IN THE SUPREME COURT OF CANADA (Appeal from the Court of Appeal for the Province of Saskatchewan) AND: BETWEEN: HER MAJESTY THE QUEEN, APPELLANT

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1 COURT FILE NO. 261 IN THE SUPREME COURT OF CANADA (Appeal from the Court of Appeal for the Province of Saskatchewan) BETWEEN: HER MAJESTY THE QUEEN, APPELLANT AND: JOHN SUNDOWN, RESPONDENT RESPONDENT'S FACTUM John D. Whyte Deputy Attorney General Sh Floor, 1874 Scarth Street Regina, Saskatchewan, S4P 3V7 Solicitors for the Applicant, Attorney General for Saskatchewan P. Mitch McAdam Telephone: (306) Facsimile: (306) Woloshyn & Company 200 Scotiabank Building "6 Avenue South Saskatoon, Saskatchewan S7K 1K6 Solicitors for the Respondent James D. Jodouin Telephone: (306) Facsimile: (306) Gowling, Strathy & Henderson Barristers and Solicitors Suite 2600, 160 Elgin Street Ottawa, Ontario, KIN 8S3 Ottawa Agents for the Attorney General for Saskatchewan Telephone: (613) Facsimile: (613) Nelligan Power Barristers and Solicitors Suite 1900, 66 Slater Ottawa, Ontario KIP 5H1 Ottawa Agents for the Respondent Telephone: (613) Facsimile: (613)

2 TABLE OF CONTENTS PART I: PART 11: PART 111: A. B. STATEMENT OF FACTS POINTS IN ISSUE ARGUMENT INTRODUCTION TREATY RIGHT VERSUS PROVINCIAL LEGISLATION 1. Infringement of the Treaty Right to Hunt (a) Is building a hunting shelter part of the Treaty right to hunt? (i) (ii) (iii) (iv) (v) (vi) Relevant Provisions Rules of Treaty Interpretation Test to be Applied Application of the Test to the Facts of this Case Similar Cases Response to Appellant's Arguments on Application of the Does Provincial Legislation Infringe Upon this Right? 2. Effect of Conflict Between Treaty & Provincial Legislation (a) Provisions that might make Provincial Legislation Applicable (b) No Evidence of Incompatible Usage C. D. CONSTITUTIONAL ARGUMENT 1. Prima Facie Infringement 2. Justification SUMMARY PART IV: PART V: NATURE OF ORDER REQUESTED TABLE OF AUTHORITIES APPENDIX A: ORDER OF LAMER J. DATED 25 MAY 1998 APPENDIX B: STATUTORY AND CONSTITUTIONAL PROVISIONS

3 RESPONDENT'S FACTUM 10 PART I: STATEMENT OF FACTS 1. The Respondent, a treaty Indian, is a member of the Joseph Bighead First Nation, and maintains a permanent residence on the Joseph Bighead Reserve in Saskatchewan. The reserve lies on the Southern boundary of the Meadow Lake Provincial Park (the "Park"), which Park runs approximately seventy miles in an East-West direction, and varies in width from five to twenty miles in a North-South direction. The Joseph Bighead First Nation adhered to Treaty No. 6 in The Park is not "virgin forest". Within the Park's boundaries are numerous lakes (one of which is Mistohay Lake), several roads (including Provincial Highway #224), gas wells, pipeline clearings, picnic areas, boat launches, toilet facilities, landfill sites, garbage bins, fish filleting stations, picnic and campground areas, a sewage lagoon, lakeside fuel pumps, fences, fenced-off pasture land, seismic cutlines, Department of Natural Resources vehicle and equipment compounds (2). gas stations (3), a commercial lodge facility offering accommodations, grocery sales and boat rentals, and 200 to 300 private cabins. Cross-examination of Randy Nygren, Appellant's Record, pp The reserve is located approximately 100 kilometres from Mistohay Lake if traveled by highway. Members of the Joseph Bighead First Nation have hunted, trapped and fished for food on the lands comprising part of the Park for as long as the elders of the Band could recall. The Respondent engages in the traditional activities of his Band of hunting, fishing and trapping, as did hi father before him. Traditionally, this method of hunting involved traveling by horsc and pole; then by horse and wagon; and then over time by motor vehicle (once available) to Mistohay Lake, where hunting was done for extended periods as an "expedition". Examination-in-chief of Philip Kahpeepatow, Appellant's Record, pp. 129 and 137 Examination-in-chief of John Sundown, Appellant's Record, pp

