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Question about "status" hunters?
- Thread starter chisholm
- Start date
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Are you now automatically a bigot if you believe that in this day and age Natives should have to play by the same rules and have no more hunting rights than the rest of us??
I would say that when you call the cops or CO and the first question they ask is if they were native it has everything to do with treaty rights.
If you answer yes it was natives there is zero follow up.
I live close to a reserve and nobody around here even bothers to call about this kind of thing anymore.
Around here Natives get charged and convicted with night hunting, my nephew in his younger days (8 years ago or so) was one of them. His case got pleaded down to a stiff fine for the hunting charge and all of the firearm charges were dropped (Crown could not determine who was shooting).
You should actually read the night hunting decision. The court basically said the tradition of night hunting was legal, as long as it was safe. The court said there was nothing automatically dangerous about night hunting in itself, it was how and where it was done. If its right beside someone's house I think the argument it is unsafe could be made.
If it was my house I would have called the cops. Just give them the facts, someone is shooting near my house, there's a large group of them. Let the cops arrive and sort it out, I bet they would be there in a hurry. Even if not convicted on a hunting charge the lawyer fees to fight it and a drunk driving conviction can be a good deterrent.
You should actually read the night hunting decision. The court basically said the tradition of night hunting was legal, as long as it was safe. The court said there was nothing automatically dangerous about night hunting in itself, it was how and where it was done. If its right beside someone's house I think the argument it is unsafe could be made.
If it was my house I would have called the cops. Just give them the facts, someone is shooting near my house, there's a large group of them. Let the cops arrive and sort it out, I bet they would be there in a hurry. Even if not convicted on a hunting charge the lawyer fees to fight it and a drunk driving conviction can be a good deterrent.
Again, it's the approach that makes the difference. If you called about "illegal hunting", you may find the issue crop up.
If you called the RCMP about armed trespassers discharging firearms near your home, on your private property at night, I 100% guarantee that the dispatcher would not ask you to verify the race of the trespassers. And the correct answer would be "I have no idea".
Calling the CO for this issue is like calling the gas company because your house is on fire.
So I should lie to the police when it is obvious it is native hunting like in the OP's situation.
How was it obvious to be native hunting in the OPs situation? People shooting in the dark next to his house is obviously natives? Genius.
He clearly states he discovered 8 status hunters gutting a moose. Get someone to read it to you.
Ya after he went and checked it out for himself. Your post seemed to insinuate that it was obviously native hunters because they were shooting in the dark. He should have just called it in.
Maybe they were Filipinos........or Mexicans.......or .......whatever 
It is dangerous use of a firearm, and criminal trespass. These are Criminal Code offences, and have no free passes available.
The RCMP should have been called on 911 to advise armed trespassers on the property and shots fired. No more, no less.
This story has nothing to do with hunting or treaty rights.
It is dangerous use of a firearm, and criminal trespass. These are Criminal Code offences, and have no free passes available.
The RCMP should have been called on 911 to advise armed trespassers on the property and shots fired. No more, no less.
This story has nothing to do with hunting or treaty rights.
Well maybe next time you should stick to what is being discussed and not put words in my mouth and insinuate I am a racist. The OP asked if he should have called it in because he didn't know how the law applied to natives. That's the reason natives are mentioned throughout this thread.
The Supreme Court of Canada has said they can be charged and convicted.
http://www.canlii.org/en/sk/skpc/do...html?searchUrlHash=AAAAAQAIdHJlc3Bhc3MAAAAAAQ
[QUOTE
FACTS
[7] An Agreed Statement of Facts admitted that:
a) The three accused are all treaty Indians, being members of the Flying Dust First Nation, which is a part of Treaty No.6;
b) On the evening of December 26, 2001, the accuseds were hunting elk near Dorintosh, Saskatchewan. They did not have licenses, permits, or any lawful authorization to hunt elk;
c) They were hunting out of season;
d) They were hunting at night, between 8:00 and 9:00 PM, on privately owned land which was leased to Randy Jones and Pam Jones, which land is within the area covered by Treaty No.6;
e) Randy Jones and Pam Jones are ranchers. They have a residence and farmyard on this property. The hunting took place on a portion of the property which is a fenced stubble field, was less than one half mile from the Jones’ house and buildings, and the field had been used to pasture cattle in the fall of 2001;
f) Willis G. Merasty and Howard J. Bear shot at the elk with firearms from the ditch adjacent to Provincial Highway #4 which runs adjacent to the Jones property. Willis G. Merasty and Howard J. Bear shot at a herd of elk, killing two elk, with firearms from the ditch adjacent to Provincial Highway #4 which runs adjacent to the Jones property.
g) The accused entered the Jones property with their vehicle, retrieved the two elk and butchered them on the Jones property, left the hides and gut piles on the property, and loaded the elk meat into their vehicle and left;
h) The accused divided up the elk meat between the three of them and each took some of the meat to their homes. They admit to being in possession of the elk meat within the meaning of Section 33 of The Wildlife Act, 1998;
i) None of the Defendants had permission from the landowners or the lessee, Randy Jones and Pam Jones, to hunt elk on the Jones property on December 26, 2001.
