The Alberta Court of Queen’s Bench upheld the convictions of two Aboriginal men charged under the provincial Wildlife Act for hunting in a wildlife sanctuary. The Court rejected the appellants’ argument that the wildlife sanctuary was “unoccupied Crown land” that had not been “taken up” for a visibly incompatible use, thereby allowing them to exercise any treaty rights to hunt. The Court also rejected the appellants’ argument that Aboriginal hunters were implicitly permitted to hunt in the sanctuary. There was no basis for interfering with the trial judge’s conclusion that the appellants had failed to demonstrate a prima facie infringement of the treaty right to hunt.

In August 2009, the appellants Gauchier and Legrande each shot and hit a moose decoy in a wildlife sanctuary that had been deployed by Alberta Fish and Wildlife Officers. They were charged under section 39 of the Wildlife Act. Mr. Legrande is a member of the Whitefish Lake First Nation and Mr. Gauchier asserted that he was a member of a Métis settlement. They each relied upon a treaty right to hunt. In addition, they defended the charges on the basis that they mistakenly believed that they could hunt in the wildlife sanctuary.  In 2011, the Alberta Provincial Court convicted both men and fined them each $200.

The Court of Queen’s Bench agreed with the Provincial Court judge that the appellants’ erroneous belief that they could hunt in the wildlife sanctuary was a “mistake of law”. Even if it was a mistake of fact, the appellants had failed to take steps to test their erroneous belief. A person who engages in prohibited conduct because of not knowing the factual limits of the prohibition has made a mistake of law and has no defence. The appellants’ ignorance of the wildlife sanctuary legislation was a mistake of law.

The wildlife sanctuary, and the associated hunting prohibition, had existed for 20 years. The appellants argued that the lands were “unoccupied Crown lands” for the purposes of Treaty 8 and were not “visibly incompatible” to the exercise of Aboriginal hunting rights. The Court reviewed the law relating to the Natural Resources Transfer Agreement and the “taking up” provision. Following authorities such as R. v. Smith, [1935] 3 D.L.R. 703 (Sask. C.A.) and R. v. Badger (1996), the Court held that the creation of a wildlife sanctuary had the effect of “taking up” the lands. The Court explicitly disagreed with two Yukon cases stating that the designation of a wildlife sanctuary does not “occupy” the land. Allowing a right of access to hunt would be incompatible with the fundamental purpose of establishing the game preserve. It was also incorrect and illogical to apply the “visibly incompatible” test to Crown land used for wildlife conservation: R. v. Catarat, 2001 SKCA 50.

Section 39 of the Wildlife Act stated that a person shall not hunt in a wildlife sanctuary unless that hunting is “specifically authorized”. The appellants relied upon dicta of Dickson J. in R. v. Moosehunter, [1981] 1 S.C.R. 282 to argue that once any hunting is permitted, then Aboriginal persons have a right of access for hunting. The Court agreed with the Crown that such an argument was illogical. Alberta had not issued any licences to permit hunting in the wildlife sanctuary. If the unexercised authority to permit hunting mandates that Aboriginal hunting is permitted, then no legislative restriction is possible for Aboriginal hunting. Thomas J. concluded that such an “absurd result … warrants no further discussion”.

The remaining issue concerned whether the creation of the wildlife sanctuary violated the appellants’ right to hunt. At trial, the appellants relied upon R. v. Breaker, 2000 ABPC 179, which involved the issue of consultation, but the Provincial Court judge concluded that Breaker had been overruled by subsequent cases like R. v. Lefthand, 2007 ABCA 206. At this appeal, Thomas J. agreed that Lefthand was binding.

The first step of Sparrow involves whether there was a prima facie infringement of the Aboriginal right. The trial judge held that the appellants had not proven that their treaty rights were infringed by the hunting prohibition for the wildlife sanctuary. It was reasonable for conservation purposes, there was no hardship to the appellants, and it did not deny the appellants their preferred means of exercising the right. Thomas J. held that these were findings of fact, and the trial judge’s conclusions were therefore entitled to deference. They did not amount to a palpable and overriding error.

The appeals were dismissed with costs.

Decisions available here.


Scott Kerwin


Aboriginal Law