The Evolution of Game Law Impacting First Nations Hunters in Northwestern Ontario

Cornelius Krieghoff, [Hunters Pulling Dead Moose], 1855-1865. Library and Archives Canada, Acc. No. 1950-14-2, Box 2000813612.

Indigenous peoples have used their deep-rooted understanding of the land and wildlife to feed their families and communities for generations. However, by the end of the 19^th century, First Nations communities in Northwestern Ontario found their traditional way of life threatened by encroaching settlement and new government-imposed hunting legislation. Although early game laws contained clauses exempting First Nations hunters from the legislation, these exemptions were eventually written out, subjecting First Nations and other Indigenous hunters to provincial game legislation which would impact their traditional way of life.

The evolution of game laws was unique in Northwestern Ontario because the region remained largely unsettled and ungoverned by the Crown until the late 19th century. Although hunting laws, like closed seasons on small game and deer existed in parts of Ontario by the early 19th century, hunting in what is now Northwestern Ontario remained largely unregulated until a significant portion of the region was made part of the province in 1889.[1] It wasn’t until the federal government began to negotiate treaties with First Nations communities in Northwestern Ontario, attempting to remove their land entitlement and open the area up to white settlement and development, that federal and provincial governance over the area took shape. The introduction of new settlement in the area, made possible by the westward expansion of the Canadian Pacific Railway towards the end of the 19th century, also introduced sportsmen and tourists into the Lake of the Woods and Kenora districts, which led to stricter government regulation over game laws in the region.

Under the British North America Act of 1867 the Department of Crown Lands was responsible for wildlife conservation in Ontario and had the authority to enact game and wildlife laws.[2] In response to increased hunting pressures on wildlife experienced in the late 19^th century, the Ontario government appointed the 1890 Royal Commission on Game and Fish as the province’s first permanent wildlife regulatory body to investigate the current state of wildlife in Ontario and provide recommendations to better regulate its protection. [3] After investigating the state of wildlife in Ontario, the Commission indicated that increased wildlife protections were needed to prevent hunters for exterminating animal populations and recommended a series of game law changes that were enacted under the 1892 Game Act, including a new range of closed seasons for some of the most desirable big game species, like deer, moose, and elk, new seasons for game birds, and complete hunting bans on certain species. The Commission also introduced new licence requirements for non-residents and established a system of game overseers to enforce game laws and penalties, which included fines, confiscation of property, and even imprisonment.[4] Despite these regulations, overall, animal populations in the area continued to decline.

Bill 136: An Act to amend the Act for the Protection of Game and Fur-bearing Animals

The Ontario Game and Fish Commission blamed Indigenous hunters for the depleting wildlife populations, the same hunters who were dependent on wildlife for survival and who effectively conserved animal populations for generations before European colonization. Ontario Game and Fish Commission Chairmen, G.A. MacCallum, reported that he continually received complaints about the “persistent and unreasonable slaughter of game by ‘Indians.’” These attitudes towards Indigenous hunters appear to have influenced the evolution of game laws in Ontario, specifically on when they would be applied to First Nations hunters.

Game laws and their application towards First Nations hunters were inconsistent throughout the 19^th and 20^th centuries.[5] The early game laws appear to have considered hunting’s importance to First Nations communities, as they included vague clauses that exempted ‘Indians’ from the provisions of the legislation (though it was unclear who would have been considered an ‘Indian’ at the time). As Canada continued to grow, it began to impose legislation to define and control First Nations’ identities through the Indian Act. At the same time, Canada secured more crown land through treaties that defined First Nations’ land use in the treaty area. In 1873, Treaty 3 was signed in present day Northwestern Ontario. The treaty specified that the ‘Indians’ had the right to pursue hunting and fishing in the land surrendered, which could be subject to regulations from time to time.

