Supreme Court of Canada Affirms Right to Build Hunting Cabin in Provincial Park: Sundown

Many Treaty cases have sought to vindicate rights explicitly guaranteed in Treaties, for example, the right to hunt or fish. On March 25, 1999, the Supreme Court of Canada issued its decision in Sundown, dealing with Treaty 6 rights.

Treaty 6 guarantees the signatory First Nations the aboriginal right to fish and hunt. In this case, Mr. Sundown was convicted of building a permanent dwelling on park land without permission, in contravention of a regulation passed by the provincial government.

Mr. Sundown, a member of a Cree First Nation, had cut down trees in a provincial park. He used them to build a log cabin in order to hunt in that area. He testified that he needed the cabin for shelter while hunting and as a place to smoke fish and meant and to skin pelts. Evidence was presented at trial of a long-standing band practice to conduct expeditionary hunts in the area. In order to carry out these hunts, various shelters were built at the hunting sites, including log cabins.

It was uncontested that Mr. Sundown had a right to hunt in this area. Under Treaty 6, he was entitled to hunt on land occupied by the Provincial Crown, including the park.

The Supreme Court of Canada concluded that Treaty rights include activities that are "reasonably incidental" to the exercise of that right. The right must be interpreted in a way that takes into account modern developments or unforseen alterations in the right. The issue is whether the activity was understood in the past and is understood today as significantly connected to hunting. Incidental activities must be meaningfully related or linked to the exercise of the right.

The Courts determine what activities are reasonably incidental to existing rights. The test is whether a reasonable person, with knowledge of the relevant manner of hunting or fishing, would consider the activity in question reasonably related to the act of hunting or fishing. The Court stated that the reasonable person must be objective and fully aware of the circumstances of the Treaty rights holder. The reasonable person must also be aware of the manner in which the First Nation hunted and fished at the time the Treaty was signed.

The Court concluded that a reasonable person made aware of traditional methods of hunting would decide that, for this First Nation, the Treaty right to hunt included the right to build shelters. Without shelter, expeditionary hunting would be impossible. Taking into consideration modern developments in the exercise of the right, a log cabin would be an appropriate shelter in today's society. It was, therefore, reasonably incidental to this method of hunting.

The Court held that the provincial regulations in issue conflicted with Treaty 6, which permits the respondent to build a cabin as an activity reasonably incidental to his right to hunt. Because Section 88 of the Indian Act provides that provincial laws apply subject to treaty terms, the provincial regulations in question could not apply to deny the signatories of Treaty 6 the exercise of their Treaty rights, including the incidental right to build shelter.

This decision is significant in that, in our view, it can be extended by analogy to aboriginal rights. An aboriginal person exercising aboriginal rights will be permitted to carry out activities that are "reasonably incidental" to the exercise of those rights.