First Nation's moose hunting case to make 'new case law' in Manitoba, lawyers say as hearings conclude

A decision over how the provincial government regulates moose hunting in a First Nation's traditional territory now rests with a Manitoba judge, whose ruling will be precedent-setting, lawyers in the case say.

"Justice Bowman, you'll be making new case law no matter what you decide," said lawyer Byron Williams, who represented Pimicikamak Cree Nation in the hearing about the Manitoba government's awarding of moose-hunting licences to non-Indigenous hunters.

Court of King's Bench Justice Brian Bowman heard competing arguments from the First Nation's lawyers and the Manitoba Wildlife Federation, as well as provincial lawyers, in the two-day hearing that started Tuesday. He reserved his decision after hearing the province's arguments Wednesday.

Jamie Moses, then the minister of natural resources, sparked fury from the two groups this past summer after he slashed the number of moose draw hunting licences for Manitoba residents by 75 per cent — from a total of 400 to 100 — across four of Manitoba's 62 game hunting areas.

Pimicikamak's lawyers argued the province's July 11 licensing decision infringed on its rights under provincial laws, Treaty 5 and the 1977 Northern Flood Agreement. The Wildlife Federation, a conservation organization that represents the interests of hunters, argued the cut in licences was not based in science.

On Wednesday, Manitoba's lawyers asked Bowman to dismiss the Wildlife Federation's case, and also toss Pimicikamak's request for an injunction against the moose-hunting licences — but still allow the First Nation to bring a civil lawsuit to decide the case.

Jim Koch, a lawyer representing the province, argued Pimicikamak's application was "inappropriately before the courts," saying a judicial review is not the place to decide on a First Nation's rights.

"They're coming at it the wrong way. You shouldn't hear it on that basis," he told Bowman.

A statement of claim would be a more suitable forum for Pimicikamak's case, Koch said.

"To my knowledge, at least in the civil context, Manitoba courts have not yet grappled with a case where a First Nation has gone to trial to prove an Aboriginal or treaty right," he said.

"It's fairly uncharted territory, locally."

Koch argued that Moses's communications with Pimicikamak leading up to the July 11 decision fulfilled the legal obligation of the Crown to consult and, where appropriate, accommodate Indigenous people before making decisions that may infringe on Aboriginal and treaty rights.

He also rejected Pimicikamak's argument that the province made a "political compromise" when it issued some licences across the four game hunting areas. He said the First Nation "essentially made a tactical decision" with its application for an injunction, when Moses had been trying to propose a path forward with them.

'An injunction is necessary'

The traditional territory of Pimicikamak, also known as the Cross Lake Resource Area, spans nearly 15,000 square kilometres and portions of four of Manitoba's game hunting areas, including two of four GHAs subject to the 75 per cent licence reduction.

Hunters who received moose draw licences for those GHAs were able to harvest in the area from Sept. 16 to Oct. 13, and will again from Dec. 2 to Dec. 15 this year, the province's annual hunting guide says.

Williams said it is not Manitoba's or the Wildlife Federation's place "to tell the sovereign nation of Pimicikamak how to proceed."

"They have a sovereign right under our rules to do so," he said Wednesday.

Pimicikamak would have proceeded with a lawsuit if it were trying to prove Aboriginal title to the land in question, he said.

"For an infringement case with a proven right, we just have to get over a fairly minimal hurdle that it is not insignificant."

The stories about fewer and fewer moose sightings in Pimicikamak's traditional territory that were shared to the court by the community's elders and Chief David Monias stress the need for an injunction, he said.

"They don't share these narratives from elders or land users lightly, and when they share them, they are truthful to the best of their knowledge," he said.

"That is the best evidence you have before you, of the concern that our clients have, of the infringement of the right, and of why an injunction is necessary."

Decision 'made in bad faith'

The Manitoba Wildlife Federation also took the province to court over the July 11 decision, and applied for a judicial review that asks the court for a declaration calling it unlawful.

Jonathan Andrews, a lawyer for the federation, alleged Moses's decision was "unreasonable, unfair and made in bad faith," arguing the administrative reasoning behind it was unlawful, as the federation sent a letter raising concerns about the decision days before it was announced.

But Koch said a July 9 briefing note shows that Moses made the licensing decision on June 28, and "we don't know if the July 8 letter was shown to the minister before July 9." That is not an indication of bad faith, but "a function of bureaucracy," he said.

Andrews said the federation agrees that the province met its duty to consult with Pimicikamak, calling the province's actions "admirable," but argued the government did more than what was required after it "brought down the hammer" with the 75 per cent reduction.

The federation's legal team has also asked Bowman to offer guidance to the government on how it should make future wildlife management decisions.

Koch said the courts should not dictate provincial policy, but the province would consider any advice from the courts in the future.

He said the positions of both Pimicikamak and the Manitoba Wildlife Federation "demonstrate the inherent challenge that governments face when managing a finite resource."

He argued the province couldn't make a licensing decision with "scientific precision," and there isn't "necessarily a correct or right decision" that the government could have made.

Marcia Arlt, the director of Manitoba's wildlife branch, acknowledged during cross-examination that the province has limited resources to stay up to date on the moose population of every game hunting area.

She said moose populations face immense pressures beyond those posed by hunters, such as climate change, growing cities and human encroachment on moose habitats, and felt that the 75 per cent reduction would reduce pressure, Koch said.

Koch asked Bowman to dismiss both applications, but to dismiss Pimicikamak's case without prejudice so the First Nation could potentially pursue a lawsuit instead, because while both groups have an interest in Manitoba wildlife, they are not equal, as First Nations people have recognized treaty rights to hunt.

Manitoba's legal team also put forth an alternative case, arguing that the Crown's constitutional obligation to ensure that First Nations people have the right of top priority to hunt, fish, trap and gather for food does not guarantee Pimicikamak's right to hunt for moose.

"The right in question is to hunt for food. It's not species-specific," said lawyer Deborah Carlson.

The province also hasn't infringed on Pimicikamak's constitutional right to hunt in their preferred means, as that preference refers to a method of hunting or weapon of choice, and not a specific species or geographical location, she said.

Jeremy McKay, a lawyer representing Pimicikamak, said Indigenous people have seasonal diets, and case law has shown that Manitoba must bring evidence of other species, areas or methods for the First Nation to meet their food needs.

"That's their burden. They must establish that, and they haven't in this case," he said.

He said the province did not meet its duty to consult Pimicikamak on the moose licensing decision, because it required "mutual understanding."

Bowman acknowledged the complexities of the case. He said the concerns and submissions of all parties were heard and will be carefully considered.

"The importance of this matter is certainly appreciated by the court," he said.