Under Canadian law Indigenous Peoples have the right to continue activities they engaged in before contact or before colonial powers controlled the area they inhabited.

First Nations Activities

Under Canadian law First Nations have the right to continue their practices, customs and traditions that existed before contact. The activity can have evolved over time. Hunting with weapons that did not exist is an example of a right changing over time. The present-day activity must be connected to a pre-contact activity.

Not every pre-contact activity created an Aboriginal Right. Activities that were an essential part of the group’s culture became Aboriginal Rights. The community does not need to be the only community that engaged in the activity. The community does not need to have continuously exercised the right.

Examples of rights that courts have recognized include a right to:

fish for food, ceremonial and social purposes
sell fish
hunt
harvest timber

Courts have ruled that these rights are not general rights of all First Nations. They belong to the specific group claiming them because the activity was an essential part of their culture before contact. They can be exercised over the area where they were historically exercised.

Métis Activities

Métis Peoples have the right to continue practices, customs and traditions that were integral to the Métis community in question. The period is different than the one for First Nation Activities. Although Métis communities have existed since early in the colonial period they did not exist before there was any contact with people who came to what is now Canada from other places in the world. This is why the relevant date is when colonial powers gained effective control over the area.

The Supreme Court of Canada has recognized the Métis right to hunt for food as an Aboriginal Right. Other than the period to establish the activity, all the same rules about Aboriginal Activities apply. The activity must have been an essential part of the Métis community’s culture before colonial powers controlled the area. There must be a connection between the historic activity of the community and the present-day activity. The community does not have to have been the only community that engaged in the activity and the community does not need to have continuously exercised the right.

The Supreme Court found that the connection between the activity in the past and now is more important than whether the historic community continues to exist as a present-day community.

To exercise these rights the person must:

identify as a Métis person
have ties to a historic Métis community
be an accepted member of a present-day Métis community

The Saskatchewan government only recognizes a Métis Aboriginal Right to hunt, fish and trap for food in two zones in the north of the province. In the rest of the province Métis individuals could be charged under provincial hunting, trapping and fishing laws. A charge could be defended based on a Métis right to harvest for food, but the extent of those rights is not clear right now.

Membership in the present-day Métis community can be shown by participation in the cultural activities of the community. Specifically, those activities that identify the community as a Métis one.

In Saskatchewan, courts have confirmed Métis rights to harvest for food where the person harvesting:

is a member of a regional present-day Métis community, and
has ties to the historic Métis community that lived and harvested in that region.

The Saskatchewan Court of Appeal has considered whether a claim to a broader harvesting right of all Métis people in Saskatchewan could be made. The court found that although claims for Métis harvesting rights have related to specific parts of the province, claims could be made to larger areas. The court found that a claim can be based on a person being part of a migratory Métis community that harvested in a larger part of the province or even the whole province.