WINNIPEG — The plight of moose in Manitoba is an emerging and inevitable tragedy. The cause is the constitutional requirement moose populations must be essentially destroyed before they can be managed. The ultimate effect will inevitably render worthless the right of aboriginal people to hunt moose because there will be too few to hunt. There will also be much collateral damage to the interests of non-aboriginal people as this tragedy unfolds, but aboriginal people have the most to lose.
Treaty and aboriginal rights relating to hunting are recognized and affirmed by Section 35 of the Constitution Act, 1982. These rights guarantee aboriginal people may hunt animals such as moose on unoccupied Crown land and any other lands to which they may have access.
Court decisions over the years have determined aboriginal people may hunt such animals in any manner they wish with the only constraints being issues of safety. The consequence is aboriginal people may legally hunt in ways that are illegal for anyone else. For example, they may hunt at any time of the year, day or night, with the use of modern equipment such as night-vision optics and spotlights.
They may hunt with vehicles without regard to designated trails other hunters must use, and they may kill any number of moose without restriction as to gender or age so long as the meat is for food. Meat may be given to other people holding aboriginal hunting rights but must not be sold nor given to non-aboriginal people.
Court decisions have also determined the rights of aboriginal people to hunt for food take precedence over hunting by those who don’t hold those rights. The practical effect of this is already being experienced in Manitoba as additional parts of the province are closed to licensed hunting of moose. There is no regulatory alternative to this approach.
Although there is a constitutional provision that enables aboriginal hunting rights to be constrained for conservation purposes, this may only be done after all non-aboriginal hunting has been terminated. This is how Dr. Crichton’s prediction there will be no licensed hunting of moose by 2020 might well come true. It is not because there won’t be any moose by 2020 but that there won’t be any in excess of the entitlements of aboriginal people.
Because these are constitutionally protected rights the government of Manitoba does not have the power to alter them. Manitoba is therefore limited to seeking co-operation from First Nations and Métis people to voluntarily limit the exercise of their rights.
While First Nation and Métis leaders may encourage their people to co-operate in these co-management efforts, they do not have the legal authority to restrict the exercise of hunting rights by individuals precisely because they are individual rights, not group rights.
The First Nation and Métis people living in what is now Manitoba in 1870 were harvesting moose without external restrictions. The treaties recognized that fact as a right of First Nations people and court decisions have recently done the same for Métis people.
This was entirely realistic when the treaties were negotiated. Today, there are perhaps 200,000 aboriginal people in Manitoba who have these hunting rights. With today’s technology, and growing aboriginal population, the exercise of these rights is unsustainable.
I believe it is inevitable uncontrolled hunting eventually will overwhelm moose populations in most of Manitoba, irrespective of other factors such as parasites, predators and habitat. My guess is many First Nations and Métis people understand this and can envision the impending tragedy but are powerless to control what the Constitution says can only be regulated when there is a conservation crisis.
By that time it will be too late.
This will truly be a "tragedy of the commons" where the rational acts of individuals eventually destroy the common interests.
» Brian Ransom, a minister in the Progressive Conservative government of Sterling Lyon, is a consultant to First Nations on Manitoba Hydro issues. This article also appeared in the Winnipeg Free Press
Republished from the Brandon Sun print edition January 22, 2014