Harvesting in Ontario

HARVESTING IN ONTARIO

Introduction

This publication will serve as a “pathfinder” for Anishinabek First Nation citizens, Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF) staff, and the citizens of Ontario. It is essential to acknowledge that this publication is not intended as a legal document. The Anishinabek Nation (AN) and MNDMNRF participated in developing this guide without prejudice to Aboriginal and Treaty rights and without prejudice to their position of being partners in natural resource use, development, and planning.

This publication is also without prejudice to the rights, privileges, jurisdiction, or responsibilities of either party. In addition, it does not confer on either party any right, privilege, jurisdiction or responsibility beyond the limit of the respective constitutional or legal authority of that party.

Aboriginal rights are communal in nature, grounded in the historical harvesting traditions and practices of the Aboriginal peoples of Canada. Certain responsibilities, including conservation and safety, are an essential part of exercising these rights. Some restrictions that are intended for safety and conservation purposes apply to First Nation harvesters. It is also important to understand that many other resource user groups exist that have a fishing, hunting and trapping heritage. Everyone must respect the rights and privileges of other harvesters. All users need to understand and respect each other’s values and cooperatively work towards building stronger relationships if Ontario’s hunting, fishing, and trapping heritage is to flourish.

First Nations people have always had a special relationship with natural resources, particularly fish and wildlife. This relationship is based on subsistence needs and cultural values that have continued since time immemorial.

Anishinabek people may harvest within their Treaty Area or recognized traditional areas in which harvesting rights exist, in all seasons of the year on all unoccupied Crown lands. Aboriginal and Treaty rights relating to hunting, fishing and trapping are also recognized and affirmed by virtue of Section 35 of the Constitution Act (Canada), 1982.

Background

Anishinabek Nation Territory

Frequently Asked Questions

A list of Q & A’s has been mutually prepared by AN and MNDMNRF on the exercise of Anishinabek harvesting rights in Ontario. These are typical questions from Anishinabek First Nation citizens and the public regarding Aboriginal and treaty harvesting rights. Some questions listed can be answered easily; however, other answers may be more complex and may be influenced by case law, the Constitution of Canada, Federal and Provincial legislation, Treaties as well as Anishinabek principles, practices and traditions. Refer to the definition section for clarity with Q & A’s.

Harvesting

Q1: Do Aboriginal people need a licence to hunt or fish legally?
A1: Aboriginal persons with harvesting rights within their treaty area or recognized traditional harvesting areas do not need a licence to hunt or fish for food, social or ceremonial purposes.

Q2: Where can Aboriginal people legally hunt and fish?
A2: Generally, harvesting can occur on unoccupied Crown lands within the Aboriginal person’s Treaty Area or recognized traditional area where Aboriginal or Treaty rights exist.

Q3: How much can Aboriginal people legally harvest?
A3: Aboriginal people with Aboriginal or treaty rights within their Treaty Area or recognized traditional area are generally not restricted by quotas or limits when harvesting for food, social or ceremonial purposes. Restrictions may be necessary if conservation is a concern.

Q4: When during the year can Aboriginal people legally hunt and fish?
A4: Aboriginal people with Aboriginal or treaty rights within their Treaty Area or recognized traditional area are generally not restricted from exercising those rights in certain seasons. Restrictions may be necessary if conservation is a concern.

Q5: Can Aboriginal people legally harvest outside of their Treaty Area or territory harvesting area?
A5: Where a First Nation community, which has a traditional practice of granting permission to Aboriginal persons from another Treaty Area or traditional harvesting area, grants permission to an Aboriginal person from outside of their community to harvest in their territory, enforcement action will not generally be pursued where:

The permission granted is in writing and:
- Identifies explicitly the Aboriginal person(s) to whom the permission is granted;
- Identifies the species and quantity of fish or game being authorized to be harvested;
- Generally, identifies the geographic area within which permission is being granted to harvest; and
- Identifies the timeframe for which the permission is valid.
The permission is signed by the Chief of the First Nation, granting permission.
The permission is carried by the Aboriginal person harvesting pursuant to that permission at all times while harvesting and is shown to a Conservation Officer upon request, along with any other information required, such as a status card.
Some First Nations don’t issue written letters of permission due to recognized right in Canada; however, permission from the community is still required. * For additional information, please contact the Anishinabek Nation Lands and Resources Department.