[8] Additional evidence led at the trial established that the land on which the hunting took place was not posted.
ANALYSIS
[9] As the Agreed Statement of Facts proves all the essential elements in this case, the only outstanding issue is whether the accused have an aboriginal right to hunt which makes them not guilty of the charges.
[10] In R. v. Badger 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, the Supreme Court of Canada held that the Natural Resources Transfer Act, 1930, imposes is a geographical limitation on the aboriginal right to hunt guaranteed by treaty. The right to hunt for food on any land to which there is a right of access for the purpose of hunting is limited where the visible use of such land is for a purpose incompatible with hunting. The Supreme Court concluded that hunting on scrub land with stubble, where there were no fences and an occupied house was nearby, was not permissible because it was land that was visibly being used and therefore there was no right of access to these lands nor any treaty right to hunt for food on the lands. Similarly, there was no right to hunt on a snow covered field which was unfenced, with run down barns nearby, and on which land a crop had been harvested in the fall. On the other hand, hunting on uncleared muskeg, on unfenced land where there were no building near the sight of the kill, was permissible because it was not land that was being put to any visible use which was incompatible with the aboriginal right to hunt for food. While this case dealt with Treaty 8, I conclude that it applies equally to Treaty 6.
[11] In subsequent cases in Saskatchewan, the application of the test set out in Badger was considered:
a) In R. v. Peeace (2000) 2000 SKCA 16 (CanLII), 189 Sask. R. 117 (C.A.), the court held there was no right to hunt on an unfenced summer fallow field which would be seeded the next spring because it was land being used for an agricultural purpose;
b) In R. v. Ahenakew (2000) 2000 SKQB 425 (CanLII), 197 Sask. R. 195 (Q.B.), the court held there was no right to hunt on pasture land leased from the Crown, where it was surrounded by a fence and gate and the kill site was located in close proximity (one and one half miles) from the lessee’s residence, and the yard site was visible from the road on which the aboriginal hunters were travelling, even though there were no cattle in the pasture, but the accused knew that the land was used as pasture land and that there were homes in the area.
[12] Applying the Badger test to this case, I find that the Jones property is property that was visibly being used for a purpose incompatible with a right to hunt. Use of the land as pasture was for an agriculture purpose. The hunting took place on a portion of the property which is a fenced stubble field and where a residence and farmyard and building are located less than one half mile away. These facts clearly establish a visible, incompatible land use.
[13] The accused argue that there is an implied right of access as was found in R. v. Lachance reflex, [1997] S. J. No. 820, and R. v. Bird [1983] 4 C.N.R. 77. In those cases the right to access was based on the decision of the Supreme Court of Canada in R. v. Mousseau 1980 CanLII 194 (SCC), [1980] 2 S.C.R. 89, in which was held that a right to access is created by custom, usage, or consent of the owner or occupier. In Lachance, the right to access, and the right to hunt, was created by the fact that the accused had hunted in the particular area for many years. In Bird, the implied consent was based on the fact the owner was aware that the land was, on occasion, used for hunting and expressed no objection to this.
[14] I do not find any implied consent, or right to access, in the circumstances of this case. No evidence was led to establish a long-standing practice of hunting on this land. No evidence was led that the owner or occupier was aware of hunting on the land and took no objection to it. The circumstances of this case are distinguishable from those in Lachance and Bird given the lack of this evidence.
[15] The accused further argued that there is an implied right of access because the subject land in this case was not posted, and that Section 41 of the Wildlife Act, 1998, makes it an offence to hunt on posted land except with the consent of the owner or occupant.
[16] Section 41(6) of the Act confirms that the absence of signs alone does not imply consent to entry on the land nor imply a right of access for the purpose of hunting.
