Mack was arrested while hunting on his ancestral territory and charged with a harvesting offence. As a status Indian, Mack has Aboriginal harvesting rights. Hear his story above.
What are Aboriginal harvesting rights?
Aboriginal rights protect traditional activities that were practised by Aboriginal ancestors before European contact. Traditional harvesting activities include:
Who has harvesting rights?
Harvesting rights apply to First Nations and Métis; these rights are of great cultural, social, and economic importance. Mack is a Status Indian and Gitxsan. Harvesting rights on his community’s territory are protected.
What are treaty rights?
Treaty rights are rights set out in a treaty with the government and are protected. Both historic and modern treaties define First Nations’ treaty rights to harvest resources, including hunting, trapping, fishing, and gathering. Provincial and federal fish and wildlife regulations in BC don’t recognize rights of historic treaties, only those of modern treaties.
Before you harvest, ask your First Nation for a copy of its treaty to find out the following:
- Where you can harvest.
- What resources you can harvest.
- How you can harvest resources.
- What you can do with your harvest.
- Whether provincial, federal, and First Nation laws (such as a licence or permit to hunt for wildlife or fish in certain areas) may apply.
If you don’t follow the term in the treaty and any laws that apply, a conservation officer may charge you with an offence.
Conservation and public safety
Aboriginal harvesting rights may be restricted by governments for conservation, public health, and public safety reasons. To find out whether there are conservation issues that apply to you, contact your First Nation and the BC Fish and Wildlife Branch before you go hunting or fishing. Restrictions on harvesting include:
- limited entry hunting (LEH) permits,
- bag limits,
- hunting seasons, and
- national parks.
When conservation is an issue, you need an LEH permit even if you’re a status Indian and intend to hunt in your traditional area. The LEH system awards hunting permits to resident hunters based on a random draw and is used to limit the number of certain kinds of animals harvested.
A bag limit is a law that restricts the number of animals within a species that hunters may kill or trap. Bag limits and hunting seasons generally don’t apply to status Indians who are using Aboriginal harvesting rights and live in BC. But they may be enforced if there are conservation concerns about certain species.
Public safety rules may apply when you hunt or fish. For example, you shouldn't hunt or shoot near residential neighborhoods, roads, or recreational areas; or clam fish in areas that are closed due to contamination. The federal government requires Aboriginal harvesters to have a firearms licence. All hunting, trapping, fishing, and gathering is prohibited in national parks.
Pre-harvest checklist
If you’re harvesting under an Aboriginal harvesting right, it’s possible you might be charged if a conservation officer disagrees about what’s included in your Aboriginal harvesting right.
Follow these steps to make it less likely you’ll be charged with a harvesting offence and less likely you’ll be convicted if charged.
Where to get more information
Contact your First Nation to make sure you have your community’s support and to ask any questions about traditional Aboriginal harvesting practices.
For hunting and freshwater fishing licences and permits, contact: Fish and Wildlife Branch at 1-877-855-3222 or portal.nrs.gov.bc.ca/web/client/home.
For marine fishing, contact: your First Nation or the regional DFO office in your area at dfo-mpo.gc.ca/contact/regions/index-eng.html.
For Hunting and Trapping Regulations Synopsis or the Freshwater Fishing Regulations Synopsis, see www2.gov.bc.ca.
If you've been charged with a harvesting offence
Aboriginal harvesting rights cases can be complex. It's a good idea to get legal help. Mack contacted Legal Aid BC and got help with his Aboriginal harvesting offence.
Call Legal Aid BC to find out if you qualify for services:
- 604-408-2172 (Greater Vancouver)
- 1-866-577-2525 (elsewhere in BC)
What if I'm not eligible for a legal aid?
Your Aboriginal community
If you're not eligible for legal aid, your Aboriginal community might be willing to help pay for a lawyer. This depends on the circumstances of your offence and the circumstances of your Aboriginal community.
Other legal help
You might be able to discuss your matter with a duty counsel lawyer who provides free legal advice. You might also be able to get legal information and support from:
- Aboriginal community legal workers
- legal information outreach workers
- Native courtworkers
- Lawyer Referral Service
What other options do I have?
Restorative justice
If you're willing to take responsibility for your actions, you might be able to participate in an Aboriginal restorative justice program. Restorative justice is based on Aboriginal healing traditions and focuses on repairing the harm done by your actions
You, your community, and those affected by your actions will work together to restore harmony and move forward. To participate in a restorative justice program, the Crown counsel must agree to your participation in the program as a way to resolve the charges against you. Talk to your lawyer about what's best for you.
First Nations/Indigenous Court
It’s very important to get legal advice before you plead guilty so you understand your Aboriginal hunting and fishing rights. If you plead guilty to the charges, and Crown counsel agrees to it, you might be able to have your matter heard in First Nations/Indigenous Court.
What your lawyer needs to know
Get legal advice before you plead guilty. Give your lawyer the details of your case and any information that Crown counsel gave you. Your lawyer also needs to know the following:
- your address
- whether you’re a status or a non-status Indian
- whether you’re connected to a First Nation, and whether it has a treaty
- where the offence took place
- which Aboriginal community you're connected to
- if you have permission to harvest
- which members of your community they can meet with to get their position on your charges
- whether you have a criminal record
- if you're available to go to court
Harvesting rights trials
Harvesting offences are heard in provincial criminal court. Harvesting rights trials can take months (or even more than a year) to resolve because of the complex constitutional issues involving your Aboriginal rights or treaty rights.
See the chart below to find out how the court process works.
Page last updated: Wednesday, August 25, 2021 11:08 am hrs
Legal Aid Criminal Duty Counsel — Lawyers paid by Legal Aid BC who can help people with low incomes with their criminal law issues, give free legal advice, but can’t take on your whole case or represent you at trial
Native Courtworkers — Culturally sensitive legal help for Aboriginal people involved in the criminal justice system
Hunting & Trapping Regulations Synopsis — A summary of BC hunting and trapping regulations made under the Wildlife Act, prepared for hunters and trappers