Saskatchewan (Dir. of Public Prosecutions) v. Marsland is a very interesting case, illuminating the jurisdictional anomalies which can occur in Canada when s. 91(24) of the Constitution Act, 1867, overbroad provincial legislation, and overzealous federal and provincial prosecutors form an unholy union and render impotent, band codes that are in place on reserves.
Jason Cody Marsland, an Albertan non-Indian, raised and sold deer to hunt farms, including one on Poundmaker Cree Nation in Saskatchewan. He was transporting five whitetail deer from Alberta to Poundmaker Cree, when he was pulled over by Saskatchewan conservation officers. At trial, Marsland was acquitted of all charges for transporting deer across provincial lines, in contravention of both The Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Both Canada and Saskatchewan appealed.
The appellate judge found that because Mr. Nordstrom, the aboriginal owner and operator of the hunt farm operation (Cree Nation Outfitter) located on a reserve, did not have a provincial license to import deer from out of province, then Marsland had no right to transport them across provincial lines to him. The catch is that it was not even possible for Nordstrom to get the license, even if he wanted to acquiesce to provincial authority, because the hunt farm was on a reserve and therefore under federal jurisdiction. Regardless, because Nordstrom did not have a license, the judge determined that he was obligated to quash Marsland’s acquittals.
What’s interesting (in a “wow, that’s %&#ed up” kind of way) is that the appellate judge recognized there were already in place, band by-laws which not only met provincial standards, but surpassed them.
15 It is not disputed that the hunt farm operation owned and operated by Mr. Nordstrom (Cree Nation Outfitters), was wholly located within the boundaries of the Poundmaker Cree Nation, in the Province of Saskatchewan. There is no dispute that Mr. Nordstrom was authorized by a registered Poundmaker Cree Nation Band Council Resolution to operate an outfitting and game farming business on reserve lands. It is also not disputed that Poundmaker Cree Nation had registered band bylaws in place for the hunt activity. The bylaws required Mr. Nordstrom’s hunt farm operation to comply with certain specifications. The learned trial judge found as a fact that Mr. Nordstrom’s hunt farm operation not only exceeded these requirements, but also complied with or exceeded the specifications required to operate a hunt farm licensed by the Province of Saskatchewan. Mr. Nordstrom, could not, however, obtain a license from the Province of Saskatchewan, as his hunt farm was on a First Nation reserve and came under federal jurisdiction.
16 The fact that Cree Nation Outfitters could not obtain a provincial license to operate a hunt farm in Saskatchewan also meant it could not obtain a provincial import license from the province, since the province only issued these licenses to provincially licensed hunt farms. Thus, hunt farm operations on First Nation reserves within Saskatchewan cannot import domestic game farm animals from outside the province if the animals are being transported through Saskatchewan to a First Nation hunt farm. It is not disputed that the Saskatchewan Environment and Resource Management takes a different position with respect to domestic game farm animals being transported through the province from outside of Saskatchewan, if the eventual destination is not a hunt farm located on a First Nations within Saskatchewan. If the hunt farm is located somewhere else in Saskatchewan, an individual could, with the proper provincial import domestic game license, transport and deliver the animals. (emphasis added).
Turtle Talk 