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Hunters bag rights in appeal court


Brent Mudry, Windspeaker Contributor, Vancouver







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In a rare move, B.C.'s highest court decided to hear seven separate fishing and hunting appeals in conjunction with the Delgam Uukw land claims appeal.

The Court of Appeal judgments presented a mixed bag of results. Long-overdue victories were scored for hunting rights, but were denied for fishing rights.

"We got hammered - this has pushed us back to the high water mark," said Don Ryan of the Gitskan Wet'suwet'en.

The cases are shown here in brief.

Deer hunting

Willie Alphonse Jr. scored the strongest win when the five-judge court unanimously ruled that he had an aboriginal right to hunt, off-reserve and out-of-season.

The Shuswap chief of the Williams Lake band, was charged with the April 3, 1985 killing of a mule deer out of season. He shot the deer for food for his family and other band members. The area deer population is healthy and stable, with an annual kill that year estimated at double the legal kill of 1,175. {The action lay at the core of his Indianness, namely the act of killing the deer and keeping its carcass," noted Judge Douglas Lambert

Elk Hunting

Harry Dick of the Ahaminaquua band on Vancouver Island won a 5-0 decision supporting the aboriginal right to shoot a protected species. Dick's son had shot a Roosevelt elk on July 10, 1987, without a permit.

More than 7,000 trophy hunters vie for scarce permits each season; only 2,200 to 2,800 of the elk exist. Citing the landmark Sparrow decision, Judge Alan MacFarlane noted, "the conservation by lottery scheme appears to disregard aboriginal hunting rights, and it makes no attempt to access or allocate priorities."

Fishing rights

Stoile fish sales

In a 3-2 decision, the high court rejected the right of fish sale for the livelihood of the Stoile peoples on the lower Fraser River. Lambert and Judge Henry Hutcheon voted in favor of the fishing rights case.

Dorothy Marie Van der Peet was re-convicted for selling ten sockeye salmon for $50 on September 11, 1987 near Chilliwack. In the majority appeal opinion, MacFarlane noted "Persons of aboriginal ancestry must be subject to the same rules as other Canadians who seek a livelihood from a resource."

Lambert supported Indian food fish sales for a "moderate livelihood" while Hutcheon strongly stated "the Crown failed to prove extinguishment of rights."

Sale of Herring Roe

In a 4-1 decision, the high court rejected the appeals of William and Donald Gladstone, convicted for the harvest and sale of valuable herring roe on April 28, 1988.

The Heilsuk nation brothers from Waglisha, in the Bella Bella area, were arrested with 4,200 pounds of roe, seized and sold for $144,000. In the "allocation of resources" case the band holds a commercial trade license, but individual members are entitled only to Indian Food Fishing licenses.

Lambert, the lone dissenter, declared the fishery regulations to be an "unjustified infringement" on the Gladstone's aboriginal rights. Hutcheon, in the majority opinion, noted the trial judge had stated "the surreptitious manner of the attempt to sell was similar to manner in which criminal transport and sell narcotics."

Sale of Fish

The high court ruled 2-1 to reject the abofriginal right to fish sles for the Sheshaht and Opetchesaht bands at the Somass River near Port Alberni or Vancouver Island. From Septmeber 7 to 23, 1986, the smokehouse bought, processed and resold 105,000 pounds of chinook salmong from band members, netting a profit of $.08 per pound.

Lambert, the sole dissenter, noted the lower court judge had stated that "In 1974 the Shechuht were the richest people in B.C.,;' each Indian could gain $1000 per year from their scaling and fishing grounds." The infringement on aboriginal rights was not justified by conservation or any other needs," Lambert noted.

"The Somass River was not included on the reserve", Wallace noted for the majority. Agnes Sam, 92, had testified that her grandfather went to Victoria to claim the Somass river "because we lie there." She sold fish to the smokehouse to buy canning jars and little things for her grandchildren. Her only other source of income is her old age pension.

Squamish River Fishing

All five judges voted to restore the convictions of three members of the Squamish Indian Band. Allan Frances Lewis, Allan Jacob Lewis and Jacob Kenneth Lewis were arrested on Octobver 6, 1986, for net fishing on the Squamish River next to the Cheakamus Reserve. Their convictions after a nine day trial, were later overturned by a county court judge who ruled that the center of the river was the technical boundary.

Wallace declared the high water mark was the corret line. The high court accepted evidence that "the Squamish Tribve has inhabited the Squamish Valley from time immemorial" and that "the principle and staple food was salmon."

Nikal: Bulkley River Fishing

In a similar case, Jerry Benjhamin Nikal lost a 3-1 decisioln with Lambert and Hutcheon dissenting, ajnd was conficted for gaff fishing on the Bulkley River at Morisstown in the heart of Gitskan Wet'suwet'en lands. Federal fisheries officers charged Nikal in July 1986 for fishing without a permit. Nikal won acquittals in both the provincial ajd Supreme Court but the Crown appealed again. Macfarlane, in the majority opinion, noted "if Mr. Nikal had obtained (without cost) an Indian Food Fish License, he would have been permitted to catch salmon solely for food for himself and his family during the period July 20 to September 1."