After getting criticized from all sides over a moose-hunting decision made two years ago, Manitoba’s lawyers maintain the licence cut in some areas was the “only fair” choice to make.

In July 2024, Jamie Moses, then the province’s minister of natural resources, drew criticism after he slashed the number of moose draw hunting licences for residents from 400 to 100 across four of Manitoba’s 62 game-hunting areas.

The cut meant about 200 Manitoba residents, who only selected one of the four affected hunting areas as their preferred location in moose draw applications, missed out on a licence, court heard Wednesday.

Pimicikamak Cree Nation and the Manitoba Wildlife Federation both challenged the cut and then appealed when those challenges were dismissed by Court of King’s Bench Justice Brian Bowman last year.

A panel of three chief justices with the Court of Appeal heard both appeals, and the province’s response, in a two-day hearing that finished Thursday.

The case highlights the “ongoing tension” between rights-based and licensed hunters, court heard.

Pimicikamak’s lawyers previously argued for an injunction against the moose-hunting licences, alleging the province’s decision to issue them infringed on its rights under provincial laws, Treaty 5 and the Northern Flood Agreement.

That agreement, signed in 1977 between a group of northern Manitoba First Nations, the federal and provincial governments and Manitoba Hydro, states the province must prioritize Indigenous harvesters on Pimicikamak’s traditional territory.

Pimicikamak argued the licensing decision did not meet the Crown’s legal obligation to consult and, where appropriate, accommodate Indigenous people before making decisions that might infringe on their rights.

The province’s lawyers argued Thursday that the cut was a “transparent and justifiable” decision that met the Crown’s duty to consult.

They also questioned Pimicikamak’s assertion that it has a right to hunt moose.

“We dispute that there’s a constitutionally protected right to hunt moose,” said Joel Myskiw, a lawyer for the province.

Chief Justice Diana Cameron then asked whether that means Pimicikamak would be left to “eat squirrels” if there were no moose left.

While the province “absolutely agrees that there’s a constitutionally protected right” for First Nations to hunt for food, and that Pimicikamak has top priority to hunt for food on their traditional territories, Myskiw said there has never been a right to hunt moose specifically.

The wildlife federation is seeking court declarations that the 2024 cut was unreasonable, unlawful and procedurally unfair, as the province did not seek input from the organization or any of the hunters who applied for licences before making the cut

Cabinet minister had ‘the last word’

Jim Koch, another lawyer for the province, said Moses had “the last word” on the matter.

“The government wasn’t legally obliged to talk to” licensed hunters, he said Thursday.

Moses also “retained the discretion to make a final decision up until he communicated it” to the hunters who applied for the affected moose licences, the lawyer said.

Koch rejected the wildlife federation’s argument that “something more than zero was required” in terms of consultation, arguing it invites “a never-ending circle of consultation” that does not align with the duty to consult.

The draw-based system meant everyone’s licence was “in peril” once the decision to cut licences was made, he said.

The 2024 cut “likely is the only fair way to have done this,” Koch said. 

Moses was aware of the implications of the licence cut and that it would impact licensed hunters and outfitters in a region with already limited opportunities for licensed big game hunting, the lawyer said.

While both Pimicikamak and the wildlife federation were both “unhappy with the minister’s decision,” Koch said that “tends to be the case for many matters” of public policy.

Koch also rejected Pimcikamak’s argument that the province’s failure to provide 2014 aerial survey results to the First Nation only days before the licensing decision was finalized was a breach of the duty to consult.

If the court were to agree that the province breached the duty to consult, Pimicikamak seeks a court declaration that there “has been an error in law, and guidance from this court on what is the applicable law,” Jeremy McKay, a lawyer for the First Nation, told the court Thursday.

Bowman’s decision said that between April and June 2024, Moses met with members of Pimicikamak and Manitoba Keewatinowi Okimakanak, a northern First Nations advocacy organization, to hear their concerns about moose licences related to food security and conservation.

He ruled that the province “adequately discharged” the Crown’s duty to consult and that the province’s licensing cut last year “clearly accommodated” Pimicikamak’s concerns about dwindling moose populations.

Bowman also said Pimicikamak’s application was “not the proper forum in which to make a determination of the existence or scope of Aboriginal or treaty rights, nor is it the proper forum to determine whether the asserted treaty rights have been unjustifiably infringed.”

The First Nation alleged Bowman wrongly concluded some of the facts in its injunction request were in dispute and that he incorrectly interpreted a court rule when he said Pimicikamak’s application would require a full trial via a fresh statement of claim.

The province’s lawyers agreed with Bowman’s conclusion.

The First Nation’s food needs, and its asserted right to hunt for moose specifically, were among the key facts in dispute, Myskiw said.

“This is a complicated matter that may not have been right for the expedited procedure.”

The chief justices reserved their decision until a later date.