... 17 d' tudes CONTENTS Aboriginal Treaty Rights ... Future of Legal Theory .... Professional Advertising .... Labour Strikes Out ....... The Prostitution Reference . The Right to Silence ......

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most