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A political analysis of: R. v. Badger

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Justin S.
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  1. Introduction
  2. The overlap of the rights presented within treaty No.8 and the NRTA
  3. Several principles that had to be kept in mind during litigation
  4. Differences between the rights of the Indians in the NRTA and those previously listed in Treaty No.8
  5. The [ti]right of access[ti]
  6. Testimony by historian John Foster
  7. The case of Mr. Badger
  8. Relevant treaty and statutory provisions

The supreme court of Canada stands as the highest level of court in Canada and is the final stop for all cases which have been appealed from the superior provincial courts. Unlike the lower courts, the supreme court of Canada seats up to nine judges with each appeal seating a minimum of 5 justices to interpret the facts of a case. The Supreme Court's decisions have a strong influence on the social and political aspects of Canadian society as the precedents set within the court apply to all lower courts within the country. The case of R. v. Badger [1996] was one appeal that dealt with Aboriginal hunting rights protected under section 35 (1) of the Canadian constitution. This case was significant as it dealt with whether Aboriginals retained their right to hunt on privately owned land outlined within treaty (8). Furthermore this case examined weather the changes made to Aboriginal rights by the Alberta Natural Resources Transfer Agreement (NRTA) was reasonable and plausible limitations.
Before examining the course of litigation, one must gain an understanding of the charges laid against the three appellants. The appellants in this case were: Wayne Clarence Badger, Leroy Steven Kiyawasew and Ernest Clarence Ominayak. All three appellants were Cree status Indians from Alberta whom were covered under treaty No.8. The three men were charged with infractions under the wildlife act as their treaty right to hunt did not extend to privately owned property.

[...] Badger was hunting on was covered with shrub growth and had a lack of signs and fences, the presence of the house only mile away was enough to classify the land as being in use. While the presence of signs and fences had been a pre-requisite for assessing land usage, the court fell on the precedents set by R. v. Myran in order to make their decision (R. v. Badger[1996] S.C.R.). In this case, two hunters were accused with discharging their rifles in a farmer's field which lacked any signs. [...]


[...] from a rundown house. The next appellant, Leroy Kiyawasew, was caught hunting on a snow covered farmers field that showed signs that it had been recently harvested. The appellant also admitted that while there were signs posted on the land, he could not read them from the road. Furthermore there was a fence on the land as well as several run down barns and as a result, Kiyawasew was charged under s.26 with hunting without a license. The third appellant, Ernest Clarence Ominayak, was also charged under S.26 with hunting without a license when he shot and killed a moose while hunting in an un-cleared muskeg(R. [...]


[...] If one puts themselves in the position of a property owner it is easy to formulate an opinion on this issue. It is hard to imagine any property owner being content with someone discharging firearms on their property without their permission, when it is clearly being put to use. Given that rifles have an impressive range, it would become a serious safety to the land owners and those on their property if the precedent had been set the opposite way. [...]

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