By the late 19^th century, provincial game laws adapted to better align with treaty agreements and other legislation impacting First Nations. In 1892, the Ontario Game Act was amended to stipulate that it did not apply to “Indians or settlers” hunting for food and that it would not interfere with any treaty rights. It is unclear how these laws were enforced; however, David Calverly argues that although they possessed the right in writing, First Nations hunters “found themselves being arrested and fined, and their guns and traps confiscated for breaching the act.”[6] Ontario continued to make small changes to the Game Act throughout the 20^th century. In 1914, the clause referencing treaty rights was removed from the Ontario Game Act and instead only “Indians or actual bona fide settlers” in northern and Northwestern Ontario could be exempt from the provisions of the Act. By 1927, all hunting exemptions for First Nations hunters had been removed from the Game Act, which now defined all “Persons” affected by the Act to include “Indians.” This means that by 1927, First Nations hunters, along with other Indigenous communities, were legally subject to all game laws in Ontario, which at this time included complete hunting bans on moose and deer, bag limits, quotas, required licensing, and hunting seasons.

Being subjected to Ontario Game laws would have a significant impact on First Nations’ ways of life and livelihood. By the 1930s, there was a significant depletion in moose populations, a staple in many First Nations’ diets, which led to a ban on moose hunting in areas like Sudbury, Nipissing, Rainy River, and Kenora and limited First Nations hunters’ ability to provide moose meat for their families and communities. When moose season was open, it was restricted to just 15 days. This meant that First Nations’ hunters harvesting for subsistence would have to compete directly with sport hunters and new settlers. By 1941, moose hunting was completely prohibited in the area between Fort Frances and Kenora, forcing Indigenous hunters who traditionally used this area to hunt elsewhere. Bans and restrictions on other animals could have similar affects on Indigenous hunters in the area. Since then, game laws have evolved significantly to better align with recognized Aboriginal rights in Canada.

In 1982, Section 35 of the Constitution Act recognized and affirmed Aboriginal rights in Canada but failed to define them. This resulted in several Supreme Court cases where Indigenous hunters and fishers had to fight for their constitutional right to harvest for subsistence through cases such as R.v. Sparrow in 1990 and R.v. Powley in 2003. It was through court cases like these that Aboriginal rights were defined over time and interpreted to include “a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties.” With the recognition of these Aboriginal rights, the Ministry of Natural Resources and Forestry (MNRF) has committed to respecting these constitutionally protected rights. While conservation remains the MNRFs top priority, Aboriginal and treaty rights are considered before resources are managed or allocated elsewhere. Despite the recognition of a constitutional right to harvest, First Nations and other Indigenous hunters in Canada continue to face charges against modern harvesting legislation.

Game laws were introduced by the provincial government to aid in animal conservation. However, a closer look at the evolution of these laws reveals the negative impact this legislation had on Indigenous hunters over time through the case study of Northwestern Ontario. Although initially exempt from the provisions of these laws, First Nations were eventually faced with strict hunting regulations impacting their traditional way of life, an issue many First Nations and other Indigenous communities still struggle with today.

Jennifer Bate is a settler historian specializing in archival research and project management. She is currently a Project Manager at Know History Inc. and supports their work with Indigenous clients through report writing and litigation research.

[1] The western boundary of Ontario was heavily disputed during the 1880s. Ontario did not assume its currently boundaries until 1912.

[2] Richard S. Lambert and Paul Pross, “Renewing Nature’s Wealth: A Centennial History of the Public Management of Lands, Forests, and Wildlife in Ontario, 1763-1967,” (Toronto: Ontario Department of Lands and Forests, 1967): 449.

[3] David Calverley, “Who Controls the Hunt? Ontario’s Game Act, The Canadian Government and the Ojibwa, 1800-1940.” Thesis, School of Graduate Studies and Research, University of Ottawa, 1999, 28.

[4] Calverley, “Who Controls the Hunt?” 3.

[5] Provincial game legislation referencing “Indians” only applied to First Nations who were “Treaty Indians” or “Status Indians,” and did not include other indigenous groups such as Métis or non-status Indians.

[6] Calverley, “Who Controls the Hunt?” 3.