Harvesting Policy
Interim Enforcement Policy
May 28, 1991
Amended: Pursuant to R. vs. Perry (1996)
INTERIM ENFORCEMENT POLICY
The
Ontario Government, in consultation with the Government
of Canada, is committed to negotiating arrangements
as soon as it is possible with aboriginal people and
to enacting appropriate legislation with respect to
their harvest of wildlife and fish. In the interim,
recognizing the impact of the Supreme Court of Canada
decision in R. v. Sparrow and other judicial decisions,
the Government of Ontario wishes to minimize the number
of instances where aboriginal people are in conflict
with the Government of Ontario in the application of
the Game and Fish Act, the Fisheries Act, the Migratory
Birds Convention Act and the regulations enacted pursuant
to those Acts, consistent with public safety and conservation
objectives. Within this framework of objectives and
subject to any constitutional or other legal impediment,
the following detailed guidelines are effective immediately.
APPLICATION OF POLICY
1. An aboriginal person who identifies himself or herself
as such, harvesting or transporting wildlife or fish
as food for personal consumption and for social and
ceremonial purposes, shall not be subject to enforcement
procedures except as set out below.
1.
Throughout the province this policy applies to an aboriginal
person harvesting wildlife or fish for personal consumption
or social or ceremonial purposes in the area which was
the subject of the treaty under which he or she is entitled
to benefits. In addition, where First Nations have a
tradition or harvest beyond the boundaries of such treaty
areas or where treaties do not explicitly recognize
traditional harvesting rights, this policy will apply
within areas in which they have a tradition of such
harvest. Boundaries of such traditional harvesting areas
will be clarified through future negotiated agreements.
In the interim, best efforts should be made to outline
traditional harvesting areas, for the purposes of this
policy only and without prejudice to future negotiations
between First Nations and the provincial government,
through discussions between the Provincial Government
and representatives of Ontario First Nations. A model
for these discussions might include the discussions
occurring under the auspices of the Indian Commission
of Ontario.
RESTRICTIONS
ON APPLICATION OF
POLICY
The policy set out above will not apply in the following
circumstances:
(a)
Where an aboriginal person is hunting in an unsafe manner.
The following examples of activities could be consider
to be unsafe in certain circumstances:
(i)
discharge of firearms from or across the traveled portion
of a roadway, or in Southern Ontario, discharge of firearms
from or across the right-of-way portion of a roadway;
(ii)
possessing a loaded firearm in a vehicle or moving vessel;
(iii)
discharge of a firearm from a vehicle or moving vessel;
(iv)
hunting or possessing an unencased firearm at night,
although not where expressly permitted under provincial
and federal legislation and the regulations enacted
pursuant to those Acts;
(v)
careless hunting;
(vi)
hunting within an unsafe distance from authorized forestry
or mining operations while they are in progress.
(b)
Where wildlife or fish are taken for commercial purposes.
Wildlife or fish taken or transported by an aboriginal
person solely for the purpose of personal consumption
or social or ceremonial purposes, or for barter in kind
of wildlife or fish within or among First Nations or
aboriginal communities, will not be considered to be
taken for commercial purposes.
(c)
Where wildlife or fish are taken in a manner which will
put conservation objectives at risk. The following examples
of activities could be considered to put such objectives
at risk:
(i)
the destruction or harmful alteration of fish or wildlife
habitat;
(ii)
in certain circumstances, fishing in fish sanctuaries
or waters which are closed at all times of the year,
or hunting in waterfowl sanctuaries;
(iii)
the taking or possession of rare, threatened or endangered
species as outlined in appendix 1;
(iv)
the taking of wildlife or fish in quantities or in circumstances
which will put conservation objectives at risk. Such
circumstances might include the taking of spawning fish
or the taking of wildlife while they are nursing their
young;
(v)
the wilful waste or spoilage of wildlife or fish.
(d)
where hunting or fishing occur on privately owned or
occupied land, which is so posted or fenced or is visibly
occupied, without the express permission of the owner
or occupier.
PERMISSION
REQUIRED AND DECISIONS REGARDING ENFORCE-MENT RELATING
TO HARVEST OF WILDLIFE AND FISH FOR COMMERCIAL PURPOSES
3.
(a) The written permission of the Deputy Minister will
be required before planned enforcement procedures, including
inspection of commercial establishments, search warrants
and special investi-gations, are undertaken in respect
of the harvest, transport, sale or exchange of game
and fish for commercial purposes carried on by an aboriginal
people. The existence of a right to harvest game and
fish for commercial purposes will be a component of
the determination of whether permission is given.
SCREENING
PROCESS
3.
(b) Subject to the intervention of the Attorney General,
the normal screening process of all alleged native persons
violations will also continue to apply as outlined in
Appendix II. Before a decision is made to proceed with
charges, the Chief, or designate, of the affected First
Nation shall be consulted in a timely fashion, and the
appropriate Ontario aboriginal treaty and political
organization will be notified.
PRELIMINARY
CONSULTATION
3.
(c) MNR officials will contact the Chief, or designate,
of a First Nation to discuss perceived concerns with
respect to the harvesting of wildlife and fish as they
start to emerge.
STRUCTURE
AND MANDATE OF COMMITTEES
3.
(d) A First Nations/Ontario Conservation Committee,
composed of representatives from Ontario, including
the Deputy Minister of Natural Resources, as well as
representatives from Ontario aboriginal treaty and political
organizations, will be established immediately upon
the adoption of this policy with the following mandate:
(i)
to meet quarterly to discuss the decisions to proceed
with charges of the past quarter of the Deputy Minister
of Natural Resources, as referred to above, and
(ii)
to review the effectiveness of this interim enforcement
policy and recommend changes to this policy if deemed
required.
(e)
First Nations/MNR Conservation Regional Committees,
composed of representatives from MNR, including the
Regional Director, as well as representatives from the
regional aboriginal treaty and political organizations,
will be established immediately upon adoption of this
policy with the following mandate.
(i)
to give direction on a regional basis as to which activities
should be deemed to put conservation objectives and
public safety at risk, which will involve the identification
and discussion of conservation objectives, and to give
direction where policy variation regarding public safety
restriction are deemed to be required due to regional
variation;
(ii)
to discuss the necessity of existing and future fish
sanctuaries and the closure of waters;
(iii)
to discuss the rare, threatened and endangered species
of the region;
(iv)
to discuss those areas of lands, and related land values
within the region, which require special protection
due to their nature (e.g. Areas of Natural and Scientific
Interest and Nature Reserves).
PROVINCIAL
PARKS
4.
Provisions of provincial or federal legislation, or
the provisions of a treaty, which concern the harvest
of wildlife and fish by an aboriginal person in Provincial
Parks shall continue to apply, unless otherwise provided
for by a negotiated agreement between the Provincial
Government and a First Nation. Where a First Nation
has entered into negotiations with the Provincial Government,
the written permission of the Deputy Minister of Natural
Resources will be required before planned enforcement
procedures regarding the harvest of wildlife and fish
by members of that First Nation in the Provincial Park
under discussion will be taken.
FORCE
OF THIS POLICY
5.
This policy replaces the former Guidelines to Follow
When Screening native Person Violations with regard
to hunting and fishing. This policy shall not be interpreted
so as to make its application more restrictive on the
harvesting of wildlife and fish by aboriginal people
than was the case under former MNR policies and guidelines.
OPERATION
OF THIS POLICY
6.
This interim enforcement policy is to apply until it
is superseded by changes to this policy arising from
3(d)(ii) and/or negotiated agreements and/or appropriate
legislation.
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