TREATY RIGHT TO HUNT FOR PROFIT UPHELD
Provision in Alberta wildlife law not applicable to
Indians, judge rules
By Miro Cernetig, Alberta Bureau
Alexis Indian Reserve, Alta. - Treaty Indians have never
lost the right to hunt for profit, even though wildlife
laws have banned such activity for most of this century, a
Provincial Court judge ruled yesterday.
In what is being called a landmark decision, Judge Peter
Ayotte turned aside the Crown's argument that Treaty 6
Indians lost their right to carry out commercial hunts in
1930, when control over natural resources was transferred to
Alberta.
The decision, reached after a two-week trial in which four
natives faced dozens of charges related to poaching and
illegal trafficking in wildlife, effectively restores the
right of all treaty Indians to carry out a commercial hunt
in wildlife.
"I can only conclude," Judge Ayotte said, "that treaty right
put forward by the defendants still exists."
Since the Crown could not prove that the right to a
commercial hunt has been extinguished by the Crown, Judge
Ayotte ruled that a section of the Alberta Wildlife Act
outlawing trafficking could not be applied to treaty
Indians.
"In this case, no evidence has been presented justifying the
extent to which treaty rights are restricted by the Wildlife
Act," he said. "I conclude ... they are of no force or
effect in respect of those engaged in the exercise of those
(treaty hunting) rights."
The judge also said that the section of the Wildlife Act
outlawing trafficking in wildlife - defined as selling,
buying, bartering, or soliciting involving wildlife - is
"unreasonable and creates undue hardship" for the 700 Indians
who live on the Alexis Reserve, an isolated community 120
kilometres northwest of Edmonton where employment is high.
"It becomes an offence," the judge said, "for one treaty
Indian who kills a moose for food to trade part of it to
another for a potion of the elk the latter has killed for
the same purpose, or, for that matter, to trade some of it
for a litre of milk and three boxes of cereal.
"So, too, would it be (illegal) to accept money, from an
elderly relative too old to hunt for himself, in return for
the meat one has killed."
Yesterday's decision, which native and government officials
believe will have ramifications across Canada, is likely to
be appealed by the Crown. Alex Pringle, the lawyer who
argued the constitutional case, said the Crown must file an
appeal in 30 days and it would likely be heard early next
year.
Until yesterday, treaty Indians could carry out unregulated
hunting only if it was for subsistence. If upheld by a
higher court, the decision could be as significant as the
Sparrow case, in which the Supreme Court of Canada narrowly
defined the grounds on which the federal government can
limit native fishing rights. The decision could also
necessitate the rewriting of Alberta's Wildlife Act and a
rethinking of conservation plans around reserves.
In his ruling yesterday, Judge Ayotte referred to the
Sparrow decision and added that even when aboriginal rights
have not been extinguished by the Crown there is room for
government regulations. But in the case of wildlife
regulations, which he described as vital, any restrictions
on hunting must be negotiated with Indians. No such
discussions took place when the Wildlife Act was written.
- 30 -