4 4. It was traditional on such hunting expeditions for Band members to erect shelters at their hunting sites, which originally took the form of log lean-to's, covered with moss; these shelters evolved to tents and log cabins over time. The cabins were used as shelter, as a place to dry and store the fish and game and to process the food for later consumption on the reserve, and as a camp where food was prepared for consumption by members of the hunting party. The Respondent denies that all "the Wood Cree were a nomadic people" (Appellant's Facturn, paragraph 6, line 18). To the contrary, the evidence indicates that the members of the Joseph Bighead First Nation lived in specific locations, although they traveled to hunt, fish and trap. 10 Examination-in-chief of Philip Kahpeepatow, Appellant's Record, pp. 129 and Over the years, the Respondent and his family, while hunting for food in the Park, stayed at an older log cabin which had been built and abandoned by a thud party. This cabin had fallen into disrepair after years of use, and the Respondent decided to replace it. Accordingly, he, with the assistance of some others, cut a number of trees in the Park and used the logs to construct a one-storey, one-room cabin measuring approximately 30 feet by 40 feet. The cabin is located in the same vicinity as the old cabin, although not located in the exact same spot - it is located approximately 50 feet from the shore of Mistohay Lake, and is within 20 the Band's trapping block which was established between 1940 and The cabin is used by the Respondent and his 9 brothers while hunting and fishing for food, as well as for trapping purposes. Such activities were traditionally and are presently done on an expedition basis - over a period of days and weeks - as opposed to single day trips. According to the evidence, the Respondent uses the cabin approximately once per week to fish, approximately once per month to hunt, and about every day to trap during the trapping season. While fishing, the Respondent usually stays at the shelter 4 nights at a time; while hunting, the stay is usually 4 nights to a week in duration. On occasion, the Respondent has stayed for up to two weeks. Furthermore, the Respondent testified that he understands the Treaty to include 30 the right to build shelter and cut trees to build shelter. Examination-in-chief of John Sundown, Appellant's Record, pp and p. 93.

5 7. Building and utilizing a shelter during such expeditions was traditional to the accused and his forbears. The shelter was used as a camp and jumping off point forhunting, fishing and trapping. In addition, the food acquired is processed at the cabin: fish and game are dried and smoked, a process that takes 2 to 4 days. When trapping, furs are skinned and stretched in the cabin as well. Examination-in-chief of John Sundown, Appellant's Record, pp Other cabins have been built by other Band members in the Park, for which no permit 10 or consent has been obtained. Examination-inchief of John Sundown, Appellant's Record, pp ; Examination-in-chief of Charlie Sandfly, Appellant's Record, pp The Respondent was charged with two violations of The Park Regulations, 1991: constructing a permanent dwelling on park land without the disposition or written consent of the Minister, and taking, damaging or destroying trees on park land without the prior written consent of the Minister The Respondent was convicted of both charges in Provincial Court. On appeal to the Summary Conviction Appeal Court, the conviction for constructing a dwelling without a permit was set aside, while the conviction for cutting down trees was affirmed (on the judge's mistaken belief that some of the trees felled had not been used for the cabin). On further appeal to the Court of Appeal for Saskatchewan, acquittals were entered on both charges. PART 11: POINTS IN ISSUE 11. The Respondent agrees that the narrow issue that is raised by the facts of this case is stated by the Appellant at paragraph 8 of its Factum, namely: Do the constitutionally protected hunting rights of the Respondent under Treaty No. 6 and paragraph 12 of the Natural Resources Transfer Agreement include the right to cut down trees and to construct a permanent structure like a log cabin in a Provincial

6 Park without the authority of Parks Officials as required by The Parks Regulations, 1991? 12. It is the Respondent's response to this issue that he has a Treaty right to construct suc a shelter, and cut trees for that purpose, as a reasonable incident to his Treaty right to hunt an fish, as set out in Treaty 6 and as modified by the Natural Resources Transfer Agreemen! Notice that the Respondent would be raising a constitutional question has been given, and ths Chief Justice, by Order dated 25 May 1998, has stated a constitutional question (see Appendi: "A"). 13. The Appellant argues that if the Respondent's Treaty rights are found by this Court tc include the right to cut trees for and construct a shelter, three subsidiary issues will arise. Th, Appellant sets out these issues at paragraph 10 of its Factum as follows: (a) Does requiring the Respondent to obtain a disposition or ministerial consent under The Parks Regulations, I991 prior to cutting down trees and building a cabin in a Provincial Park constitute a prima facie infringement of his right to hunt? (b) (c) If a prima facie infringement exists, should the matter be remitted to the Provincial Court for a new trial to deal with the question of justification given that the original trial was held prior to the release of this Court's decision in Badger and no evidence was adduced with respect to justification? IS the orderly development of Provincial Parks a sufficiently "compelling and substantial" objective to warrant overriding the Respondent's right to hunt in the Park in the circumstances of this case? 14. The Respondent's position in respect of those issues is as follows: (a) (b) Requiring the Respondent to obtain a disposition or ministerial consent prior to exercising an activity directly related to his right to hunt and fish Is a prima facie infringement of the Respondent's right to hunt and fish; If a prima facie infringement exists, the matter should not be remitted to Provincial Court to deal with the question of justification, for as in R. v. C&k, [I S.C.R. 139, the Crown has chosen not to seek to adduce n c