[17] In R. v. Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. 187, the Supreme Court of Canada held in the interpretation of a similarly worded section which was the predecessor of section 41, that the right of access was restricted and is subject to the common law of trespassing. The court held that the statute reinforces the restriction to enter on private lands and makes it abundantly clear that the failure to post the land is not sufficient to imply consent to enter on the land or to imply a right of access. The court further held that hunters, whether they be treaty Indians or otherwise, enter private property with no greater rights than other trespassers. The absence of signs prohibiting hunting is not, without more, implied consent for a hunter to enter on the land for the purpose of hunting. There must be evidence of permission, either expressed or implied, before a right of access to hunt on private land exists. There is no right of access in the absence of such permission or consent from the owner or occupier. The right to hunt food is unrestricted on land to which treaty Indians have a right of access as described in Mousseau.
[18] The accused here did not have consent, either expressed or implied, to enter on the land and therefore did not have a right of access for the purpose of hunting for food on the Jones property.
[19] I therefore find each of the accused guilty of all charges.
Dated this 13th day of December 2004.
][/QUOTE]
http://www.canlii.org/en/sk/skpc/do...html?searchUrlHash=AAAAAQAIdHJlc3Bhc3MAAAAAAQ
[QUOTE
FACTS
[7] An Agreed Statement of Facts admitted that:
a) The three accused are all treaty Indians, being members of the Flying Dust First Nation, which is a part of Treaty No.6;
b) On the evening of December 26, 2001, the accuseds were hunting elk near Dorintosh, Saskatchewan. They did not have licenses, permits, or any lawful authorization to hunt elk;
c) They were hunting out of season;
d) They were hunting at night, between 8:00 and 9:00 PM, on privately owned land which was leased to Randy Jones and Pam Jones, which land is within the area covered by Treaty No.6;
e) Randy Jones and Pam Jones are ranchers. They have a residence and farmyard on this property. The hunting took place on a portion of the property which is a fenced stubble field, was less than one half mile from the Jones’ house and buildings, and the field had been used to pasture cattle in the fall of 2001;
f) Willis G. Merasty and Howard J. Bear shot at the elk with firearms from the ditch adjacent to Provincial Highway #4 which runs adjacent to the Jones property. Willis G. Merasty and Howard J. Bear shot at a herd of elk, killing two elk, with firearms from the ditch adjacent to Provincial Highway #4 which runs adjacent to the Jones property.
g) The accused entered the Jones property with their vehicle, retrieved the two elk and butchered them on the Jones property, left the hides and gut piles on the property, and loaded the elk meat into their vehicle and left;
h) The accused divided up the elk meat between the three of them and each took some of the meat to their homes. They admit to being in possession of the elk meat within the meaning of Section 33 of The Wildlife Act, 1998;
i) None of the Defendants had permission from the landowners or the lessee, Randy Jones and Pam Jones, to hunt elk on the Jones property on December 26, 2001.
[8] Additional evidence led at the trial established that the land on which the hunting took place was not posted.
ANALYSIS
[9] As the Agreed Statement of Facts proves all the essential elements in this case, the only outstanding issue is whether the accused have an aboriginal right to hunt which makes them not guilty of the charges.
[10] In R. v. Badger 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, the Supreme Court of Canada held that the Natural Resources Transfer Act, 1930, imposes is a geographical limitation on the aboriginal right to hunt guaranteed by treaty. The right to hunt for food on any land to which there is a right of access for the purpose of hunting is limited where the visible use of such land is for a purpose incompatible with hunting. The Supreme Court concluded that hunting on scrub land with stubble, where there were no fences and an occupied house was nearby, was not permissible because it was land that was visibly being used and therefore there was no right of access to these lands nor any treaty right to hunt for food on the lands. Similarly, there was no right to hunt on a snow covered field which was unfenced, with run down barns nearby, and on which land a crop had been harvested in the fall. On the other hand, hunting on uncleared muskeg, on unfenced land where there were no building near the sight of the kill, was permissible because it was not land that was being put to any visible use which was incompatible with the aboriginal right to hunt for food. While this case dealt with Treaty 8, I conclude that it applies equally to Treaty 6.
[11] In subsequent cases in Saskatchewan, the application of the test set out in Badger was considered:
a) In R. v. Peeace (2000) 2000 SKCA 16 (CanLII), 189 Sask. R. 117 (C.A.), the court held there was no right to hunt on an unfenced summer fallow field which would be seeded the next spring because it was land being used for an agricultural purpose;
b) In R. v. Ahenakew (2000) 2000 SKQB 425 (CanLII), 197 Sask. R. 195 (Q.B.), the court held there was no right to hunt on pasture land leased from the Crown, where it was surrounded by a fence and gate and the kill site was located in close proximity (one and one half miles) from the lessee’s residence, and the yard site was visible from the road on which the aboriginal hunters were travelling, even though there were no cattle in the pasture, but the accused knew that the land was used as pasture land and that there were homes in the area.
