The Position in Canada and New Zealand

895. Two Canadian Cases. Two Canadian cases in particular show how such arguments may be relevant. In R v White and Bob,[1526] the defendants were charged with hunting deer during the off season under a British Columbian Game Act. Justice Norris, one of the majority, held that aboriginal hunting and fishing rights had existed in favour of the Indians from time immemorial. These rights continued to exist as ‘personal and usufructuary rights’ under the British Crown when it acquired sovereignty over Vancouver Island. Since their rights had never been extinguished, provisions of the Game Act affecting the right to hunt and fish did not apply to the defendants. In Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development,[1527] the plaintiffs sought a declaration that the lands comprising the Baker Lake area of the Northwest Territories were ‘subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon’. Justice Mahoney, relying on the Supreme Court’s apparent agreement, in Calder v Attorney-General for British Columbia,[1528] on the existence of native title in the absence of lawful termination or exclusion, granted the declaration.[1529]

896. Other Canadian Developments. However, Canadian Indian and Inuit hunting and fishing rights are recognised in a variety of ways apart from at common law.[1530] These include:

  • Band council by-laws operating within a reserve pursuant to the Indian Act 1951 s 88; such by-laws exclude provincial’ legislation, though the position with federal legislation is unclear.[1531]

  • The provisions of Indian treaties, which prevail over provincial law[1532] but not over subsequent clearly applicable federal legislation.[1533] Treaty hunting and fishing rights are limited to unoccupied land,[1534] and the courts have sometimes been strict in requiring proof of continuance of the treaty and of the descent of claimants from the original treaty Indian group.[1535]

  • Protection is also afforded by the Royal Proclamation of 1763 to those Nations and tribes of Indians who lived under British Protection.[1536]

  • Certain provisions of the Natural Resources Agreements 1930, subject to which Crown land was transferred to Alberta, Saskatchewan and Manitoba, protect the Indians’ ‘right … of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right to access’.[1537] Inconsistent provincial legislation is accordingly excluded[1538] but not inconsistent federal legislation.[1539] Similar provisions are contained in the Northwest Territories Act 1970 s 14 and the Yukon Act 1970 s 17(3).[1540] There is no equivalent obligation with respect to British Columbia, though attempts have been made to argue that Article 13 of the Terms of Union under which the province entered the Union may render invalid fisheries legislation which adopted a policy less liberal than that pursued by the British Government prior to union.[1541]

  • The James Bay and Northern Quebec Agreement signed in 1975 provides for priority to be given to Indian hunting, fishing and trapping rights, subject to conservation principles.[1542] Paragraph 24.3.3 provides that ‘the Native people shall enjoy the sole and exclusive exercise of the right to harvest in accordance with the provisions of this Section’. This right is subject to Federal and Provincial Wildlife regimes and certain other express provisions apart from the interests of conservation. For example, para 24.3.7 provides:

a) The right to harvest shall not be exercised in lands situated within existing or future non-Native settlements within the Territory.

b) The annexation of land by a municipality or any other public body shall not in itself exclude such areas from the harvesting rights of Native people as long as such lands remain vacant.

Certain species of mammals, fish and birds are reserved for the exclusive use of Native people (para 24.7.1; cf schedule 2). This exclusive use includes the right to conduct commercial fisheries in relation to the species of fish so reserved. Non native have the right to hunt and fish in certain areas (para 24.6, 24.8). The management of hunting, fishing and trapping is controlled by the Hunting, Fishing and Trapping Coordinating Committee on which the Cree Native Party, the Inuit Native Party, Quebec and Canada each have three members.[1543] The conclusion of the Northeastern Quebec Agreement has lead to the appointment of two representatives of the Naskapi Native Party and to an increase in Quebec’s and Canada’s representation to four.[1544] The Co-ordinating Committee has been operating since 1975.[1545] At the request of the Crees, the Quebec Government is currently undertaking a review of the implementation of the whole Agreement including Section 24.[1546] The Quebec Government has concluded a further agreement with the Inuvialuit,[1547] and is preparing negotiations with other Indian Nations which are expected to:

come up with completely different solutions in order to prevent as much as possible, conflicts with the white people (private landowners, forest concessions, sport fishing and hunting, etc.).[1548]

  • There is also a limited and variable degree of protection of Indian hunting and fishing rights under provincial legislation.[1549]

In addition to long-established laws and treaties in Canada, there has been much recent negotiation by Indian and Inuit groups to establish the rights they assert on a sounder basis, to resolve land and related claims through comprehensive claims settlement agreements, and to create secure form of self government. In particular s 35 of the Constitution Act 1982 recognizes and affirms ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’. Section 37 requires a continuing series of meetings between leaders of Indian and Inuit organisations and the First Ministers of Canada and the Provinces in an attempt to define and elaborate upon the constitutional provisions affecting native people.[1550] The precise effect of s 35 in reinforcing aboriginal and treaty rights to hunt and fish remains unclear,[1551] and for the time being the question is caught up with wider issues of self government and claims settlement.

897. Summary of the Canadian Position. There is no doubt the range of protections outlined in para 896 is of more significance in Canada than such common law rights as exist. The recognition, particularly at common law. of aboriginal hunting and fishing rights in Canada has in fact ‘been quite limited’:

even a very general Federal enactment such as the Migratory Birds Convention Act has been held to supersede aboriginal rights and a great variety of overlapping wildlife laws makes the assertion of an aboriginal claim nearly futile.[1552]

But hunting and fishing rights continue as a prominent aspect of ‘customary law’ claims in Canada, to which a great deal of attention continues to be paid.[1553] Moreover, the mere existence of common law rights, whatever their scope, has been an important factor in the bargaining position of the Indian and Inuit peoples.

898. The New Zealand Position. The question whether the doctrine of aboriginal title applies in New Zealand was the subject of considerable controversy earlier this century.[1554] The principle was first recognised by the New Zealand Supreme Court in 1847 in R v Symonds.[1555] But a subsequent decision by Pendergast J suggested that in the case of ‘primitive barbarians’ as opposed to civilised nations the issue of a Crown grant extinguished whatever native proprietary rights might exist.[1556] The possibility of the continued existence of aboriginal title in New Zealand was reopened by the Privy Council in Wallis v Solicitor-General for New Zealand in 1903.[1557] Unease at this decision led to the passing of the Native Land Act 1909, s 84 of which provided that:

Save so far as otherwise expressly provided in any other Act the native customary title to land shall not be available or enforceable as against His Majesty the King by any proceedings in any Court or in another manner.[1558]

The combined effect of this legislation and of orders of the Maori Land Court in relation to customary land was to extinguish the possibility of native title to a major part, if not all, land in New Zealand.[1559]