7 (c) The "orderly development of Provincial Parks" is neither a stated objective of the legislation or regulations, nor a sufficiently compelling and substantial objective to warrant overriding a constitutionally protected right to hunt, fish and trap. PART 111: ARGUMENT 10 A. INTRODUCTION 15. At the outset, there are two general points the Respondent wishes to make by way of background to his argument as a whole. 16. First, the reason given by the Appellant's primary witness, Randy Nygren, in this case for the laying of charges, and the primary concern raised by the Appellant, is stated as the Respondent not obtaining a permit in advance of building the cabin. In the cross-examination of the Appellant's main witness, Conservation Officer Randy Nygren, the testimony was as follows: Q: Okay. Now, as I understand the concern here, Mr. Nygren, some cabins are allowed to be built in the park, it's just that you need a permit first, right? A: If a cabin is to be built, yes, you require a permit or a lease. Cross-examination of Randy Nygren, Appellant's Record, Page While this was the Appellant's stated concern, it belies the true facts, for on the 30 evidence of Mr. Nygren, a permit for the cabin was not available for the location where the Respondent constructed his cabin. Nor were permits to cut trees available for purposes of building a cabin. Examination-inchief of Randy Nygren, Appellant's Record, Page 25-26; Cross-examination of Randy Nygren, Appellant's Record, Page 62; Re-examination of Randy Nygren, Appellant's Record, Page In short, the evidence is clear that even had permits been sought, they would not have been granted.

8 19. Second, the Appellant has described the issue at stake in this appeal as whether the Respondent's Treaty rights include inter alia the right "to construct a permanent structure like a log cabin" in a Provincial Park without disposition. However, it is respectfully submitted that there is a much broader issue at stake, and that the Court's decision will not simply have an effect on "permanent structures like log cabins", but will affect any structures. 20. The issue is not simply whether the right to hunt includes a log cabin, but whether it includes any form of occupancy or temporary dwelling whatsoever. This arises from the fact that the section under which the Respondent was charged does more than prohibit the 10 construction of log cabins. Section 41(1) provides that one shall not "occupy" park land without disposition, and section 41(2)(j), under which the Respondent was charged, mandates inter alia that one shall not "construct or occupy a temporary or permanent dwelling on park land" [emphasis added]. The Respondent was prohibited by the legislation from constructing or occupying any shelter in the park, even if it was a temporary dwelling. The fact of "permanence" is, it is submitted, under this legislation irrelevant. 21. In other words, the fact that this case involves a "permanent structure like a log cabin" is irrelevant; the issue is whether any hunting shelter forms an adjunct to the Treaty right to hunt. Whether the Respondent constructed a lean-to with logs and moss or occupied a tent, or 20 built a cabin, (as his forefathers have done for generations previously) leads to the same result: an alleged violation of section 41(2)(j). As such, the effect of this decision depends not on what the structure was made of, but the fact that there was a structure or occupancy at all. B. TREATY RIGHT VERSUS PROVINCIAL LEGISLATION 1. Infringement of the Treatv Rieht to Hunt 22. The first question in the analysis is whether the impugned regulations violate the Treaty right to hunt, as modified by section 12 of the Natural Resources Transfer Agreement. The two specific sub-issues to this question are as follows: (i) Is building a log shelter, on the facts of this case, part of the Respondent's Treaty right to hunt?

9 (ii) Do the Provincial Regulations prohibiting the same constitute an infringement of that right? 23. It is submitted that it is the first sub-issue above that is the main issue for determination on this appeal. (a) (i) Is buildine a hunting shelter oaa of the Treatv rieht to hunt? Relevant Provisions 24. The relevant portion of Treaty No. 6 (to which the Respondent's Band adhered) is set out in Appendix "B". and repeated here for convenience: Her Majesty further agrees with her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by her Government of her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by her said Government of the Dominion of Canada, or by any of the subjects thereof, duly authorized therefor, by the said Government. 25. Paragraph 12 of the Natural Resources Transfer Agreement is also set out in Appendix "B", and reads as follows: 12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof.. ~rovided.. however. that the said Indians shall have the right, which the province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access. 26. Finally, section 88 of the Indian Act reads as follows: 88. Subject to the tern of any treaty and any other Act of Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are

10 inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under the Act. (ii) Rules of Treatv Intermetation 27. It is submitted that Canadian Courts have developed guidelines to be applied in interpreting the Treaties made with Indians. In Nowegijick v. The Queen, [I S.C.R this Court stated as follows: It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.... In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties "must... be construed, not according to the technical meeting of [their] words... but in the sense in which they would naturally be understood by the Indians". [at In R. v. Sioui. [I S.C.R. 1025, this Court stated as follows: The decision of the Ontario Court of Appeal in R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 277, also provides valuable assistance by listing a series of factors which are relevant to analysis of the historical background.... In particular, they assist in determining the intent of the parties to enter into a treaty. Among these factors are:...5. the subsequent conduct of the parties.... [at In Claxron v. Saanichton Marina Ltd., [I C.N.L.R. 46 (B.C.C.A.), the British Columbia Court of Appeal stated as follows, at page 50: In approaching the interpretation of Indian treaties the courts in Canada have developed certain principles which have been enunciated as follows: a. The treaty should be given a fair, large and liberal construction in favour of the Indians; b. Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians; c. As the honour of the Crown is always involved, no appearance of "sharp dealing" should be sanctioned; d. Any ambiguity in wording should be interpreted as against the drapers and should nor be interpreted to the prejudice of the Indians if another construction is reasonably possible;

