Canada’s Aboriginal Peoples have unique rights to practice traditional activities and customs on their ancestral lands, which often includes trapping, hunting, and fishing.
Those rights, however, are not absolute and they often end up being decided on by the justice system.
A band or community’s hunting and fishing rights will depend on whether the law defines it as an aboriginal right. This is a nebulous concept under Canadian law that is generally determined on a case-by-case basis.
Defining aboriginal rights
According to law, native communities have a distinct legal and constitutional status that includes certain unique rights protected under the Constitution Act. However, the act doesn’t specifically say what those rights are, but the courts have gradually defined the concept.
“Aboriginal rights” have come to mean traditional customs and practices of aboriginal communities on their ancestral land predating the European presence in North America.
However, it can’t just be at any aspect of their culture. In the 1996 fishing-rights case R. v. Van der Peet, the Supreme Court of Canada said the activity: “must be of central significance to the aboriginal society in question.”
Courts have also determined that aboriginal rights are site-, fact-, and group-specific. One tribe’s right to hunt or fish in one region does not mean a different one can hunt or fish elsewhere.
Given that, there are no simple summations of who can hunt or fish, where they can do it, and under what circumstances.
Cultural or commercial
Even in cases where courts affirm those rights, there are still questions of what one can do with them.
In the R. v. Van der Peet case, the Supreme Court ruled that a Sto:lō woman had the right to fish for food or ceremonial purposes, but not to sell her catch. Another case, R. v. N.T.C. Smokehouse Ltd., had a similar ruling; it acknowledged that while the tribes in question had sold fish in the past, those sales were not large or frequent enough to be considered an integral part of their culture.
Still, it that doesn’t apply to all tribes. In R. v. Gladstone in 1996, the court upheld two Heiltsuk men’s right to sell herring because that trade was a significant part of the tribe’s culture prior to European contact.
In some cases, aboriginals retain treaty rights to hunt and fish, meaning those rights are spelled out in agreements with governments. These more clearly define who can hunt and fish, when and where they can do it, and what commercial limitations may constrain the practice. In its 1999 R. v. Marshall decision, the Supreme Court upheld the eel-fishing rights delineated in a treaties between Britain and the Mi’kmaq dating back to the 1760s.
Hunting and fishing rights can cross the Canada-U.S, border
In 2017, the British Columbia Supreme Court held that Richard Desautel, an American citizen who was a member of the Sinixt people, had a right to hunt and fish on the Sinixt’s traditional territory in Canada. Desautel had been charged with hunting without a licence and hunting big game without being a British Columbia resident.
The charges were dismissed at trial, and this was upheld by the British Columbia Supreme Court. The court held that even though the Sinixt lands had been divided in 1846 between the United States and what was then a British colony, the Sinixt people retained the right to hunt and fish under s.35 of the Constitution Act, 1982. A member of the Sinixt people is entitled to exercise those rights whether he lives in Canada or the United States.
R. v. Van der Peet
R. v. Gladstone
R. v. Desautel