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.

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.