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On the other side there is the argument that when the natives surrendered their lands to the white men they were given solemn promises in the treaties that they would be free to hunt as always over the lands they surrendered. Without those solemn promises the settlement of the Canadian west might have been a sad and bloody business. It would seem unfair to break those promises and take away those rights.
The fact is that those rights have steadily been whittled down as time passes. When the Indians of Alberta and Saskatchewan signed treaties in the late 1800s surrendering their lands, they insisted on keeping the right to hunt, fish and trap as before. The federal government agreed to guarantee that right but only on lands which were not taken up by settlement and "subject to such regulations as may be made from time to time by the Government of the country". The Indians worried that the government might later take away their hunting rights and had to be assured that only regulations necessary to preserve the supply of game and fish would be enacted. As the negotiations of Treaty 8 reported:
"Our Chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed...we had to solemnly assure them that only such laws as to hunting and fishing as were in the interests of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it."
In 1930 the federal government turned over Crown lands to the Provinces in Alberta, Manitoba and Saskatchewan. This was done through the Natural Resources Transfer Agreement which became part of the Canadian Constitution. Paragraph 12 of the Agreement said that:
"In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, 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 reasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access."
The Natural Resources Transfer Agreement took away all the rights promised under the treaties. Instead, paragraph 12 became the only law which guaranteed special hunting rights to Indians in the three prairie provinces. It might be helpful to read the paragraph over and try to make sense of it. For the past fifty years judges have been reading this paragraph and trying to decide what rights it gives to Indian hunters and what rights it does not give.
The first important point is that Indians can only hunt for food. The treaties had promised they could hunt in their traditional way, which was for food and for the purposes of trading game and fur with the white men. The courts have held that an Indian hunter can only hunt for food to nourish himself and his family; since 1930 if an Indian hunts for sport or commerce he is subject to the same game laws as everyone else in the province.
The second point is that an Indian hunting for food on unoccupied Crown land or other land to which he was a right of access for the purpose of hunting has much wider hunting rights than any white man. He can legally shoot any size or sex animal, he can hunt at night with lights, he can hunt in any season by any means. The only real restriction is that he must hunt in accordance with laws protecting the public safety. Courts have ruled that hunting at night with lights is not breaking the law unless it is done in an unsafe manner (eg: close to occupied buildings).
It is important to note that only natives who are Indians have this right; if a native person cannot be registered under the Indian Act then he has no special native hunting rights at all. The whole issue of special rights for some Canadians seems contrary to the guarantees of equality in the Charter of Rights and Freedoms, but the Constitution Act, 1982 s.35 affirms that aboriginal and treaty rights existing on April 12, 1982 are entrenched and cannot be taken away without a constitutional amendment (which would require the unanimous consent of all provinces after Meech Lake).
Although the rights are guaranteed by law, it is the courts which define exactly what those rights mean. For instance, an Indian will be liable to charges of trespass just like anyone else if he hunts on private land without express or implied permission. This is true whether the land is posted or not. In a recent Saskatchewan case the judge ruled that an Indian who shines a light on posted private land while night hunting is guilty of illegally hunting on that land.
If the province sets up a game preserve where no hunting is allowed to anyone then Indians have no right to hunt there even if it is in an unoccupied wilderness area. Indian hunting rights can be taken away by any Acts of the federal government; for instance, even though the Indian hunting rights are guaranteed in the Canadian constitution the courts have held that those rights are cancelled insofar as they conflict with the Migratory Birds Act.
The courts are also giving the provinces more and more authority to enact legislation affecting Indians in the province. The British North American Act made legislation in relation to Indians an exclusive power of the federal government. In the past there has been an on-going battle by Indians to keep the provinces from gaining the power to regulate them. It seems that they are losing their battle; in 1985 the Supreme Court of Canada ruled that provincial legislation which applies to everybody in the province, should also apply to Indians unless they can show that the very intention of the legislation was to single out Indians and discriminate against them. This leaves the door wide open for future provincial legislation affecting Indian rights.
In the future, we can expect to see more court cases limiting the hunting rights of Indians and more provincial laws being applied to limit Indian hunting rights.