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Aboriginal Hunting Rights

Although Indigenous economic activities varied widely across North America, many First Nations groups relied on hunting for a substantial part of their diet. Consequently, an Aboriginal right exists at common law which protects Aboriginal hunting rights. Such rights, which stem from prior occupation of traditional territories before the arrival of European settlers, were formally recognized by the British Crown in the Royal Proclamation of 1763, now embedded in the Canadian Constitution via Section 25 of the Constitution Act, which promises to protect Indigenous hunting grounds from incursion by European settlers. In Saskatchewan, Treaty agreements replaced Aboriginal hunting rights with more specific Treaty hunting rights. However, this unambiguous recognition of Indigenous hunting rights was modified by Numbered Treaties (Treaties 2, 4, 5, 6, 8 and 10) as well as the Natural Resources Transfer Agreement in 1930. The Treaty agreements cover the current provincial boundaries of Saskatchewan; Section 13 restricts the right to one of hunting for subsistence but not commercial purposes on all unoccupied Crown lands.

Canadian courts have protected the Crown’s authority to infringe Aboriginal hunting rights for purposes of safety and conservation. However, such infringements must be justified by the Crown. For example, Aboriginal hunting is not allowed on or near public highways, and this restriction is allowed as a justifiable infringement of that right. Meanwhile, Aboriginal hunters retain the right of first allocation should Conservation concerns arise.

It took significantly longer for Métis hunting rights to be won in the courts. The northern district of Saskatchewan recognized Métis hunting rights as early as 1996 as a result of the Morin and Daigneault decisions. An economic test determined whether the hunter in question lived a “traditional lifestyle”; a Métis hunter who was a resident of the north was deemed to have an Aboriginal right to hunt. The 2003 decision of the Supreme Court of Canada in the Powley case has expanded this right, though its implications for Saskatchewan Métis have yet to be defined. However, it is clear that certain conditions will apply before Métis individuals will be able to obtain an Aboriginal hunting right. These criteria include self-identification, community acceptance, and links to a historical Métis community. Furthermore, unlike hunting rights for Status Indians, the Métis hunting right will be site-specific, which will restrict its use to the traditional territory of that individual’s historic Métis community.

Brock Pitawanakwat

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