THE CANADIAN DOCTRINE OF OFF-RESERVE HUNTING, FISHING AND GATHERING RIGHTS
The Marshall Decision is representative of the current understanding of the Doctrine of aboriginal hunting, fishing and gathering rights in Canada. The doctrine is an exegesis of precedent (Canadian, provincial, American, U.K., and other Commonwealth sources); federal and provincial statute and policy; colonial law and policy; as well as a judicial understanding of the historical context of aboriginal interactions with the imperial and colonial state.
As mentioned above, the existence of these rights had never been denied either in the Dominion of Canada or in the colonies prior to Confederation:
The right of Indians to hunt and fish for food on unoccupied Crown lands has always been recognized in Canada in the early days as an incident of their "ownership" of the land, and later by the treaties by which the Indians gave up their ownership right in these lands. (184)
In the first few decades of settlement, given the large land area and low European population there was little impetus for any regulation of hunting, fishing and gathering activities--aboriginal or otherwise. It was assumed that the aboriginals exercised common law rights on Crown lands and/or treaty rights to hunt, fish, and gather along with settlers but such activity was part of the "general liberty accorded to all of the King's subjects rather than the recognition of a special right enjoyed by aboriginal peoples." (185) At the same time, it was a governmental policy that the tribes would continue to harvest food from Crown land until it was developed, a right that might otherwise not be available to other citizens. (186) As stated by the Supreme Court of Canada recently referring to lands surrendered in 1899 by Treaty 8:
The hunting, fishing and trapping rights were not solely for the benefit of First Nations people. It was in the Crown's interest to keep the aboriginal people living off the land, as the Commissioners themselves acknowledged in their Report on Treaty 8 dated September 22, 1899 (at p. 5): "We pointed out that the Government could not undertake to maintain Indians in idleness; that the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them." (187) Moreover, in some areas, such as British Columbia, tribal harvesting filled an economic niche by supplying food to settlers. (188) As jurisdiction expanded and economic development took up larger areas of territory, the presumption that aboriginals would continue to harvest for food was incorporated into statute. For example, Nova Scotia has a long history of special exemptions for aboriginals:
Pre-Confederation fish and game laws occasionally recognized that Indians were in a special position. The first game act, providing for closed seasons for partridge and black duck, 1794, c. 4, exempted "any Indian or other poor settler who shall kill any partridge or black duck ... for his own use". A like exemption respecting snipe and woodcock appeared in 1816, c. 5, and, as to trout, in 1824, c. 36. An Act of 1843, c. 19, prohibiting the use of moose snares, did not specifically exempt Indians, but seemed to presume they were excluded. It noted that the use of snares would "lead to the destruction of all the Moose ... thereby depriving the Indians and poor Settlers of one of their means of subsistence". (189) The exemptions for food harvesting or various common species have continued to the present day in various provincial and federal regulatory regimes.
Treaties agreed to both before and after Confederation also have provisions for the exercise of hunting, fishing and gathering rights. In the 18th century various treaties, such as the 1752 Treaty with the Mi'kmaq, mentioned hunting and fishing. Beginning in the early 19th century as settlement expanded the tribes in Upper Canada and what into what is now Manitoba, tribes began to make an issue of hunting and fishing in negotiations. These aboriginal concerns were settled rather perfunctorily with the Crown acknowledging the continued use of the ceded territory for hunting, fishing, and gathering purposes. There was no thought given to the legal implications of the particular wording used in the treaty nor whether the rights were reserved by the aboriginals or granted back to them by the Crown. (190)
Despite the recognition that hunting, fishing and gathering rights were important to aboriginal existence, for the most part prior to the 1960s the colonial, provincial, and Canadian courts were not willing to give clear effect to them. (191) With few exceptions, the courts resorted to narrow interpretations of treaty terms as well as technicalities and legal fictions to avoid holding for aboriginals. They refused to review Crown actions vis-a-vis the tribes while generally accepting colonial and federal supervision of them, and they sanctioned the application of provincial and federal laws in areas that had arguably been reserved by treaty. (192) Where an aboriginal common law right was found to exist, the courts, consistent with the notion that the rights existed only at the pleasure of the Crown, often found that they had been extinguished by Parliament. (193) Extinguishment by operation of law, i.e. not by treaty, was generally presumed where a statute or regulation demonstrated an intention to exercise complete dominion over the territory and activities of the band. Before the Constitution Act, 1982, as Mahoney, J. noted:
Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right. (194) Where the rights were reserved by treaty, the courts often held that the tribe lacked the capacity to enter into such an agreement or found that the treaty provisions had not been incorporated into statute. (195) In any event, treaty rights only provided immunity to aboriginals from provincial jurisdiction under Section 88 of the Indian Act. (196) The Federal government retained full authority under Section 91(24) to disregard aboriginal rights: (197)
However abundant the right of Indians to hunt and to fish, there can be no doubt that such right is subject to regulation and curtailment by the appropriate legislative authority. Section 88 of the Indian Act appears to be plain in purpose and effect. In the absence of treaty protection or statutory protection Indians are brought within provincial regulatory legislation. (198) Since the Constitution Act, 1982, however, Canadian courts have provided a high level of protection for those aboriginal and treaty rights existing in 1982. As the Sparrow Court stated:
Section 35 [of the Constitution Act, 1982] calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. (199) Building on earlier jurisprudence the judiciary has developed a more or less fully articulated legal doctrine of hunting, fishing and gathering rights consistent with current Canadian constitutionalism. 200 The doctrine provides a methodological framework for the courts to determine the existence, content and scope of aboriginal hunting, fishing and gathering rights while describing and systematizing the source and content of these rights.
The Source of the Hunting, Fishing and Gathering Rights
Historical Occupation and Use
Binnie, J. in R. v. Marshall firmly grounds hunting, fishing, and gathering rights in the historic use of natural resources when he equates the Marshalls' eel fishing with the fishing and trading activities of Mi'kmaq 235 years earlier. (201) This approach is consistent with the Supreme Court of Canada's current determination that source of the rights described and systematized in the doctrine of indigenous hunting, fishing and gathering rights arises from aboriginal use, occupation and possession of particular territories prior to European contact: (202)
At the time of the assertion of British sovereignty, North America was not treated by the Crown as res nullius. The jurisprudence of this Court has recognized the factual and legal existence of aboriginal occupation prior to that time. (203) The rights in question therefore arise from both the occupation of the land as well as the existence of distinctive aboriginal cultures and the social organization and law on that land. They survive the transfer of sovereignty to Great Britain (204) and are not dependent upon the Royal Proclamation of 1763 or some other recognition by either the British pre-Confederation colonies or Canada; nor is their existence dependent upon executive action or legislative enactment. "[I]t has become accepted in Canadian law," Lamer, C.J states in Van der Peet "that aboriginal title, and aboriginal rights in general, derive from historic occupation and use of ancestral lands by the natives and do not depend on any treaty, executive order or legislative enactment...." (205) As inherent aboriginal rights they "are part of the fundamental constitutional law that was logically prior to the introduction of English common law" and determined what rules would apply to the colony. (206) As constitutionally protected rights, the rights differentiate aboriginal citizens from non-aboriginals within the Canadian polity, may only be regulated by the federal government and the province in a limited manner, and may not be extinguished without consent of the aboriginals concerned. (207)
The premise that the tribes had an interest in the use or title to land has always been a part of the British and Canadian colonial project. (208) As discussed above, the doctrine of common law aboriginal title and the imperial...