Two recent rulings are good news for Indigenous hunters.
REGINA, Sask.-Indigenous leaders are celebrating a court ruling that says First Nations hunters from outside Saskatchewan have a constitutional right to hunt in the province without a license.
The ruling was made after a group of hunters from the Six Nations reserve in Ontario was charged with unlawful hunting offenses in October 2018. Some of the group's members were hunting for food in Moose Mountain Provincial Park, located about two hours from Regina near the Manitoba border.
Regina Judge Doug Kovatch says the issue was whether the group was exercising its rights under the Saskatchewan Natural Resources Transfer Agreement, which grants treaty First Nations the ability to hunt, fish and trap food on all unoccupied Crown land and other land.
Kovatch ruled the hunters from Ontario were clearly exercising their constitutional rights to hunt for food.
Federation of Sovereign Indigenous Nations Chief Bobby Cameron says the ruling reaffirms that the treaty right to hunt knows no provincial boundaries.
In a similar situation, the B.C. Court of Appeal has upheld an American Indigenous man's right to hunt in Canada because his ancestors traditionally did so.
Richard Desautel was originally charged under the Wildlife Act with hunting without a license and hunting big game while not a resident of B.C. after he shot and killed an elk near Castlegar in 2010.
Desautel, a member of the Lakes Tribe in Washington state, argued in provincial court that he was exercising his constitutional right to hunt for ceremonial purposes.
The Lakes Tribe was described in court as a "successor group" to the Sinixt people, who lived, hunted and gathered in B.C.'s Kootenay region before first contact with European settlers.
The B.C. Supreme Court confirmed his right in 2017 and the Appeal Court reaffirmed it in a ruling in July.
In dismissing the Crown's appeal on behalf of a three-judge panel, Justice Daphne Smith says hunting in what is now B.C. was a central and significant part of the Sinixt's distinctive culture before European contact and remains integral to the Lakes Tribe. "The Lakes Tribe is a modern collective descended from the Sinixt that has continued to hunt and maintained its connection to its ancestral lands in British Columbia. Mr. Desautel is a member of the Lakes Tribe. Therefore, he has an Aboriginal right to hunt elk in the Sinixt's traditional hunting territory in British Columbia," the ruling says.
The Crown had argued in its appeal that Canada's constitutional protection of Aboriginal and treaty rights should not extend to non-residents.
It argued that words matter, pointing out that the constitution recognizes the rights of "Aboriginal peoples of Canada." That term can only mean contemporary rights holding Aboriginal community members who are residents in or citizens of Canada, it said, noting that crossing the international border could be incompatible with Canadian sovereignty.
An expanded interpretation of the right could extend the Crown's duty to consult and accommodate Aboriginal groups in the United States.
"Aboriginal rights are inherent rights that existed at the time of contact. What flows from those rights continues to evolve," the ruling says, adding that those concerns are "not material" to the central question of whether or not Desautel can hunt in Canada.
The decision says the Aboriginal and treaty rights recognized in the constitution involve recognizing Indigenous perspectives on pre-contact and present-day customs alongside the Crown's needs to meet the interests of modern-day Canada.
An ongoing custom or practice that's central and significant to an Indigenous culture may be exercised if the Indigenous person or group can show they are descended from a historic group that exercised the same one, the ruling says.
