ABSTRACT: This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states' law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. However, there may be opportunities to extend use and co-management rights to allow tribes to be involved in land use and environmental regulatory decisions. Ultimately, changes in the doctrine of indigenous usufructuary rights over time suggests that constitutional innovation, not simply incremental judicial decision-making, will be necessary if the two nations wish to address fully some of the historic grievances of indigenous people.
TABLE OF CONTENTS I. Introduction II. The American Doctrine of Off-Reservation Hunting, Fishing and Gathering Rights A. The Source of the Hunting, Fishing and Gathering Rights 1. Historical Occupation and Use 2. Federal Power B. General Principles of Interpretation 1. Reserved Rights Doctrine 2. Fiduciary Obligations and the Protective Canons of Statutory and Treaty Construction 3. Specific Interpretive Assumptions in Hunting, Fishing and Gathering Rights cases C. Territory Where Rights Are Exercised 1. Aboriginal Title 2. Ceded Territory or Territory Set Aside for Tribes for Tribal Use Outside of Reservation Boundaries D. Who May Exercise Hunting, Fishing and Gathering Rights E. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights F. Regulation and Limitations of the Right 1. Cultural Limitations, Traditional Uses and the Moderate Living Doctrine 2. State Jurisdiction over Natural Resource Use and Exercise of Right G. Extinguishment 1. Aboriginal Title 2. Treaty Rights or Statutory Agreements III. The Canadian Doctrine of Off-Reserve Hunting, Fishing and Gathering Rights A. The Source of the Hunting, Fishing and Gathering Rights 1. Historical Occupation and Use 2. Reconciliation with Common Law B. General Principles of Interpretation 1. The Purposive Approach 2. Honour of the Crown 3. Specific Interpretive Assumptions in Hunting, Fishing and Gathering Rights cases C. Who May Exercise The Rights D. Territory Where Rights Are Exercised E. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights 1. Aboriginal Title 2. Aboriginal Rights 3. Treaty Rights F. Regulation and Limitations of the Right 1. Justification Analysis 2. The Cultural Limitation on Exploitation of Usufructuary Rights 3. Extinguishment IV. Conclusion: Politics, Law and History in American and Canadian Indigenous Usufructuary Rights I. INTRODUCTION
This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. This law allows these groups to exploit the resources in a manner which is not available or is illegal for non-tribal members. Emphasizing the historical basis of this legal doctrine, the article argues that despite the differing statutory and constitutional traditions both states' law and policy towards the Native American continue to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. Nevertheless given the continued pressure on natural resources, there may be opportunities to extend use and co-management rights to include legal claims for tribes to be involved in land use and environmental regulatory decisions in order to protect usufructuary interests.
Law was crucial to the colonialist enterprise. Indeed, from the European perspective, colonialism was a legal enterprise. "The archives of Western colonialism ...," Robert A. Williams writes, " ... reveal a profusion of laws that were drafted, enacted, obeyed, ignored, or defied in pursuit of Europe's will to empire." (1) Law "gave the Anglophone a way of seeing aboriginal peoples both as organized groups and as individuals" and it was a key mechanism by which the colonialists dealt with the occupants of newly settled territories. (2) It was one of the means by which the settlers structured their relationships with indigenous peoples and established the basic legal instruments by which governmental authority and colonial property rights were established. Later as the colonial state established jurisdictional hegemony, the law was used to control, pacify, amalgamate and govern indigenous populations. (3)
The extension of law created new cultural and legal boundaries between the colonizer and the aboriginal communities and outlined the basis of a relationship between the aboriginal groups and the colonizers under the law of the colonizing power. This relationship has been complex and has varied across time and place but in all cases aboriginals were not simply passive victims. Rather, they were active participants in their own history. As stated by Lauren Benton "[c]onquered and colonized groups sought ... to respond to the imposition of law in ways that included accommodation, advocacy within the system, subtle delegitimation, and outright rebellion." (4) Law, and the ideology of rights and state power embedded within it, provided a way by which colonized groups could resist some of the more egregious demands of the settlers as well as enabled the colonial state to ameliorate, if state authorities so chose, some of the more brutal aspects of settler interaction with indigenous peoples. (5)
It is from this interaction that indigenous peoples retain, albeit in truncated form, usufructuary hunting, fishing, and gathering rights in a manner that would otherwise be prohibited by applicable law. These rights are either reserved by or derived from treaties, common law aboriginal title or common law aboriginal rights, or are based on the recognition of customary hunting, fishing and gathering practices under statute. Depending on the legal system and the type of use, these rights have been called "common law aboriginal rights," "usufructuary rights," "off-reservation rights," "reserved rights," "unextinguished rights," "inherent rights," "non-territorial aboriginal title" and "customary rights." They have been analogized to "profits a prendre," access rights" or easements by the courts. (6) The rights are non-territorial in the sense that they do not derive from, and are independent of, any present-day ownership interest in the land but rather arise from historical occupation and use of particular lands and waters. They can include not only the right to use resources for personal sustenance or religious purposes but also may provide some insulation from governmental regulation, a right to a specific share of the harvested resource, as well as a right to preserve the resource from activities that might damage continued use. (7) Occasionally the use rights can include commercial exploitation.
Disputes between aboriginal peoples and states over the definition, allocation and use of natural resources are often the core of the indigenous-state relationship and have rarely been settled simply and amicably. The disputes over usufructary rights energize many politically potent interest groups as well as implicate fundamental social values. Hunting and fishing are important industries in each country. Employment in many areas where the rights are asserted is often specifically geared to tourism or extractive industries. Naturally, lumbering, ranching and extractive industries are concerned about what impact the potential aboriginal uses (or an aboriginal veto over their use) would have on their activities. Environmentalists doubt the ability of governments and aboriginal groups to effectively manage the resource. At the same time, other non-aboriginal groups complain that recognition of additional use rights is discriminatory, racist and/or violates their equal rights. Private landowners complain about the erosion of private property rights. States and provinces complain about the extension of national and judicial power into areas historically subject to their control or about the inability of aboriginal groups to regulate their own activities, thus restricting the opportunities of non-aboriginals to use the resources and as well as overexploiting them. Local governments likewise resent the intrusion by courts and other levels of government into their jurisdiction and local area. All levels of government complain about the security, ancillary enforcement and management costs which arise during the disputes or where indigenous use rights have been recognized.
A further complication is that the nature of the resources and interests make it difficult for the parties to compromise. At a basic level, access to natural resources is about aboriginal poverty and food but usually indigenous struggles to gain resources and territory are intertwined with claims for sovereignty, autonomy, cultural recognition and the redress of historical grievances. These are objectives that are not necessarily related to a particular resource use for subsistence, religious or economic purposes. Often indigenous groups are unwilling to separate self-government claims from claims of interest in property because they do not think of hunting, fishing and gathering in terms of simple natural resource usage. In addition, the issues often involve disputes within and among the indigenous groups themselves concerning the appropriateness of various groups to use the resources in a particular area. At the same time, the resources in question are often perceived, rightly or not, as being too limited...