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Do Firearms Provisions Protect Treaty Hunting Rights?

SASKATCHEWAN INDIAN      JULY-AUGUST 1994      v23 n06 p11  
Parliament's recent amendments of the Criminal Code firearms revisions have raised the issue of their effect on treaty Indians, particularly hunting rights.

The Province of Saskatchewan is responsible for administering the federal law. At the same time, it recognizes the fundamental importance of Treaty hunting rights, and wishes to administer the federal provisions in a way that is consistent with treaty rights. The federal provisions exempt subsistence hunters from some of the key provisions and while these exemptions do not expressly apply to treaty hunting rights, they should address many of the concerns.

The basic principle of the firearms provision is that to acquire a firearm, a person must have a Firearms Acquisition Certificate (F.A.C.).

Individuals who already have firearms do not need an F.A.C. unless they wish to acquire additional firearms. After September 1, 1994, an F.A.C. can only be obtained by taking an approved course or by being certified by a firearms officer. Only those owning firearms since January 1, 1979 are eligible for certification.

the fee is waived for "a person who requires a firearm to hunt or trap in order to sustain himself or his family

It is an offence to lend a firearm to a person who does not produce an F.A.C. However, this does not apply to the loan of a firearm "to a person who requires a firearm to hunt or trap in order to sustain himself or his family".

If a person wishes to acquire firearm permanently, rather than borrowing it from someone else, an F.A.C. is required. However, the fee is waived for "a person who requires a firearm to hunt or trap in order to sustain himself or is family".

Normally, an F.A.C. will not be issued to a person under 18. However, a local firearms officer can issue a possession permit to a person under 18 "who hunts or traps as a way of life", and who "needs to hunt or trap in order to sustain the person or the person's family.

Though the firearm provisions do not expressly state exemption for Treaty Indians, the exemptions are tied to the activities of the individual who must "hunt and trap in order to sustain himself or his family" and therefore a Treaty Indian exercising his or her Treaty hunting rights for subsistence purposes will come within the exemption. However, there may be some uncertainty regarding the interpretation of "sustain". Does it mean someone whose full-time activity is trapping or hunting, or does it also include individuals who rely on trapping and hunting to supplement income and food from other resources? This is an issue which may be left to the courts to settle. However, the Province favours a broad interpretation of "sustain".

Another point which has been raised is whether the firearms provisions violate Treaty rights by restricting access to hunting weapons. The Province considers these provisions to be safety-oriented, and therefore should not be considered to infringe on Treaty rights.

Regarding safety courses, the Attorney General is responsible for approving safety courses. The Department of Justice has decided that it will not be providing courses directly, but instead will approve courses taught by the Saskatchewan Association of Firearms Education (S.A.F.E.) as long as they meet Criminal Code requirements which are that the course must deal, with the safe handling, use of and laws relating to firearms.

The Department would be pleased to see First Nations involved in teaching firearms safety, and is willing to train First Nations individuals to become instructors. The training could be delivered by these instructors either through S. A. F. E. or through a First Nations educational institution using course material that meets with Criminal Code requirements.