5 things you might not know about Indigenous hunting and fishing rights

Hunters and Gatherers is a series looking at hunting and fishing in northern Ontario, how Indigenous rights can divide people, how some northerners find ways to share the resources and what sharing the land means for reconciliation.

Indigenous hunting and fishing rights are often described as being "universal" but they are a lot more complicated than that. Here we take a look at some of the things you might know about these rights that are often mentioned, but rarely explained.

Hunters and fishers have to honour the treaties

Indigenous hunting and fishing rights are treaty rights, contained in the treaties signed between the government of Canada and First Nations leaders and then enshrined in the Constitution in 1982.

In northeastern Ontario, the three main treaties are the Robinson-Huron and Robinson-Superior Treaties of 1850 and Treaty 9 from 1905.

So, an Indigenous person only has the right to hunt and fish in their treaty area and while they are generally understood geographically, there are no firm boundaries.

"There isn't really a physical or geographic boundary somewhere in the bush that says once you walk past this maple tree or jackpine, you're not in Robinson-Superior," says Sudbury-based Indigenous lawyer Martin Bayer.

While many First Nations people make sure to bring their status card when they go hunting or fishing, it doesn't actually prove they have a right to harvest in that area.

"That actually isn't the official document to prove you have a treaty right. And as of yet, there isn't really an official document. Usually the status card is sufficient evidence for a conservation officer not to interfere with a person's right to fish," says Fred Bellefeuille, the legal counsel for the Anishnabek Nation, also known as the Union of Ontario Indians.

"A lot of it depends on the discretion of the conservation officer."

But Indigenous people can hunt outside of their treaty area if they have something called a Shipman letter.

It's named after a court case from the early 2000s when a family from Walpole Island First Nation in southern Ontario was charged for hunting moose near Wawa and found out after the fact that they would have had the permission of the nearby Michipicoten First Nation.

Now, visiting hunters and fishermen can be issued letters by a first nation that act as a license, even laying out what animals they are allowed to harvest and when.

Traditional rights also work within traditional territory

A second way the Constitution protects Indigenous hunting and fishing rights is by declaring them an "Aboriginal right" which the Ontario government defines as being carried out within a first nation's traditional territory. 

This is even less geographcially defined than treaty rights.

David Critchlow, an enforcement specialist with the Ministry of Natural Resources and Forestry, sits on an internal committee that evaluates Indigenous hunting requests.

"It's not always black and white. We don't know. Nobody mapped traditional areas. It's based on the best information we have. We talk to the communities to find out what they claim their traditional areas are and we make judgements based on that," says Critchlow.

He says some of these claims start out as "Aboriginal violation reports" filed by conservation officers who encounter Indigenous people claiming traditional rights. Critchlow says they handle between 60 and 80 across the province every year.

Hunting at night not an automatic right

The Morris-Olsen decision from British Columbia in 2006 affirmed the right for Indigenous people to hunt at night, also known as "spotlighting."

Critchlow with the MNRF says a person needs to prove through historical evidence that their community has a tradition of hunting at night.

They also have to ensure the safety of the public, which Critchlow says usually means hunting in a remote area. He remembers a case within city limits of Thunder Bay, where charges stuck against a man who otherwise would have had the right to hunt at night.

While in neighbouring Manitoba, night hunting is such a flashpoint issue that the premier has predicted it could cause a "race war" it hasn't been on the public radar much in Ontario.

Critchlow says the ministry deals with about 50 night hunting cases a year, not all of them involving Indigenous people.

Rights are confirmed by the Constitution and clarified by the courts

While the rights are enshrined a couple different ways in the Constitution, over the past few decades a pattern has been set out where they are clarified by the courts.

Typically, an Indigenous hunter or fishermen is charged, then challenges the charges at a local level and then over years of court battles eventually leads to a judgement that sets a precedent and lays out the new rules.

This is how everything from Metis rights to hunting at night has been decided.

"The courts have said the rights were never meant to be frozen in time," says Sudbury-based Indigenous lawyer Martin Bayer.

He says in recent years it's been "little things" like the tradition of building a temporary structure while hunting that's been infringed on by conservation officers, but says it's very difficult to discuss those conflicts with local government officials and it's up to Indigenous people to decide if they want to spend the time and money to take it before a judge.

"It seems like only when you get to that point that the true negotiations and discussions take place in order to come up with a mutually beneficial resolution," says Bayer.

The government can ban Indigenous people from hunting and fishing

The key court decision on Indigenous rights is the Sparrow decision from 1990, based on a net fishing case from British Columbia.

The court ruled that governments have the power to declare moratoriums on hunting and fishing of specific species in specific areas that would also include banning Indigenous hunters and fishers.

Mark Ryckman, senior wildlife biologist at the Ontario Federation of Anglers and Hunters, says the court requires this to be done in the name of conservation and only after certain harvesting thresholds have been met.

But it is very rare to see it used.

"I think it should be used a lot more often," says Ryckman. 

"Because those conservation thresholds are not well defined, there's quite a bit of hesitation on the government's part to impose something like that and then lose a lengthy and costly court battle."