Aboriginal Rights (Hunting and Fishing) in Canada
Aboriginal people have always had a special, if not sacred connection to their land and resources. The land and all it contains has provided a form of subsistence and sustenance to Aboriginal people for thousands of years. Prior to the arrival of Europeans as early as the 1500s and up to the signing of the Treaties from 1870 - 1921, Aboriginal people had free reign of territorial hunting grounds in the vast land of Canada. There were no lines of demarcation and each group based their territory on their subsistent need and availability of fish and game.
In Canada, under Sec 35 of the Canadian Constitution, 1982, Aboriginal refers to Indian, Inuit, and Métis (each group will be defined by their name-Indian is a legal definition and will be used interchangeably with First Nation). In Canada, the Numbered Treaties or Post Confederation Treaties were signed between 1871-1921 with the Government of Canada and 'Indian' peoples in Alberta, Northeastern British Columbia, Saskatchewan, Manitoba, and Ontario.
Treaty and Aboriginal Rights
The Canadian Constitution of 1930 included the Natural Resources Transfer Agreement (NRTA), " that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access."[13] Additionally, Aboriginal hunting and fishing rights are protected under Section 35 of the Constitution Act, 1982 and the Indian Act (1876).
Treaty or Status Indians by right of treaty or by right of registration under the Indian Act (1876) have Aboriginal rights to hunt or fish on reserve lands designated to them. For instance, Registered Indians can hunt and fish on
"Indian Reserves, Wildlife Management Areas, Provincial Forests, areas of Provincial Parks where licenced hunting is permitted, unoccupied Crown lands, and other Crown lands where licenced hunting or trapping is permitted;
Private land with the permission of the landowner or occupant; and Federal lands, such as community pastures and the Shilo Military Range, when such lands are opened to the public for hunting, or with the permission of the Pasture Manager or Base Commander."[14]
Additionally, Registered or Status Indians do not require
Hunting or fishing licences;
They are not restricted to specific seasons;
and they are not restricted to bag limits.[15]
The special relationship that First Nation people had with their land, hunting and fishing, and environment. Each individual First Nation mandates hunting and fishing rights that are set out in the final agreement of land claims. As per their Constitution, they are responsible for creating their own hunting and fishing guidelines that can be based upon traditional forms of conservation or modelled upon an existing structure such as the Fish and Wildlife Conservation Act or a combination of both.
As with Treaties, land claim beneficiaries are restricted to hunting and fishing within their own territorial boundaries unless they have a Provincial or Territorial hunting and fishing license and follow Provincial or Territorial guidelines. First Nation people can hunt on another First Nation territory with written consent of the First Nation whose land is to be approached for hunting or fishing. This same rule applies to non-First Nation hunters and fishers who wish to hunt or fish on First Nation land settled by land claim agreement.
First Nations who hunt on their traditional territories are not restricted to bag limits or a set number of animals or fish that can be harvested providing that the game killed will be used for sustenance. It is however unlawful to hunt, kill, or capture certain animals such as musk-ox, white-tailed deer, or elk without a license.
First Nation cannot hunt game or catch fish to use their parts specifically for making arts and crafts for sale such as leather skins or jewellery but they can use parts of an animal that was killed in the process of procuring food for making arts and crafts for sale. Hunting and fishing can be done at anytime of the year to procure game for traditional uses such as Potlatches or other traditional ceremonies.
It is important to realize that being an Aboriginal person does not mean being exempt from persecution by Treaty or Land Claims when laws and guidelines set out in Fish and Wildlife Conservation Act, 1997 are broken. Certain rules and regulations apply to everyone in Canada including Aboriginal people to ensure that the conservation of all wildlife and biodiversity is protected.
Aboriginal people may not:
hunt protected wildlife for which all hunting is prohibited, such as eagles, hawks, owls and polar bears;
waste or abandon wildlife or fish;
use or possess lead shot while hunting waterfowl;
sell, trade, barter or give away fish or the meat or any part of a wild animal taken under status Indian hunting or fishing rights, except that food may be given to another status Indian person; (When you kill an animal for food you can use the non-edible parts to make traditional handicrafts for sale. However, you cannot kill an animal for the sole purpose of making items for sale)
hunt or fish for species or in areas closed to all persons for specific conservation reasons;
block more than two-thirds of a river or stream with a net or other device;
fish within 25 yards of a fish ladder or fish-way;
use nets or other methods of fishing other than angling, in stocked trout waters; transport fish in excess of a regular possession limit without a fish transportation loadslip, if the fish is going from the catch point to somewhere other than their closest residence.
Fish and Wildlife Rights (Protection) in Canada
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