Q6: Can an Aboriginal person legally hunt and/or fish on game preserves, or in sanctuaries or provincial/federal parks?
A6: The exercise of Aboriginal rights and Treaty rights in these areas may be restricted if conservation objectives or safety concerns are an issue (Contact local band offices and MNDMNRF offices regarding specific areas).

Q7: Are non-Aboriginal persons allowed to legally hunt and/or fish on reserve lands?
A7: In certain circumstances, First Nations may have provisions that permit non-Aboriginal people to hunt and/or fish on reserve lands . All Federal and Provincial legislation still applies to non-Aboriginal persons hunting or fishing on reserve lands .

Q8: Can Aboriginal people legally hunt or fish with non-Aboriginal people?
A8: Yes, however, licenced non-Aboriginal hunters and anglers can only harvest what their licence authorizes and cannot actively participate in the hunting/fishing that an Aboriginal individual is engaged in under their Aboriginal or Treaty rights. Aboriginal harvesters cannot harvest for non-Aboriginal persons (see Mixed Party Hunting and cover off related definitions).

Q9: Can Aboriginal people legally share the harvest with a non-Aboriginal person?
A9: Generally speaking, Aboriginal harvesters exercising their Aboriginal or Treaty rights may harvest for themselves and their community citizens only. There may be circumstances where Conservation Officers will consider that the sharing of fish or game harvested by an Aboriginal person exercising their Aboriginal or Treaty rights, with non-Aboriginal persons or non-community citizens who have assisted, is reasonable. ( R. v. Irving )

Q10: Can a non-Aboriginal person legally help an Aboriginal person retrieve his/her wildlife harvested while exercising their Aboriginal or Treaty rights?
A10: Yes, the restrictions apply only to the actual harvesting.

Q11: Can a non-Aboriginal person legally buy fish or wildlife from an Aboriginal person?
A11: Generally speaking, commercialization is highly regulated, and proper licences and permits are required. A non-Aboriginal person can purchase lawfully harvested fish or wildlife taken by an Aboriginal harvester with commercial harvesting rights.

Q12: Can an Aboriginal person legally build a cabin on Crown lands?
A12: In some circumstances, an Aboriginal person may construct a cabin on Crown land for the purpose of providing shelter reasonably incidental for exercising their Aboriginal or Treaty rights ( R. v. Sundown, [1999] ). Local MNDMNRF and/or Band offices must be contacted. * For additional information, please contact the Anishinabek Nation Lands and Resources Department.

Q13: Can an Aboriginal person legally use a gill net or spear for harvesting fish?
A13: Yes, Aboriginal persons that possess Aboriginal rights or Treaty rights to fish may use a gill net or spear for fishing.

Q14: Can a non-aboriginal person legally lift an Aboriginal set gill net?
A14: The law prohibits any person from interfering with lawful fishing, including tampering with nets that are lawfully set and identified properly. Also, a non-Aboriginal person cannot help an Aboriginal person exercise an Aboriginal right or Treaty right unless help is needed to assist in minimizing exposure to danger or is provided further to a licence.

Q15: Can Aboriginal people legally harvest re-introduced species or species at risk or endangered species?
Q15: The lawful harvesting of these species would be dependent on the Fish and Wildlife Conservation Act (FWCA) and Endangered Species Act prohibitions as well as the infringement and justification analysis set out in Sparrow and Tsilhqot’in decisions.

