Aboriginal Hunting and Fishing Rights

Rights to hunt and fish asserted by Aboriginal people in Canada have been finding themselves, more and more, in the hands of the judiciary. In British Columbia, two members of the Heiltsuk Band established an Aboriginal right to fish and sell herring spawn on kelp (R. v. Gladstone). In Saskatchewan, a Cree man established a treaty right to cut down timber and build a cabin from which to hunt and fish in a provincial park (R. v. Sundown). In Ontario, two Métis people established an Aboriginal right to hunt for food near Sault Ste. Marie (R. v. Powley). With each different Aboriginal group and each different province, there is the potential that the nature of Aboriginal or treaty rights will vary.

While the types of Aboriginal rights may vary, the reason for Aboriginal rights does not. Aboriginal people have Aboriginal rights because they existed in Canada before Europeans arrived here (in the case of First Nations people) or before Europeans took control of Métis territories (in the case of the Métis). The test to establish an Aboriginal right is to show that an activity, like hunting or fishing for food or commercial purposes, was an integral part of the claimant's Aboriginal culture at the time of contact or effective control and is a question of fact.

There are two types of Aboriginal rights to hunt and fish. First, there is the right to hunt and fish for food which has been accepted as integral to Aboriginal culture. The rights of First Nations and their members to hunt and fish domestically have been long accepted, but it was only recently that Métis domestic hunting and fishing rights were recognized by the Supreme Court (Powley). Second, there are commercial rights. It has proven more difficult for First Nations people to establish an Aboriginal right to hunt or fish because courts have generally held that commercial trading of fish and game generally emerged after, not before, Europeans contact (see R. v. Van der Peet). No case has considered a claim by a Métis group to fish or hunt commercially.

Like Aboriginal rights, treaty rights may confer upon an Aboriginal group the right to hunt or fish for domestic or commercial purposes. The basis for a treaty right is an agreement between an Aboriginal group and the Crown. In the Maritimes, there are "peace and friendship" treaties wherein Aboriginal people agreed to maintain peaceful relations with Europeans. The most famous peace and friendship treaty is the one seen in R. v. Marshall, where Donald Marshall, a Mi'kmaq man, established a treaty right to make a moderate livelihood from catching and selling eel. In Ontario and the Prairie provinces, treaties are more prevalent with First Nations while the Métis assert Aboriginal rights.

In the Prairie provinces, First Nations entered into treaties which ceded their Aboriginal title and related rights to the Crown in return for specified treaty rights. The extent of those surrenders is a contentious issue and subject to different interpretations. Also in those three provinces, the Natural Resources Transfer Agreements (NRTAs) effectively extinguished commercial treaty rights in favour of a broad right to hunt and fish for food on "all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access" (R. v. Badger). Under the Constitution Act, 1930, the NRTAs were made part of Canada's constitution.

Aboriginal or treaty rights may be extinguished by agreement between Canada and an Aboriginal group (as is the case with the surrender treaties of the Prairies). Before 1982, the government of Canada could unilaterally extinguish Aboriginal or treaty rights by legislation, although the test today for proving that such extinguishment occurred is high. The Constitution Act, 1982 now protects such rights from unilateral extinguishment.

Further, where the Crown (either federal or provincial) is making a decision which might have the effect of infringing an Aboriginal or treaty right there is an obligation on the Crown to consult with the rights holder. Ultimately, if such a right would be infringed, the Crown cannot proceed without accommodation and justification. The Crown is expected to proceed in a way that creates the least infringement necessary, and it is potentially subject to provide compensation for any loss suffered as the result of such infringement. This is an important issue for resource developers in Canada who are relying on Crown allocations or decisions, which might cause an infringement.

The recent Supreme Court of Canada decisions in the Haida Nation v. British Columbia and the Taku River v. British Columbia cases have confirmed that, while the special constitutional duty of the Crown to Aboriginal peoples cannot be fulfilled by developers, it is important for developers to understand that early and meaningful consultation with potentially affected Aboriginal peoples is an essential element in any best practice planning model.