Area of Law: Indigenous / Aboriginal Law
Answer # 0655
Hunting, fishing and trapping rightsRegion: Ontario Answer # 0655
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
What are Aboriginal Rights?
Aboriginal and treaty rights belonging to the Aboriginal people of Canada are collective rights, protected under Section 35 of the Constitution.
Section 35 states:
“(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “Aboriginal Peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”
As per the Act, if the government enacts a law that prevents Aboriginal people from carrying on a certain activity or practice that is integral and distinctive to their culture, such as hunting or fishing in a particular area, they may bring a court action against the government, on the grounds that the law infringes on Aboriginal or treaty rights.
Although Aboriginal rights are not defined in s. 35 of the Constitution Act, they can include:
- Aboriginal title (ownership rights to lands)
- rights to occupy and use lands and resources, such as hunting and fishing rights
- self-government rights
- cultural and social rights
It should be noted that Indigenous rights under Section 35 vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures.
The Supreme Court of Canada, in the case of R. v. Van der Peet determined that an activity or practice is an Aboriginal right if it was an “element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”. In this case, the appellant, Dorothy Van der Peet, was charged with the offence of selling fish that was caught under an Indian food fish license. She argued that selling fish was an Aboriginal right. The Court found that exchanging fish for money or other goods was not a central and defining feature of the appellant’s society.
In this decision, the Court gave guidance on what constitutes an Aboriginal right. The practice must:
- be of central significance to the group,
- have existed prior to the arrival of Europeans in North America (not merely before Crown sovereignty), and
- have continued to the present day.
In addition, the practice must be shown to be distinctive. To show that the practice is distinctive, or a distinctive part of that culture, the claimant must show that “this tradition or custom makes the culture what it is, not that the practice, custom or tradition is different from the practices, customs or traditions of another culture.” For example, in a previous case, R.v.Sparrow, about the Musqueam right to fish for food, the activity of fishing for food is clearly common to many people. However, fishing for food made the Musqueam culture what it is, and is therefore was a distinctive part of that culture.
What is a Treaty Right?
Treaties are agreements made between the Government of Canada, Indigenous groups and often provinces and territories that define ongoing rights and obligations on all sides. Treaty rights are the rights that are agreed upon and mentioned in the treaty. It is important to understand that Treaty rights are specific to each individual group. An example of a recognized treaty in Canada is the Peace and Friendship Treaty.
There were many treaties made between Canada and the Aboriginals. Many of the treaties indicate that the Aboriginal people surrendered their title to large tracts of land, in exchange for:
- monetary payments,
- rights to hunt and fish off the reserve,
- health care, and
- education benefits.
These treaties were numbered, so they are often referred to as numbered treaties. Many of these provided for hunting and fishing rights on the surrendered lands. However, these rights are subject to regulations and the taking up of the lands for settlement or other reasons.
Although not all treaties are identical, there are common topics such as:
- reserve lands
- one-time benefits (farming equipment and animals, ammunition, clothing, etc.)
- annual payments (annuities)
- hunting and fishing rights
Historic treaties have only addressed a portion of Aboriginal rights to land across Canada. Land and resource-related negotiations are still underway in parts of the country where treaties were never signed.
The modern treaty era began in 1973 after the Supreme Court of Canada decision — Calder et al. v. Attorney-General of British Columbia — which recognized Aboriginal rights for the first time. This decision led to the development of the Comprehensive Land Claims Policy and the first modern treaty, the James Bay and Northern Québec Agreement signed in 1975.
Treaty and Aboriginal rights versus provincial laws
Aboriginal and treaty rights issues occur when there is an Aboriginal and/or Treaty right being infringed. Often, the Government of Canada will enact a law that makes the Aboriginal and/or Treaty right no longer viable.
For example, the government may enact a law that prevents Aboriginal people from carrying on a certain activity or practice that is integral and distinctive to their culture, such as hunting or fishing in a particular area. In such cases, the people affected may bring a court action against the government, on the grounds that the law infringes their Aboriginal or treaty rights.
Bringing an action or claim with respect to an Aboriginal or Treaty Right must bear in mind the integral and distinctive test that has risen from previous cases. Case law in support of incidental rights to date has focused on:
- rights of reasonable access to the traditional hunting or fishing ground with appropriate equipment transported in a safe manner; and
- a right to build a shelter — a cabin, as a general rule — in a provincial park or on other Crown land, without a permit, for use in expeditionary-style hunting, where expeditionary-style hunting is traditional to the right-bearing community. But this right does not include cabins that individuals build purely for their personal use, without a connection to the exercise of a harvesting right and without making the cabin available as shelter to other members of the “right-bearing community.”
When a decision is being made as to what is reasonably incidental to a treaty right, such as hunting, the Court has said:
“In order to determine what is reasonably incidental to a treaty right to hunt, the reasonable person must examine the historical and contemporary practice of that specific treaty right by the aboriginal group in question to see how the treaty right has been and continues to be exercised. That which is reasonably incidental is something which allows the claimant to exercise the right in the manner that his or her ancestors did taking into account acceptable modern developments or unforeseen alterations in the right. The question is whether the activity asserted as being reasonably incidental is in fact incidental to an actually practiced treaty right to hunt. The inquiry is largely a factual and historical one. Its focus is not upon the abstract question of whether a particular activity is ‘essential’ in order for hunting to be possible but rather upon the concrete question of whether the activity was understood in the past and is understood today as significantly connected to hunting. Incidental activities are not only those which are essential, or integral, but include, more broadly, activities which are meaningfully related or linked.”
Crown-Indigenous Relations and Northern Affairs Canada and the Duty to Consult
The Government of Canada has a duty to consult, and where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. This approach ensures that Aboriginal groups are appropriately consulted when the federal government considers action that may have an adverse effect on potential or established Aboriginal or treaty rights.
The Government of Canada’s duty to consult with Aboriginal groups was affirmed by the Supreme Court of Canada in the following decisions:
The duty to consult is an important part of the federal government’s activities, including for regulatory project approvals, licensing and authorization of permits, operational decisions, policy development, negotiations and more.
The duty to consult includes:
- providing policy direction on consultation practices,
- sharing information on Aboriginal groups, agreements, claims, and more through the Aboriginal and Treaty Rights Information System (ATRIS) and the Consultation Information Service (CIS),
- developing partnerships with Aboriginal groups and organizations,
- supporting coordination with provinces, territories and industry partners,
- delivering training and guidelines to federal officials on the duty to consult
For more information, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.
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