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)

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CONTENTS
Aboriginal Treaty Rights ...
Future of Legal Theory ....
Professional Advertising ....
Labour Strikes Out .......
The Prostitution Reference .
The Right to Silence ......

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