Badger Case

Background

On 21 June 1899, Treaty 8 was signed by the Crown and First Nations of the Lesser Slave Lake area in anticipation of settlement (see also First Nations in Alberta). For First Nations, it served to protect their people and their livelihood. Signed as between equal nations, the text of Treaty 8, amongst other things, surrendered land to the Crown. It also granted the First Nation signatories, subject to certain limitations, the right to continue to hunt, fish and trap on those surrendered lands (see Rights of Indigenous Peoples in Canada).

In January 1991, three Cree men, who were Treaty 8 beneficiaries, were separately charged with offences under Alberta’s Wildlife Act. They had shot and killed moose on privately owned land within Treaty 8 territory. One of the men, Wayne Badger, was charged with hunting outside the permitted hunting season. Badger had shot a moose on brush land about 400 metres from a farmhouse. The other two men, Leroy Kiyawasew and Ernest Ominayak, were charged with hunting without a license. Kiyawasew had been hunting on a snow-covered field some distance from abandoned, run-down barns. Ominayak had been hunting on uncleared muskeg. All three of the men were hunting for food.

Early Legal Battles

The three men were convicted in the Provincial Court of Alberta under sections 26(1) and 27(1) of the Wildlife Act (see also Court System of Canada). They appealed their summary convictions together to the Court of Queen’s Bench. They challenged the constitutionality of the Wildlife Act. They argued it did not apply to them as beneficiaries under Treaty 8. Their appeal to the Court of Queen’s Bench was unsuccessful, as was their appeal to the Court of Appeal for Alberta. They decided to appeal the decision of the Alberta Court of Appeal to the Supreme Court of Canada. On 1 and 2 May 1995, their appeal was heard before a panel of seven judges. 

Supreme Court of Canada Decision

In a 5–2 decision, the Supreme Court ruled that the appeals of Wayne Badger and Leroy Kiyawasew should be dismissed and their convictions upheld. The Court determined that the appeal of Ernest Ominayak should be allowed, and it ordered a new trial.

To arrive at this conclusion, the Court focused on interpreting two limitations to the right to hunt, trap and fish (see also Rights of Indigenous Peoples in Canada). Treaty 8 set out both a geographic and a regulatory limitation. The geographic limitation was understood to mean that the right to hunt for food did not allow for hunting in areas where the Crown had taken up land for its own purposes. The central question in this case was whether private property was land “taken up” by the Crown.

The Court relied on historical records from the time of the signing of Treaty 8. It determined that the signatories of the treaty would have understood land to be “taken up” when it was put to visible use that was incompatible with hunting. Therefore, treaty signatories could hunt on private property within Treaty 8 territory so long as the property was not visibly incompatible with hunting. Applying this standard, the Court determined that because Badger was hunting near a farmhouse, he was hunting on land visibly incompatible with his treaty right. In Kiyawesew’s case, the Court determined that he was also hunting illegally for the same reason. He had been hunting on a snow-covered field that was harvested in the fall and in the vicinity of run-down barns. On this basis, the appeals of Badger and Kiyawesew were dismissed. However, the Court held that Ominayak had not breached the geographical limitation. While he was also hunting on private land, it was uncleared muskeg with no fences or signs. Therefore, the Court determined the area was not visibly incompatible with the right to hunt for food.

In Ominayak’s case, the remaining question was whether the Wildlife Act was the kind of regulation contemplated under the treaty as a lawful limitation on the right to hunt. The Court determined that the provision was not a lawful limitation. It determined Ominayak’s treaty right to hunt was breached. The Court opted to send his case back to trial for determination of whether the limitation could be justified by the Crown.

Impact

For Wayne Badger and Leroy Kiyawasew, the decision by the Supreme Court meant that their convictions were upheld. For Ernest Ominayak, the decision meant he would face a new trial. This trial would determine whether the Crown could justify the infringement of his treaty right to hunt (see also Rights of Indigenous Peoples in Canada).

For treaty beneficiaries across Canada, the decision ushered in a new era of treaty interpretation (see also Treaties with Indigenous Peoples in Canada). The Court affirmed four principles of treaty interpretation that have formed the basis for all subsequent approaches. It affirmed

1. A treaty represents a sacred promise between the Crown and the First Nation signatories;
2. The honour of the Crown is always at stake when dealing with Indigenous peoples;
3. Any ambiguities in the wording of a treaty should be resolved in favour of the Indigenous signatories;
4. The onus on proving that a treaty or Aboriginal right has been extinguished rests with the Crown.

These four principles were followed in the leading case on treaty interpretation, R. v. Marshall (1999). They were fundamental to the Court finding that the Crown had breached its duty to consult First Nations within Treaty 8 territory in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005). In July 2024, these principles guided the finding that the government of Ontario had breached its treaty obligations to First Nations under the Robinson Treaties in Ontario (Attorney General) v. Restoule (2024).

The Court also confirmed, following the earlier R. v. Sparrow (1990) case, that treaty rights are not absolute. The decision confirms that treaty rights can be limited if the Crown can justify that infringement. As of 2026, the Crown has never succeeded in justifying an infringement of a treaty right.