Opinion: An Interpretation of Treaty 3 in Light of the Recent Arrests of 4 Night Hunters

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Just last week the province of Manitoba announced that they arrested four men for hunting at night with lights [1] contrary to s 12(1) of The Wildlife Act which stipulates,

“No person shall at night use lighting or reflecting equipment for the purpose of hunting, killing, taking or capturing a vertebrate animal or attracting or confusing a vertebrate animal for the purpose of hunting, killing, taking or capturing it.” [2]

The Act, which forbids night hunting has caused considerable friction between the First Nations groups of Manitoba and the Manitoba government due to a clause in Treaty 3 which states,

“Her Majesty further agrees with Her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government… (italics added for emphasis).” [3]

While it appears that only two of the men arrested have grounds for a treaty-based argument, these two arrests spark the continual debate over whether Manitoba’s night hunt ban is an infringement on the rights guaranteed to First Nations during the negotiations of Treaty 3 excerpted above. In my opinion, the words of the treaty makes it clear that hunting is a right which was not intended to be revoked from the Aboriginal groups who negotiated treaties. Additional support can be found in the original treaty negotiations, where Lieutenant Governor Morris admitted that,

“They [nations present at Treaty 6 negotiations] had been made to believe that they would be compelled to live on the reserves wholly, and abandon their hunting… I then fully explained to them… that we did not wish to interfere with their present mode of living…” [4]

If Morris (who was coincidentally involved in the negotiation of Treaty 3), had not wished to interfere with the Aboriginal way of living- something which involved hunting and living off the land, he would not have said this during Treaty 6 negotiations. Nonetheless, in order to be successful in winning the battle over the night hunt ban, Manitoban First Nations must show that the night hunt was something they’ve practiced historically (see R v Van der Peet). 

The recent arrests are a call back to the time of the case The Queen v Sutherland et al., a 1980 Supreme Court Case where several members of Peguis First Nation were arrested for hunting at night with spotlights, contrary to Manitoba’s Wildlife Act. In the ruling of the case, it was held that,

“History supports such an interpretation as do the plain words of the proviso. The right assured is the right to hunt game for food at all seasons of the year on lands to which Indians have a right of access for hunting, trapping and fishingnon-dangerous hunting for food is permitted to the Indians regardless of provincial curbs on season, method or limits (italics added for emphasis)…” [5]

This ruling effectively meant that Aboriginal people should be allowed to hunt in a non-dangerous way in areas where they have a right of access. While some people have raised valid safety concerns about the practice of night hunting in populated areas, to me, it seems largely unfair to blanket ban the practice- especially in areas where night hunting has traditionally been practiced and are uninhabited. This raises concerns about The Wildlife Act, the recent arrests and whether they infringe upon the rights afforded to Manitoba First Nations under Treaty 3. 


Sources:

[1] The Canadian Press, “4 men charged in Manitoba for night hunting with lights” (15 Jan 2019), online: CBC.ca <https://www.cbc.ca/news/canada/manitoba/night-hunting-charges-manitoba-1.4979787>.

[2] The Wildlife Act, SM 2015, c 33 Part 1 at s 12(1). 

[3] Treaty No. 3, with Her Majesty the Queen and the Saulteaux Tribe of the Ojibway Indians, 3 October 1873, Ci 72-0366. 

[4] Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-West Territories Including the Negotiations on Which They Are Based, and Other Information Relating Thereto, (Toronto: Willing & Williamson, 1880) at 184 (Digitized by Internet Archive).

[5] The Queen v Sutherland et al. [1980] 2 SCR 451 at 452.