Q16: Do Aboriginal people have to report their harvest?
Q16: No, currently, there is no provincial reporting mechanism in place within the Province to monitor First Nation harvest. However, some First Nations are recognizing the importance of managing the resource within their territory. Some agreements are in place that require reporting. Contact your local First Nation for details.

Safety

Q1: Is an Aboriginal person legally required to take the hunter safety course?
A1: Generally, there is no requirement for an Aboriginal person to take a hunter safety course. Where there is a requirement for an Aboriginal person to have an Outdoors card (hunting outside of Traditional or Treaty Area without a Shipman letter, with a licence), a hunter safety course is necessary. It is highly recommended that all hunters take this training.

Q2: Can an Aboriginal person legally hunt from roadways/highways?
A2: No. Absent from extraordinary circumstances where it is completely safe to do so, an Aboriginal person may not, on roads and highways, discharge a firearm from, across, or down the travelled portion of the roadway in the interests of public safety.

Q3: Can an Aboriginal person legally hunt at night?
A3: The Supreme Court of Canada has held that night hunting is not inherently unsafe and that the circumstances of each case will inform whether the night hunting falls within the safe exercise of s.35 rights.
In most of southern Ontario and much of eastern Ontario, private land is visually incompatible with hunting because it is posted, fenced or farmed, or there are homes and buildings. It will be difficult to argue that hunting in such areas at night is safe such that the FWCA prohibitions will very likely apply. In situations where night hunting raises an obvious and serious safety concern, the Interim Enforcement Policy (See definition) will be followed.

Q4: Are Aboriginal hunters legally required to wear hunter orange clothing?
A4: No, not if a licence is not required to hunt. However, it is highly recommended that hunters do wear this clothing for obvious safety reasons.

Enforcement

Q1: Does the FWCA apply to First Nations harvesters?
A1: Certain sections of the FWCA , including the inspection and enforcement provisions and other resource management legislation, apply to ensure that actions of Aboriginal harvesters are consistent with public safety and conservation objectives such that any infringements on Aboriginal and treaty rights are justified.

Q2: Can the MNDMNRF seize fish or game from an Aboriginal person?
A2: Yes, if it has been determined to be unlawfully harvested or possessed.

Q3: What is the “Interim Enforcement Policy” (IEP)?
A3: The IEP is MNDMNRF ‘s process to assess if Aboriginal and treaty rights are being exercised prior to taking any enforcement action (warning or charge), in relation to Aboriginal harvesters of natural resources in Ontario. Where the assessment determines that unlawful activity has occurred, the appropriate enforcement action will be taken.

Q4: Can the MNDMNRF restrict an Aboriginal person’s use of forest access roads?
A4: In some special circumstances (i.e. public safety), MNDMNRF may restrict vehicle access only. Access by non-motorized means is permissible.

Q5: Can an Aboriginal person legally claim to have taken fish or game harvested by a non-Aboriginal?
A5: No, an Aboriginal person may not ” cover off ” fish or game harvested by a non aboriginal person.

Firearms Related

Q1: Do Aboriginal people need a Federal “Firearms Licence” to hunt?
A1: Yes, firearms licencing does apply to Aboriginal people. However, where a treaty grants First Nation citizens ” full and free rights ” to hunt, Firearms Licencing fees* do not have to be paid. Please contact the Chief Provincial Firearms Officer in Ontario for further information. (Website: www.cfc-ccaf.gc.ca or phone: 1-800-731-4000). * R. v. Nayanokeesic, 2004 (2 C.N.L.R. 273)

Q2: Do Aboriginal people need to register firearms?
A2: Yes, according to the Chief Provincial Firearms Officer, all firearm owners must register their restricted or prohibited firearms. Non-restricted firearms (hunting rifles) no longer need to be registered in Ontario.

Q3: Does an Aboriginal person need a licence to buy firearms or ammunition?
A3: Yes, according to the Canada Firearms Act , everyone must have a licence.