[12] Applying the Badger test to this case, I find that the Jones property is property that was visibly being used for a purpose incompatible with a right to hunt. Use of the land as pasture was for an agriculture purpose. The hunting took place on a portion of the property which is a fenced stubble field and where a residence and farmyard and building are located less than one half mile away. These facts clearly establish a visible, incompatible land use.
[13] The accused argue that there is an implied right of access as was found in R. v. Lachance reflex, [1997] S. J. No. 820, and R. v. Bird [1983] 4 C.N.R. 77. In those cases the right to access was based on the decision of the Supreme Court of Canada in R. v. Mousseau 1980 CanLII 194 (SCC), [1980] 2 S.C.R. 89, in which was held that a right to access is created by custom, usage, or consent of the owner or occupier. In Lachance, the right to access, and the right to hunt, was created by the fact that the accused had hunted in the particular area for many years. In Bird, the implied consent was based on the fact the owner was aware that the land was, on occasion, used for hunting and expressed no objection to this.
[14] I do not find any implied consent, or right to access, in the circumstances of this case. No evidence was led to establish a long-standing practice of hunting on this land. No evidence was led that the owner or occupier was aware of hunting on the land and took no objection to it. The circumstances of this case are distinguishable from those in Lachance and Bird given the lack of this evidence.
[15] The accused further argued that there is an implied right of access because the subject land in this case was not posted, and that Section 41 of the Wildlife Act, 1998, makes it an offence to hunt on posted land except with the consent of the owner or occupant.
[16] Section 41(6) of the Act confirms that the absence of signs alone does not imply consent to entry on the land nor imply a right of access for the purpose of hunting.
[17] In R. v. Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. 187, the Supreme Court of Canada held in the interpretation of a similarly worded section which was the predecessor of section 41, that the right of access was restricted and is subject to the common law of trespassing. The court held that the statute reinforces the restriction to enter on private lands and makes it abundantly clear that the failure to post the land is not sufficient to imply consent to enter on the land or to imply a right of access. The court further held that hunters, whether they be treaty Indians or otherwise, enter private property with no greater rights than other trespassers. The absence of signs prohibiting hunting is not, without more, implied consent for a hunter to enter on the land for the purpose of hunting. There must be evidence of permission, either expressed or implied, before a right of access to hunt on private land exists. There is no right of access in the absence of such permission or consent from the owner or occupier. The right to hunt food is unrestricted on land to which treaty Indians have a right of access as described in Mousseau.
[18] The accused here did not have consent, either expressed or implied, to enter on the land and therefore did not have a right of access for the purpose of hunting for food on the Jones property.
[19] I therefore find each of the accused guilty of all charges.
Dated this 13th day of December 2004.
][/QUOTE]
My Roommate (early 90's) was a card carrying treaty fellar. He tried this one balmy August Alberta evening outside of Stony Plain, AB.
He was charged and convicted with:
Hunt and Night
Hunt with a light
Tresspassing.
Not only did they seize his weapons (and the dog sized deer)...but where looking at mine too. I wasn't even in the phucking same area code at the time.
SO for all you $hithouse lawyers out there, there is a Santa Clause.
He was charged and convicted with:
Hunt and Night
Hunt with a light
Tresspassing.
Not only did they seize his weapons (and the dog sized deer)...but where looking at mine too. I wasn't even in the phucking same area code at the time.
SO for all you $hithouse lawyers out there, there is a Santa Clause.
bearkilr
CGN Ultra frequent flyer
- Location
- Nowhere, ......just past the middle
It's 2014, things have changed.
Like I said, it's legal for them to hunt at night where safe to do so, and it has to be on crown land or where they have permission. The case quoted in post #38 resulted in a conviction as the judge decided they didn't have permission and as such all their treaty based rights are out the window, including night hunting.
"The court further held that hunters, whether they be treaty Indians or otherwise, enter private property with no greater rights than other trespassers."
- Location
- Richmond, BC
Call the police...takes only a few minutes. Maybe nothing will come of it, but if you don't make the call, it's guaranteed nothing will happen.
M12shooter
CGN frequent flyer
- Location
- East St. Paul, mb
...and there have been fatalities. Hard to injure someone with bows, spears, snares and such...