11 e. Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.... [emphasis added] 30. It is submitted that, if the above principles are applied, one must necessarily conclude, on the evidence before the Court, that the Treaty right to hunt, fish and trap includes the building and utilization of shelter reasonably incidental to that right, (iii) Test to be Amlied 31. There is no dispute between the parties as to the proper test to be utilized to determine whether any particular activity falls within the right to hunt as guaranteed by Treaty. That test 10 was set out in R. v. Simon, [I S.C.R. 387, where this Court held, through Dickson C.J., as follows: It should be clarified at this point that the right to hunt to be effective must embody those activities reasonably incidental to the act of hunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds. In this case, the appellant was not charged with hunting in a manner contrary to public safety in violation of the Lands and Forests Act but with illegal possession of a rifle and ammunition upon a road passing through or by a forest, wood or resort of moose or deer contrary to s. 150(1) of the same Act. The appellant was simply travelling in his truck along a road with a gun and some ammunition. He maintained that he was going to hunt in the vicinity. In my opinion, it is implicit in the right granted under article 4 of the Treaty of 1752 that the appellant has the right to possess a gun and ammunition in a safe manner in order to be able to exercise the right to hunt. Accordingly, I conclude that the appellant was exercising his right to hunt under the Treaty. [at 403; emphasis added] At paragraph 32 of the Appellant's Factum the Appellant suggests that "at least one of its [incidental] accepted meanings clearly supports" the Appellant's position. It is submitted, however, that the common meaning of the word "incidental" means, in summary, "related to". Concise Oxford Dictionary of Current English - 8' Ed. - "a having a minor role in relation to a more important thing, event, etc. b not essential.... liable to happen.... following as a subordinate event. " [emphasis added]

12 Collins English Dictionary - "happening in connection with or resulting from something more important; found in connection (with); related (to); Black's Law Dictionary, 5" Ed. - "Depending upon or appeflaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose. " [emphasis added] 33. Furthermore, this Court is not being asked to decide whether any Indian can build any structure in any park. The question is whether, on the facts led at trial, this Indian could build this structure in this particular park. 34. Putting it another way, activities which for one Indian may be reasonably incidental to the act of hunting may, for another Indian, be wholly unrelated thereto, and therefore nor embodied in the latter Indian's right to hunt. As the Treaty right to hunt is a constitutionally protected right, it is submitted that the case-by-case approach advocated by this Court in 20 relation to s. 35(1) of the Constitution Act, 1982 is equally applicable. As this Court stated in R. v. Sparrow, [I S.C.R. 1075: We wish to emphasize the importance of context and a case-bycase approach to s. 35(1). Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case. [at In determining, therefore, whether Mr. Sundown's activities were "reasonably 30 incidental" to his right to hunt, reference must be made to the evidence at trial, the vast majority of which was uncontroverted. When this is done, it is apparent that the shelter constructed by the Respondent was directly related to his right to hunt.

13 (iv) ADDlication of the Test to the Facts of this Case 36. First, the evidence was that the Respondent and his forefathers had hunted and fished in the cabin area for generations. This case does not involve a person suddenly setting up camp in an area to which he has or had no connection. Not only does the park border the Respondent's reserve, but the area where the Respondent built the shelter is within the Band's fur trapping block. 37. Second, the evidence further indicated that the use of some form of shelter was also part of the Respondent's forefathers method of hunting in this area. Further, these hunting 10 expeditions - in days past and present - involved several-day expeditions, making a shelter essential. As noted above, the cabin is within the trapping block of the Joseph Bighead First Nation. This trapping block is largely within the park, and was established between 1940 and Since the members of the Joseph Bighead First Nation are restricted, for trapping purposes, to the trapping block of the Band, this in and of itself does not allow for trapping on a single day basis because of its distance from the reserve. The Respondent and other Band members are restricted from trapping in other areas and must stay within the trapping block to trap. This is, therefore, also the most convenient place to hunt and fish. 38. In short, the structure constructed by the Respondent is not the fust time a structure has 20 been used - it is simply a slight evolution of what started out as log lean-to's, and then tents, and then ultimately a log cabin which was used for some seventeen years before the present one was built. In this respect, the comments in Simon are apposite, where this Court, in interpreting the Treaty of 1752, confirmed that the right to hunt cannot be confined to the methods in use at the time the Treaty was signed in 1752: Having determined that the Treaty embodies a right to hunt, it is necessary to consider the respondent's contention that the right to hunt is limited to hunting for purposes and by methods usual in 1752 because of the inclusion of the modifier "as usual" after the right to hunt. First of all, I do not read the phrase "as usual" as referring to the types of weapons to be used by the Micmac and limiting them to those used in Any such construction would place upon the ability of the Micmac to hunt an unnecessary and artbcia1

