Hunting and Fishing Rights Review of Key Legal Principles Briefing Note
Note: All cases must be viewed in their entirety and facts in each case vary, therefore so do the results.
Key legal principles established in the area of hunting and fishing rights cases summary
-Section 35 protects aboriginal rights; however, these rights can be infringed by Government when certain actions are considered justified by the courts. A common justification example includes regulations or laws that are directed to conservation of a species.
- There was no Aboriginal right to a commercial fishery, nor any fiduciary duty on the part of the Crown to provide access to a commercial fishery. [Lax Kw’alaams]
- Fishing for food and ceremonial purposes was integral to the culture, but the exchange (sale) of fish was merely incidental and therefore not protected by s.35. [Van der Peet]
- However, in Gladstone, the court found, based on the evidence, that large scale trade of herring spawn on kelp was a central, significant and defining feature of the culture of the Heiltsuk and the Fisheries Act infringed the right.
- NTC Smokehouse-the aboriginal right to sell fish was not established on a large scale because the exchange of fish, when taking place apart from the occasion to which such an exchange was incidental, cannot, even if that occasion was an integral part of the aboriginal society in question, constitute an aboriginal right.
- V. Jones- commercial fishing for band sustenance (as opposed to profit) was protected as an aboriginal or treaty right. Evidence showed that commercial fishing was a community based, collective activity directed to the subsistence of the group as a whole.
Exercise on another Nation’s territory-R v. Jack- The aboriginal right to fish includes the right to invite other kin from other Bands to fish. (same Nation).
Exercise by non-aboriginal-Aboriginal fishing rights are held by a collective and by the individuals who make up that collective. Aboriginal rights may not be exercised by non-Aboriginal persons. An Aboriginal person did not have the right to appoint her non-Aboriginal husband to exercise her fishing rights. [Pike]
However, in a lower court decision, R. v. Cunningham, the court acquitted the non-aboriginal husband for fishing without a license, as he was helping his wife exercise a constitutional right and was entitled to assist her to minimize her exposure to danger.
-Aboriginal title was one manifestation of the doctrine of aboriginal rights. Therefore, it is not necessary to establish aboriginal title in order to assert aboriginal rights. [Adams]
-Aboriginal rights to fish include:
- the right to determine who within the band will be the recipients of the fish for ultimate consumption;
- the right to select the purpose for which the fish will be used (food, ceremonial)
- the right to fish for steelhead;
- the right to choose the period of time to fish in the river;
- the right to determine when fishing will occur and the method and manner of fishing.
(Crown did not provide evidence in this case that justified the infringements) [Nikal]
-The terms, “existing aboriginal rights” within s.35, must be interpreted flexibly so as to permit their evolution over time. The phrase does not “freeze” the right in time. [Sparrow]
-Under an Aboriginal Communal Fishing license, aboriginal people could fish for food when non-aboriginals could not. This restriction was challenged and the court concluded that the Minister made a valid decision under the Act and the court would not interfere with that decision. The court cannot turn a political choice into an adjudicative decision in this case. [Huovinen]
Hunting-R. v. Alphonse-The shooting of a deer on unoccupied, unfenced and uncultivated private land, although contrary to the Wildlife Act, was accomplished pursuant to the exercise of an unextinguished aboriginal right.
Hunting-R. v. Quipp-two members of the Sto:lo Nation were charged after shooting a cow elk closed season. They were hunting, not on Sto:lo lands, but on the territory of the Thompson or Okanagan First Nations. The accused were convicted because they did not show that they had Aboriginal rights to hunt in that territory without prior permission from those Nations.
- v. Duguay-convicted of selling fish and game contrary to provincial Act. His aboriginal rights argument was rejected by the courts because he had not produced enough evidence to establish that it was a distinct cultural practice of the Algonquins.
- v. Morris-Two members of Tsartlip First Nation was acquitted of hunting at night. While the case arose from a breach of treaty rights, the SCC remarked that a blanket prohibition on night hunting throughout BC was going “overboard”. Not a sound basis for limiting a treaty right.
However, in R. v. Seward, the accused was convicted for hunting at night as he did not establish enough evidence that the members of the Band historically hunted at night.
- v. Stump-Larry Stump and Charles Elkins were charged with night hunting. The judge found that the Chilcotin Bad had an aboriginal right to night hunt which was infringed by Act. However, judge found that safety concerns provided justification.
- v. Pariseau-Algonquins charged with hunting at night. Court found that they had right to hunt for food but that restriction imposed was justified for safety reasons.
- v. Dick-Wildlife Act requirement for possession permits for dead wildlife was of no force or effect with respect to Aboriginals.
Draft by Bonnie Leonard, Tribal Director on October 20th, 2015