Q4:Does a Conservation Officer or Police officer have a right to examine firearms?
A4: Yes, according to the Fish & Wildlife Conservation Act (FWCA) and the Canada Firearms Act (CFA), all persons in possession of firearms are subject to examination upon request. Officers of the Anishinabek Police Service, the First Nation Police Service and City or Municipal Police Services are also empowered to enforce the FWCA and the CFA and may lawfully inspect your firearms.

Definitions

The definitions, as described herein, are not to be interpreted as being legal in any context. Legal definitions are usually contained in specific Acts and Regulations. It is recommended that specific legislation be referred to for legal purposes.

Aboriginal
For this publication, Aboriginal refers to the Anishinabek First Nations within the Anishinabek Nation territory.

Aboriginal Rights
Are collective rights that stem from the elements of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. They are inherent rights, practiced and enjoyed since prior to European contact.

Anishinabek Nation
The Anishinabek Nation incorporated the Union of Ontario Indians (UOI) as its secretariat in 1949. The Anishinabek Nation is a political advocate for 39 member First Nations across Ontario. The Union of Ontario Indians is the oldest political organization in Ontario and can trace its roots back to the Confederacy of Three Fires, which existed long before European contact.

Anishinabek Territory
The Anishinabek Nation represents 39 First Nations throughout the Province of Ontario from Golden Lake in the east, Sarnia in the south, Thunder Bay and Lake Nipigon in the north. The First Nations have an approximate combined population of 68,000 citizens, one-third of Ontario’s Aboriginal population, which also constitutes the fastest-growing demographic group in the Province. The Anishinabek Nation has four strategic regional areas Southwest, Southeast, Lake Huron and Northern Superior, and each region is represented by a Regional Deputy Grand Council Chief.

Barter
Trade or exchange. This does not include cash sales.

Closed Roads (on Crown lands)
Roads closed under the authority of the Public Lands Act for specific purposes.

Community Harvest
Harvesting associated with the local band, ceremonial or traditional practices (social). Check with the local band concerning community harvest protocols, traditions and practices.

Community Rights
Collective rights of a First Nation as recognized through Treaty or traditional practices.

Constitutional Rights (1982)
Section 35 of the Constitution Act of Canada guarantees the rights of Aboriginal people to hunt and fish as their ancestors have done for generations; the supreme law of Canada entrenches Treaty and Aboriginal rights for Aboriginal people of Canada.

Cover-off
A person with Aboriginal or treaty rights attempting to legitimize illegally harvested fish and/or wildlife (i.e. non-Aboriginal kill without proper tags or licence).

Conservation Officers
Conservation Officers are officers appointed under the fish and Wildlife Conservation Act. They are granted powers of inspection, arrest, search, and seizure under the various statutes they enforce, including the Fish and Wildlife Conservation Act , the Migratory Birds Convention Act and the Fisheries Act and many other pieces of legislation.

Crown
Federal and/or Provincial Government.

Discharge firearm carelessly
Discharge a firearm in a manner as to endanger persons or property.

Endangered Species
Species as defined by the Endangered Species Act.

Hunt for Hire
Soliciting any person(s) to harvest an animal for profit (i.e. cash or barter).

Incidental/Traditional Structure
A structure incidental to the exercise of Aboriginal and Treaty rights that are exercised by community members through the support or agreement of the community. May include such structures as cabins, hunt camps, and other forms of structures that are culturally deemed appropriate to the First Nation. For additional information, please contact the Anishinabek Nation Lands and Resources Department.

Infringement
Restricting of a right.

Interim Enforcement Policy (IEP)
The IEP is the Government of Ontario’s position on how it will recognize Aboriginal and Treaty rights and takes appropriate consultation and enforcement actions regarding Aboriginal harvesters of natural resources in Ontario, with a view to minimize conflict between Aboriginal people and the Crown.

Inter-Territorial or Inter-Treaty Harvesting
Harvesting in a territory outside of that which a person has a right to harvest in a treaty or recognized traditional area where harvesting rights exist.