14 constraint out of keeping with the principle that Indian treaties should be liberally construed. Indeed, the inclusion of the phrase "as usual" appears to reflect a concern that the right to hunt be interpreted in a flexible way that is sensitive to the evolution of changes in normal hunting practices. The phrase thereby ensures that the Treaty will be an effective source of protection of hunting rights. [per Dickson C.J. (for the Court), at 402; emphasis added] 39. While these comments were in specific reference to the wording of that Treaty, the 10 requirement that treaties be interpreted liberally was not. It is respectfully submitted that that same reasoning that was used in Simon be used here. Just because the Respondent's forefathers utilized log lean-tos covered with moss should not so restrict the Respondent. The Respondent's structure was only a slight evolution of what had been used for generations previously. 40. Third, the evidence at trial as to the use to which the cabin was put clearly shows its close relationship to the Respondent's hunting. The cabin was used extensively - by the Respondent and his nine brothers; it was used frequently - numerous times per month; and it was used exclusively for hunting and fishing - there was no suggestion in the evidence that this 20 was a "recreational" cabin with only incidental usage for hunting and fishing. In addition to its obvious use for providing shelter as the "hub" for "hub and spoke" type hunting, the evidence disclosed the cabin's necessity for the processing of the required food. Animals were skinned, and the furs dried in the cabin. Fish (and game when obtained) were smoked and dried, a 2-4 day process. The cabin is central to the activities of the hunt both before and after the kill. It provides shelter before the kill, and is used as a jumping-off point. After the kill, it is used for processing the food. The cabin was used as an integral part of the hunt. 41. Finally, the evidence as to the location of the cabin confm its relatedness to the Respondent's right to hunt. A shelter located some distance away from where the hunting 30 occurs, or next door to the Respondent's home might show a lack of required connection to the Respondent's hunting activities. In fact, the evidence was otherwise. The shelter is logically and reasonably located. It is located where the hunting, fishing and trapping occur. It is a short distance from a dilapidated cabin which the Respondent had previously used for years and where he had hunted and fished since he was a boy. It is within the fur trapping block,

15 and it is far enough away from his home to illustrate its utility - hauling fish and game 100 kilometres one way to process them, and then returning another 100 kilometres to continue the hunt is clearly impractical. 42. In summary, determining what activities are reasonably incidental to the act of hunting itself must be done on a fact specific, case-by-case basis. On the basis of the uncontroverted facts above, led at trial, the Court of Appeal applied the admittedly correct test (from Simon), and - coming to the same conclusion as the Summary Conviction Appeal Court on this charge - concluded that "in this case, by this Respondent" (per Vancise J.A., Appellant's Record, page ) such actions were reasonably incidental to the Respondent's hunting activities. 43. There is no suggestion by the Appellant that the Court of Appeal applied the wrong test. As such, unless it can be said that the application of this test to the facts was clearly mistaken, there is no error which warrants review. 44. On the basis of the evidence led in this case - much of it through the Crown's witness - it cannot be said that the Court of Appeal's conclusion was clearly in error; indeed, the Appellant led no evidence at trial to suggest that the Respondent's actions were not reasonably incidental to the right to hunt - such as, for example, that this activity was not performed by 20 the Respondent's ancestors, or that, although constructed, the cabin was never used. As such, the Summary Conviction Appeal Court's conclusion and the Court of Appeal's conclusion were very reasonable and entirely consistent with the evidence led at trial. 30 (v) Similar Cases 45. Moreover, the conclusion is consistent with similar cases, most notably R. v. Sioui, supra. There, the accused were charged and convicted of cutting down trees, building a shelter and camping, and making fires in places not designated in the Jacques - Cartier Park in Quebec. Those actions were admitted by the accused, but they argued that the same were part of their ancestral customs and religious rites, which were the subject of treaty.

16 46. The Court was unanimous in upholding the acquittals of the accused. Although the Jacques - Cartier Park was a conservation park, which was to be accessible to the public for the purposes of "education and cross-country recreation", this Court found that the accused's activities were not incompatible with the park's purpose. Lamer J. (as he then was) held at page 1073 on this point as follows: 20 For the exercise of rites and customs to be incompatible with the occupancy of the park by the Crown, it must not only be contrary to the purpose underlying that occupancy, it must prevent the realization of that purpose. First, we are dealing with Crown lands, lands which are held for the benefit of the community. Exclusive use is not an essential aspect of public ownership. Second. I do not think that the activities described seriously compromise the Crown's objectives in occupying the park. Neither the representative nature of the natural region where the park is located nor the exceptional nature of this natural site are threatened by the collecting of a fmplants, the sening up of a tent using a few branches picked up in the area or the making of a fire according to the rules dictated by caution to avoid fires. These activities also present no obstacle to cross-country recreation. I therefore conclude that it has not been established that occupancy of the territory of Jacques-Cartier park is incompatible with the exercise of Huron rites and customs with which the respondents are charged. [emphasis added] 47. The similarities between Sioui and the instant case are evident. It is submitted that the practice of cutting trees and building a small cabin is as much a part of the exercise of the Treaty right to hunt, fish and trap of the Indians of the Joseph Bighead First Nation as the cutting of trees, building of fires and setting up of a tent was to the exercise of the Treaty right to practice their religious customs and rites by the Huron Indians in the Sioui case. Nothing more was set out in the Treaty relating to the Hurons in relation to the above rights than is set out in Treaty No. 6 in relation to the hunting and fishing rights. Accordingly, it is no more or less of a question that these activities were "incidental" to the exercise of the right in question in Sioui than in the instant case. The evidence in Sioui was that these activities were part of 30 the Treaty right, and they were therefore protected. The evidence before this Court is to the same effect in relation to the hunting rights of the Joseph Bighead First Nation members. 48. It is submitted that the case of Cluxton v. Saanichton Marina Ltd., supra, explicitly interprets the test set out in Simon as the accused is suggesting it ought to be interpreted. At page 56 the Court stated:

