Aboriginal harvesting rights to go on trial in N.W.T.

The N.W.T.’s new Wildlife Act came into effect Friday, explicitly stating people with aboriginal or treaty harvesting rights don’t require a licence or permit to exercise that right.

It’s unclear how this may affect the cases of two former Yellowknives Dene chiefs who, over a period of three months, were slapped separately with fines, one for hunting caribou, the other for harvesting firewood.

Earlier this year, Former Chief Ted Tsetta was charged under the territory’s old Wildlife Act for hunting caribou without tags.

In the past, the Yellowknives Dene and GNWT have come to an agreement on how many Bathurst herd caribou they can hunt. Last year they were given 150 tags. In 2014, the two sides couldn't come to an agreement.

The Yellowknives Dene said, because there was no agreement, that all they needed was their treaty card to hunt caribou. But the territorial government went ahead and issued tags to the Yellowknives Dene anyway. The First Nation says it threw the tags out because to them, the agreement had expired.

The act now makes it clear that an aboriginal person has a right to harvest wildlife in the N.W.T. in their traditional area. Had the new Wildlife Act had been in place a year ago, would things be different for Tsetta?

Does the Forest Management Act need updating, too?

Another former Yellowknives Dene chief, Fred Sangris, was given a ticket after a wildlife officer found he was cutting firewood on the Ingraham Trail, east of Yellowknife, without a permit.

Sangris was charged under the N.W.T. Forest Management Act.

“I’m not going to back down,” Sangris says. “I’m going to continue to hunt trap and cut wood. I’m going to take my grandkids out there to the same spot and teach them how to cut wood. I’ll teach them about their treaty rights.”

It was nearly a year ago that Sangris had his run in with a wildlife officer on the Ingraham Trail near Dettah. When the officer asked him if he had a permit to cut wood, Sangris said he gave them an earful on aboriginal treaty rights. They gave him a fine anyway.

“He had no respect for what I was telling him,” says Sangris. “I want him to understand that he overstepped his authority. I’m treaty.”

Under the territory's Forest Management Act "No person shall cut timber, use timber, transport timber ... unless authorized by a permit or licence." Those permits can be picked up at offices throughout the territory, and they're free.

However the Act also states, right at the beginning, “Nothing in this Act or the regulations shall be interpreted so as to affect aboriginal rights.”

Sangris says he was only planning on taking four or five trees. He says the officer charged him before he cut any of them.

Sangris say he has been cutting firewood in that area without a permit for 40 years. He says his ancestors have doing been it for centuries.

Aboriginal right to harvest wood

Steven Cooper is a lawyer who's worked extensively in the N.W.T. and Nunavut. He's not involved in this case, but says he's puzzled by the Sangris woodcutting charges.

"We can only speculate as to why the GNWT is doing what they're doing. Maybe it's that they want to see if devolution has given them some magical powers," Cooper says.

The right of aboriginal people in Canada to harvest firewood has been debated in courts of all levels. Perhaps the most famous decision came in 2006. That's when the Supreme Court ruled on two New Brunswick cases that aboriginal people have the right to log Crown lands for personal use.

Darrell Gray, who is Mi'kmaq, was originally charged in 1999 for taking maple trees from Crown lands near three reserves. Clark Polchies and Dale Sappier, both Maliseet, were charged two years later for harvesting trees on Crown land without a licence.

The two cases were so similar the Supreme Court grouped them together. The judges unanimously ruled that both Mi'kmaq and Maliseet people logged wood on those lands long before Europeans arrived in North America. They used the wood for shelter, transportation, tools and fuel.

The high court judges decided the three men were exercising their aboriginal rights, not stealing.

"A practice undertaken for survival purposes can be considered integral to an aboriginal community's distinctive culture," the judges wrote in their summary.

"If the government of the N.W.T. would take a closer reading of that decision I think they would realize that this is really a misstep on their part,” Cooper says.

“They seem to be wasting a lot of time, energy and public resources pursuing something that I think in these cases has already been decided based on a Supreme Court of Canada decision."

What’s next?

The territorial government says it can't comment on the cases because they're before the courts.

Sangris says the charges started a war between the territorial government and the Yellowknives Dene.

“Our relationship is soured. It’s really bad now.”

Sangris says the feud between the territorial government and the Yellowknives Dene over harvesting rights won’t end with the upcoming trials.

“They’re trying to nail down any Yellowknives Dene,” says Sangris. “They managed to nail down big fish like us.That’s what they wanted. They don’t like that we have special rights.”

Both the men are facing charges in territorial court. If they lose, the men can appeal the decision in the N.W.T Court of Appeal. After that, they can apply to have their cases heard in the Supreme Court of Canada.

The men say they’re going to fight for as long as it takes to have their right to harvest recognized.

“I expect every man, woman and child with treaty to stand up with me and assert their rights,” says Sangris.