Loaded firearm on/in vehicle/vessel A firearm cannot be loaded in a vehicle or vessel. A firearm is loaded if:
a. in the case of a firearm that uses shells or cartridges, there is an unfired shell or cartridge in the chamber or in a magazine attached to the firearm;
b. in the case of a percussion muzzle-loading gun, there is a charge of powder and a projectile in the barrel and a percussion cap on the nipple;

in the case of an electronic ignition muzzle-loading gun, there is a charge of powder and a projectile in the barrel and a battery connected to the primer or charge;

c. in the case of a muzzle-loading gun to which clauses (b) and (b.1) do not apply, there is a charge of powder, and a projectile in the barrel and the vent is unplugged;
d. in the case of a gun to which clauses (a), (b), (b.1) and (c) do not apply, there is a projectile in the gun or in a magazine attached to the gun;
e. in the case of a crossbow, the bow is cocked, and there is a bolt in the crossbow; and
f. in the case of a bow other than a crossbow, the bow is strung, and an arrow is nocked.

Mixed Party Hunting
Aboriginal hunters and non-Aboriginal licenced hunters engaged in hunting activities as a group.

MNDMNRF Geographic Territory
Province of Ontario consisting of 3 Regions, 27 Districts, 3 Great Lake Units.

Night Hunting
Hunting between one-half hour after sunset and one-half hour before sunrise.

Obstruct, hinder
Provide false or misleading information and/or interfere with a lawful process or investigation in any manner, physically or otherwise.

Party Hunting
ONLY applies to licenced deer, moose and bear hunters and means… “two or more persons hunting during an open season where each person has agreed to hunt cooperatively during a specified period of time, in an area that can be reasonably hunted by the participating persons”.

Personal Use
The harvest and/or use of fish and wildlife for personal or the Aboriginal community’s consumption, social and ceremonial purposes.

Reserve lands
A Federally recognized individual First Nation land base (see local band office).

Sale of fish/wildlife
Trade or barter of fish and/or wildlife for profit, may include cash.

Sanctuaries/closed lakes/game preserves/parks
Protected areas usually set aside or identified for the purposes of conservation and/or safety.

Snowmobile Act
Under the Motorized Snowmobile Vehicles Act, First Nations are exempt from obtaining a permit to use designated trails if they are accessing hunting and fishing areas, providing the trail they are using to access the area does not cross private lands.

Traditional areas
Recognized historical territory, which may or may not be included in a Treaty Area in which harvesting rights exist.

Treaty Area
Geographical area as described within a specific treaty.

Treaty Rights Unlike Aboriginal rights, “treaty rights” do not only derive from Aboriginal peoples’ historic occupation of the land. Treaty rights derive from negotiated agreements set out in treaties and land claims agreements (the modern equivalent of treaties) between Aboriginal people and the Crown.
Treaty rights are, by definition, “rights conferred by treaty”. Treaties entrench a legal relationship between Aboriginal people and the Crown.

Unceded lands
Lands not subjected to treaty agreements.

Unsafe Hunting from roadway
Discharge of a firearm from a vehicle or discharging a firearm down, from or across a roadway.

Wastage
Waste or spoilage of fish or wildlife that was otherwise useable as food, etc., abandonment.

Links

Anishinabek Nation

Assembly of First Nations

Canada Legislation

Chiefs of Ontario

Indian and Northern Affairs Canada

Ministry of Natural Resources

Ontario Legislation

The Supreme Court of Canada

Convention on International Trade of Endangered Species of Wild Flora and Fauna (CITES)

Report of the Royal Commission on Aboriginal People

Disclaimer
NOTE: The information as described herein are for general information only and not to be interpreted as being legal in any context. Legal definitions are usually contained in specific Acts, Regulations, etc., and only definitions contained in legislation apply in legal proceedings.

“An information guide intended to understand First Nation’s principles on harvesting and the MNDMNRF policies.”