17 The right to carry on the fishery encompasses other rights which are incidental to the right granted by the treaty. [emphasis added] 49. At page 56 the Court concluded: I conclude the effect of the treaty is to afford to the Indians an independent source of protection of their right to carry on their fisheries as formerly. Upon the basis of the reasoning in the Simon case, this would include the right to travel to and from the fishery It will be seen that these cases and their stating of the test to be applied are consistent with prior caselaw. In Myran v. The Queen, [1976], 2 S.C.R. (3d), (S.C.C.), the Supreme Court of Canada dealt with the Manitoba Natural Resources Transfer Agreement. At page 4, this Court stated: I think it is clear from Prince and Myron, that an Indian of the Province is free to hunt or trap game in such numbers, at such times of the year, by such means or methods and with such contrivances, as he may wish, provided he is doing so in order to obtain food for his own use and on unoccupied Crown lands or other lands to which he may have a right of access. [at 141; emphasis added] 51. In R. v. Ireland and Jarnieson (1990), 1 O.R. (3d) 577 (Ont. Ct., G.D.), certain Treaty Indians were charge with hunting without a license and in the closed season. The defence was based on the Treaty right to hunt and Section 88 of the Indian Act. At page 584 the Court set out general principles of law applicable to cases such as this. The Simon, supra and Sioui, supra decisions were referred to. At page 585 the Court stated as follows: If there is evidence, by conduct or otherwise, of how the parties understood the terms of the treaty, it may be an aid in giving meaning to its terms. [emphasis added] 52. With respect to this last point, the Court elaborated as follows at page 586: If there is any evidence by conduct or otherwise of how the parties understood the terms of the treaty, such understanding is of assistance in giving content to the treaty. There is such evidence here and it supports the position of the Indians....The

18 respondents and other members of their tribe have hunted in the area covered by the treaty without provincial hunting licences and without following provincial hunting seasons. This is evidence of the Iroquois understanding that these treaty rights were to be free of all disturbances. (vi) R~SDO~S~ to A~~ellant's Arrmments on A~Dlication of the Test 53. The Appellant makes various arguments in support of its position that this Court should find that the Respondent's actions in building a cabin were not reasonably incidental to his 10 hunting activities. The Respondent wishes to respond to four of those arguments. 54. First, the Appellant argues at paragraph 28 of its Factum that the "reasonably incidental" test set out in Simon imposes two requirements - that the actions be both incidental and reasonable. With respect, this is a clear misreading of Simon. The word "reasonably" modifies the word "incidental" - it is not a separate requirement. In fact, "reasonably" restricts the otherwise broad meaning of the word "incidental", and means "relatively" or "more than slightly". If reasonableness was a separate requirement, one would have expected this Court to have said in Simon: "it should be clarified at this point that the right to hunt to be effective must embody those activities which are reasonable and incidental to the act of 20 hunting itself...." Of course, this Court did not use those words. 55. In short, in ordinary parlance, the adverbial phrase "reasonably incidental" does not import two requirements, but simply one. For example, to say that one is "reasonably confident" that it will rain does not mean that one is both confident and reasonable; it means that one is relativefy confident. 56. Second, at paragraphs 43 and 44, the Appellant argues that the Court of Appeal erred in its interpretation of the Simon test by reliance upon "method of hunting" cases, as opposed to cases dealing with the right to hunt. It is respectfully submined that attempting to draw such 30 an artificial distinction between these two concepts is unwarranted. This Court made that point in Sparrow, when it stated as follows: While it is impossible to give an easy definition of fishing rights, it is possible, and, indeed, crucial, to be sensitive to the

