R v. Cardinal, 2011 ABCA 72

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On February 22, 2011, the Alberta Court of Appeal refused to hear an appeal from the summary convictions of Ernest Cardinal and William James Cardinal.

The applicants were members of the Beaver Lake Cree Nation in Alberta.  They were charged and convicted after they sold fish on the Beaver Lake Indian reserve without a commercial license, contrary to Regulation 203/1997 of the General Fisheries (Alberta) Legislation.  The case was dismissed on the basis that the issues raised had already been determined by earlier findings of both the Alberta Court of Appeal and the Supreme Court of Canada.

The applicants challenged the seminal case of Cardinal v. Alberta (Attorney General), [1974] SCR 695, 40 DLR (3d) 553 [Cardinal], arguing that it was wrongly decided.  In the original Cardinal decision, it was determined that section 12 of the Alberta Natural Resources Transfer Agreement (NRTA) made the provisions of the provincial Wildlife Act applicable to all Indians, including those on reserves.  They argued that Cardinal is no longer applicable since the adoption of s. 35 of the Constitution Act, 1982. They said that Alberta has no jurisdiction over fishing on an Indian reserve because of section 10 of the Alberta NRTA and the decision in R v. Blais, [2003] 2 SCR 236, arguing that the NRTA only modified the Treaty right to hunt commercially, not to fish commercially. Finally, they argued that Alberta lacks jurisdiction over commercial fishing on reserve because of the doctrine of interjurisdictional immunity, which prevents a law from applying outside the jurisdiction of the body that enacted it.

The court found that Cardinal had been affirmed in the 1990 decision of R v. Horseman, [1990] 1 SCR 901 [Horseman].  Horseman found that section 12 of the NRTA extinguished any treaty rights which previously allowed for commercial hunting, limiting Indians to hunting and fishing “for food” only.  Since section 35 of the Constitution Act only protects existing treaty rights, any treaty rights that were altered by the 1930 NRTA are not protected.

The Court stated that Alberta has the power to regulate the sale of fish in the province as confirmed in section 9 of the NRTA and subsections 92(13) and 92(16) of the Constitution Act, 1967.  Section 88 of the Indian Act gives jurisdiction to the province to legislate so long as it does not affect Treaty rights of Indians in the province.  Interjurisdictional immunity was held not to be applicable as the province was given explicit authority to legislate in order to preserve wildlife and natural resources.  Therefore, the treaty right to fish commercially as “reduced, modified or extinguished” by section 12 of the NRTA could not be infringed by provincial commercial hunting and fishing legislation.