Agricultural Law Netletter - May 7, 2018

HIGHLIGHTS

The Saskatchewan Court of Appeal has set aside the decision of a Summary

Appeal Court, and reinstated the acquittal of a Treaty Indian who had been charged with hunting wildlife out of season, and who had killed a moose in a slough on farm land without seeking the permission of the farmer to enter the land. The Court of Appeal reviewed the 1996 decision of the Supreme Court of Canada in R v Badger with respect to the right of Treaty Indians to hunt on private land based on the concept of "visible, incompatible land use" and what this means. Factors related to the nature of the slough, whether there were residences, fences, pasture lands, livestock and cultivated land in the immediate area and whether the land was posted with no hunting or no trespassing signs, were considered. (R. v. Pierone, CALN/2018-012, [2018] S.J. No. 165, Saskatchewan Court of Appeal)

NEW CASE LAW

R. v. Pierone;

CALN/2018-012,

Full text: [2018] S.J. No. 165;

2018 SKCA 30,

Saskatchewan Court of Appeal,

G.R. Jackson, N.W. Caldwell and L.M. Schwann JJ.A.,

April 27, 2018.

Indian Treaty Rights to Hunt on Private Land -- The Right to Hunt on Private Farm Land

Without the Owner's Consent.

Kristjan Pierone ("Pierone") appealed to the Saskatchewan Court of Appeal from the decision of a Summary Conviction Appeal Court which substituted a conviction for his acquittal at trial on a charge of unlawful hunting under s. 25(1)(a) of the Wildlife Act, 1998, SS 1998, c. W-13.12, "other than at the times, in the places and in the manner prescribed" by that Act.

Pierone is a Treaty Indian. He appealed to the Court of Appeal on the grounds that the Summary Conviction Appeal Court failed to correctly apply the "test" in R v Badger, [1996] S.C.J. No. 39 (SCC), [1996] 1 SCR 771, in which the Supreme Court discussed when an Indian has a right of access to private land for the purposes of exercising Treaty hunting rights.

Pierone is a status Indian from Treaty 5 in northern Manitoba. He lives and works from Swift Current, Saskatchewan which is in Treaty 4 territory.

On September 30, 2015 Pierone shot a bull moose in a slough bottom approximately 70 metres off a roadway on land owned by a farmer.

The farmer did not, at any time, give Pierone permission or consent to hunt on the farm land.

The moose was shot out of season.

Pierone had scouted the land and knew that the land surrounding the slough was used for farming. The crop had been taken off the surrounding land and stubble...