19 aboriginal perspective itself on the meaning of the rights at stake. For example, it would be artzjicial to try to create a hard distinction behveen the right to fish and the particular manner in which that right is exercised. [at 11 12; emphasis added] 57. In short, whether building a log shelter is the way the Respondent hunts, or is only related to his hunting activities is, in the end, a distinction without a difference. 58. Third, the Appellant argues at paragraphs 48 and 49 of its Factum that there is an 10 overriding requirement of reasonableness in the Simon definition, and that the construction of the cabin by the Respondent was unreasonable. Specifically, the Appellant argues that the Respondent admitted he could exercise his hunting rights without a cabin, and that other alternatives - such as staying at the campground in the park - were open to the Respondent. 59. The Respondent does not disagree that there is an overriding requirement of reasonableness - this is inherent in the phrase 'reasonably incidental". Put another way, it is hard to conceive of how an unreasonable activity could be considered to be "reasonably incidental" to hunting. However, the Respondent disagrees with the Appellant's suggestion that the construction of his cabin was unreasonable. In particular, the Respondent denies that 20 he ever acknowledged, as the Appellant suggests that he did, "that he could exercise his hunting rights in the park without a cabin" (Appellant's Factum, paragraph 49, lines 30 and 3 I). Even if this were the evidence, it suggests a requirement of absolute necessity, which is not the Simon test. For example, in CM, this Court found that teaching fishing was a right incidental to fishing itself: The actions of the appellant Cat6 in this instance, of course, did not represent an act of fishing for food per se; rather, he was fishing to illustrate and teach younger aboriginal students the traditional Algonquin practices of fishing for food. But this fact should not change the nature of the appellant's claim. In the aboriginal tradition, societal practices and customs are passed from one generation to the next by means of oral description and actual demonstration. As such, to ensure the continuity of aboriginal practices, customs and traditions, a substantive aboriginal right will normally include the incidental right to teach

20 such a practice, custom and tradition to a younger generation. [at 176; emphasis added] 60. It cannot be suggested that since one can fish without teaching, teaching is not an incidental right - just as one cannot suggest that since one can hunt without a cabin, building the same is similarly not an incidental right. It is submitted that the Respondent is not required to seek out alternative methods, to the traditional methods, in which to exercise his Treaty right to hunt, fish and trap The Appellant goes on to suggest that if an overnight stay in the park was "desired", the Respondent could stay at the campground at the east end of the lake. Not only was there no evidence led on this point by the Appellant, nor was such a proposition put to the Respondent in cross-examination, but it is clearly impractical. For example, is the Respondent expected to transport a moose to a campground? What about the campground fees? What happens when the campground is full or closed? Is the Appellant seriously maintaining that dressing and smoking a moose for several days, or skinning and drying pelts over the same period, in a public campground is more desirable than the present situation? It is respectfully submitted that the Appellant's suggestion of use of the campground would be completely impractical for the Respondent - given the distance from the trapping block - and highly 20 undesirable for other park users. Moreover, use of the campground raises another set of nearly identical problems - for there is a separate permit requirement in the Regulations for camping (See Appendix "Bn). In short, use of the campground by the Respondent would require him to obtain a permit and pay a fee every time he wished to stay overnight. 62. Fourth, and finally, the Appellant at paragraph 50 of its Factum raises the spectre of many unauthorized cabins "springing up throughout parks". With respect, the Court of Appeal decision in this case no more stands for the proposition that any Indian can build any cabin in any park than does the "banered wife syndrome" defence stand for the proposition that a wife may kill her husband. As set out above, each of these cases are decided on their 30 own facts. The Appellant's argument here ignores the fact that much evidence as to the Indian's hunting traditions and history must be adduced, together with evidence as to the

21 specific circumstances of the location where the shelter was constructed and its relationship to the Treaty right to hunt, fish and trap. This case only has application where the accused has led evidence, accepted by the Court, of a historical manner of exercising a Treaty right, and in the particular circumstances where the Crown has not led evidence as to either the incompatibility of the Treaty right with the usage of the lands, or justification for infringement of the right. Given the evidence at trial that the Treaty right to hunt, fish and trap of the Joseph Bighead First Nation has existed since 1913, and that only a few cabins to date have been erected to accommodate these rights, there is no reason to suspect that any further cabins will be constructed to facilitate these Treaty rights. By definition, few other cabins would be 10 warranted. (b) Does Provincial Leeislation infringe uvon this right? 63. If it is accepted that the Respondent's Treaty right to hunt and fish in this case includes the right to build a log shelter, it is respectfully submitted that it follows, ipso facto, that provincial legislation or Regulation which prohibits such construction, or prohibits obtaining the means for the same, is a direct infringement of the Treaty. 64. In Simon, the issue was whether a prohibition on carrying a weapon and certain types of ammunition conflicted with the accused's Treaty right to hunt. Once having found that this 20 Treaty right included the carrying of a rifle and the use of certain ammunition, this Court set out the next stage of the inquiry as follows: Therefore, the question here is whether s. 150(1) of the Lands and Forests Acr, a provincial enactment of general application in Nova Scotia, restricts or contravenes the right to hunt in article 4 of the Treaty of If so, the treaty right to hunt prevails and the appellant is exempt from the operation of the provincial game legislation at issue. [at The Court answered the inquiry as follows: In my opinion, s. 150 of the Lad and Foresrs Act of Nova Scotia restricts the appellant's right to hunt under the Treaty. The section clearly places seasonal limitations and licensing requiremenu, for the purposes of wildlife conservation, on the

