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Treaty Hunting Rights...

David Knoll

The fall hunting season is just beginning, and Indian hunters will be faced with questions as to what their hunting rights are. Conservation officers, faced with enforcing provisions under The Wildlife Act and Fisheries Act and Migratory Birds Convention Act, will be closely watching the hunting and fishing activities of Indians based on what they understand the law to be in these areas. It was, therefore, thought useful to summarize what the current outside laws are on the question of Indian hunting rights, to guide Indian hunters during this hunting season.

It will be noted that the unrestricted hunting rights which Indians believe they have under treaty have been limited over the years by legislation and the courts. Therefore, the following are the hunting rights which the courts have recognized that Indians have under treaty and the Natural Resources Transfer Agreement of 1930, and which are being enforced under provisions of The Wildlife Act.

1. Indians generally do not require a licence to hunt.

2. Indians are those that are considered Indians under provisions of the Indian Act.

3. Indians can only hunt for food. If they hunt for any other purpose, they will require a licence.

4. Indians can hunt on unoccupied Crown land. Lands set aside by the Federal or Provincial governments to preserve and protect wildlife have often been considered to be occupied Crown lands.

5. Indians might have the right to hunt on occupied Crown land if non-Indians are permitted to hunt over these lands at certain seasons of the year.

6. Indians have the right to hunt by any method, even if it's by spotlight.

7. Indians cannot hunt in a dangerous or careless manner. Provincial laws will apply to prevent this type of hunting.

8. The courts have held spotlighting is hunting and Indians illegally searching for game on occupied Crown or private land could be charged.

9. Indians cannot hunt on private land, whether or not it is posted, unless:
a) they have implied or express permission;
b) they can demonstrate they had access to these lands by custom (traditional hunting lands);
c) they can demonstrate they had access to these lands by usage (traditional hunting lands).

10. Most courts have held that Indians and non-Indians cannot hunt from a public highway since it is considered to be occupied Crown land and to be used for only travelling. This includes a prohibition against spotlighting from a highway since the courts have held this to be hunting. This question is being appealed to the Supreme Court of Canada.

11. Indians might not be able to pursue a wounded deer on to private property without permission since this might be considered to be trespassing. This question is being challenged on appeal.

12. Non-Indians cannot hunt with Indians when Indian hunters are exercising their treaty hunting rights.

13. Indians exercising their treaty rights are not subject to limits as to the number of deer they shoot as long 'as they can show the deer were legitimately killed for food.

14. Some courts have held that P.F.R.A. lands are areas over which Indians can hunt.

15. Most courts have held that the provincial Wildlife Act does not apply to reserve lands.

16. Unfortunately, the courts have held that treaty Indians are subject to provisions of the Migratory Birds Convention Act. They have held that this is an Act which is based on an international treaty which Canada entered into with the United States and Mexico. Based on this the courts have held the the Migratory Birds Convention Act overrules treaty Indian hunting rights, even those rights mentioned under the Natural Resources Transfer Agreement. As a federal piece of legislation, it can be enforced anywhere where federal jurisdiction exists. This issue is being challenged in court on constitutional grounds.

The following are some important Saskatchewan court decisions over the last year dealing with Indian hunting and fishing rights.

1. In September, 1984, the Saskatchewan Court of Appeal held, in the case of R. v. Horse, that s.38(6) of The Wildlife Act restricts the right of access to private unposted lands by recognizing the common law remedy of trespass.

Treaty Hunting Rights...

David Knoll


They held, therefore, that Indian hunters have no right of access to these lands in the absence of permission, express or implied. The question of whether they had a right of access by virtue of custom or usage was not considered for the lack of evidence. This case is being appealed to the Supreme Court.

2. Also in September, 1984, the Saskatchewan Court of Appeal held, in the case of R. v. Matchee, that the fishing rights of Indians can be regulated by the Fishery Act as Treaty #6 itself empowered the Federal Government to regulate the fishing rights therein mentioned, as long as the regulation was not unreasonable. The court held the fishing regulation which prohibited snaring was not unreasonable. An appeal to the Supreme Court was dismissed.

3. In May of 1985, the Saskatchewan Court of Appeal held, in the case of R. v. Baptiste, that an Indian, while hunting with a spotlight from a highway, was guilty of the spotlighting offence under s.37 of The Wildlife Act. They held that hunting is not allowed from a public highway; that shining a light on to private property is hunting on that land; and that it is an offence to hunt on private property without permission, either express or implied or without evidence of custom or usage. Application for leave to appeal this case to the Supreme Court is being made.

4. On June 3, 1985, the Saskatchewan Court of Appeal held, in the case of R. v. Bellegarde, that it was illegal for an Indian to hunt from a road that has not customarily, or traditionally, or otherwise been used for hunting.