22 right to possess a rifle and ammunition for the purposes of hunting. The restrictions imposed in this case conflict, therefore. with the appellant's right to possess a firearm and ammunition in order to exercise his free libem to hunt over the lands covered by the Treaty. [at 413; emphasis added] 66. It is respectfully submitted that the same result obtains in this case. Just as a prohibition on carrying a weapon and using certain ammunition conflicts with a free liberty to hunt, so too does a prohibition on building structures or occupying land conflict with the right 10 to construct a hunting shelter. 2. Effect of Conflict Between Treaty & Provincial Legislation (a) Provisions that mieht make Provincial Leeislation Aoulicable 67. To ascertain the effect of a conflict between provincial legislation and a Treaty right, it is necessary to examine the mechanism by which such legislation is purportedly applicable to Indians, for such jurisdiction normally rests with the Federal Government. The Appellant does not set out in its Factum the mechanism by which it says this legislation is applicable to the Respondent, R. v. Badger [I S.C.R. 771, at 809, per Cory I. 68. One possible way for provincial legislation to be applicable to Indians is through the Treaty itself, given that the right granted to pursue hunting and fishing is said to be "subject to such regulations as may from time to time be made by "her Government of her Dominion of Canada". It is submitted that this reference to government regulation relates to laws respecting conservation, but does not relate to restrictions that may be placed on the methods used by the Indians to hunt and fish. 69. At paragraph 41 of the Appellant's Factum the Appellant refers to passages from The 30 Treaties of Canada with the Indians of Manitoba and the North-West Territories by the Honourable Alexander Morris. If evidence of this nature is to be referred to by this Court, the Respondent wishes to make the following submissions.

23 70. In Morris, the author sets out, at pages , the negotiations leading up to the treaties at Forts Carlton and Pitt, or Treaty No. 6. There are numerous references to the Crown assuring the Indians that, after the Treaty was signed, they would be entitled to hunt and fish as before. For example, at page 184, Morris states as follows: I then fully explained to them the proposals I had to make, that we did not wish to interfere with their present mode of living, would assign them reserves and assist them as was being done elsewhere, in commencing to farm, and that what was done would hold good for those that were away. [emphasis added] 71. Later in the same letter at page 193, the following is found: I then asked the Bear to tell the other two absent Chiefs, Short Tail and Sagamat, what had been done; that I had written h i and them a letter, and sent it by Sweet Grass, and that next year they could join the treaty; with regard to the buffalo, the North West Council were considering the question, and I again explained that we would not interfere with the Indian's daily life except to assist them in farming. [emphasis added] At page 215, Morris sets out the narrative of one of the Chiefs demands: We want to be at liberty to hunt on any place as usual. 73. The response of the Governor, found at page 218, was as follows: You want to be at liberty to hunt as before. I told you we did not want to take that means of living from you, you have it the same as before, only this, if a man, whether Indian or Half-breed, had a good field of grain, you would not destroy it with your hunt. [emphasis added] Similar references to allowing the Indians their "mode of living as before" are found at pages 221, 231, 233 and The only reference in these negotiations to the enactment of regulations was to a conservation law protecting the buffalo. discussion: At page 188, Morris sets out the text of this If a general famine came upon the Indians the charity of the Government would come into exercise. I admitted the

24 importance of steps being taken to preserve the buffalo, and assured them that it would be considered by the Governor- General and Council of the North-West Territories, to see if'a wise law could be framed such as could be carried out and obeyed. 76. He stated later at page as follows: 4". In connection with the aiding of the Indians to settle, I have to call attention to the necessity of regulations being made for the preservation of the buffalo. These animals are fast decreasing in numbers, but I am satisfied that a few simple regulations would preserve the herds for many years. The subject was constantly pressed on my attention by the Indians, and I promised that the matter would be considered by the North-West Council. The council that has governed the territories for the last four years was engaged in maturing a law for this purpose, and had our regime continued we would have passed a statute for their preservation. I commend the matter to the attention of our successors as one of urgent importance. 77. Morris further stated at page 228: With regard to the preservation of the buffalo, it is a subject of great importance, it will be considered by the Lieutenant- Governor and Council of the North-West Territories to see if a wise law can be passed, one that will be a living law that can be carried out and obeyed. If such a law be passed it will be printed in Cree as well as in English and French; but what the law will be I cannot tell - you held councils over the treaty, you did not know before the councils closed what you would decide as to the treaty - no more can I tell what the North-West Council will decide. 78. Similarly, the Governor is reported at page 241 as saying: I wish you to understand fully about two questions, and tell the others. The North-West Council is considering the framing of a law to protect the buffaloes, and when they make it, they will expect the Indians to obey it. The Government will not interfere with the Indian's daily life, they will not bind him. 79. In short, the only reference in the negotiations leading up to the Treaty respecting the 40 application of laws to Indians was the reference to a law for the conservation of buffalo.