Drizzt
February 19, 2003, 05:19 PM
THE LAWYERS WEEKLY
February 21, 2003
SECTION: Vol. 22, No. 39
LENGTH: 738 words
HEADLINE: N.S. court rejects bid for Firearms Act exemption for all aboriginal hunters
BYLINE: Dean Jobb
TEXT:
Halifax
A Nova Scotia Supreme Court judge has ruled that federal firearms regulations do not entitle native hunters to be automatically exempt from paying licence and registration fees for their guns.
Justice David MacAdam says there is nothing in regulations passed pursuant to the Firearms Act that requires the chief firearms officer to take into account the race of an applicant seeking a fee waiver.
The issue arose in a test case mounted by the Native Council of Nova Scotia, which represents Mi'kmaq who do not live on reserves. The appellant was Franklyn John Jesty of Truro, a game warden with the council's Netukulimkewe'l Commission, which oversees hunting and fishing by off-reserve natives.
Jesty and about 145 other natives asked to be exempted from licensing fees -$60 for rifles and $80 for all other guns, payable every five years upon renewal -and per-gun registration fees, on the basis they are "aboriginal sustenance harvesters."
Jesty, in his application, stressed his people's long tradition of hunting for "natural life pure food"to sustain their families and community.
Regulation 7 of the Firearms Regulations gives the chief firearms officer in each province a discretion to waive the fees for "individuals who require firearms to hunt or trap in order to sustain themselves or their families." The Native Council argued that aboriginal hunters, by definition, are sustenance hunters and should be exempt from fees, no matter what their income.
"From our perspective, aboriginal people don't do anything but hunt for sustenance,"Tim Miller, commissioner of the Netukulimkewe'l Commission, said in an interview. "We don't see it as a reach to say that we expect the firearms licensing regulations to respect that, and issue aboriginal people sustenance-hunter classifications of firearms licences."
But Justice MacAdam ruled the regulations did not support preferential treatment for natives, noting the words "aboriginal sustenance harvester"aren't in the act or regulations.
"The issue is whether the applicant requires the firearm to hunt or trap in order to sustain himself or herself or his or her family,"the judge wrote. Jesty "would not be entitled to a fee waiver simply because he is an aboriginal or is not an aboriginal, but rather whether, having considered all of the factors relating to his application, he requires firearms to hunt or trap in order to sustain himself or his family."
Nova Scotia has developed a policy manual that sets criteria for assessing whether an applicant qualifies for a fee waiver as a sustenance hunter. They include whether the person depends on firearms to hunt and has no alternative ways of obtaining the necessities of life.
The policy says fees should not be waived for those who hunt for sport, "for reasons of culture, heritage or tradition,"or have other means of livelihood.
While Justice MacAdam ruled against a fee waiver on the basis of aboriginality, he directed the chief firearms officer to reconsider the Jesty application because there had been no inquiry into Jesty's financial situation before the fee waiver was refused.
But Jesty's victory is a hollow one for other native hunters. Nova Scotia's chief firearms officer, Maarten Kramers, says the government takes the position the ruling does not apply to other off-reserve natives who have been assessed licence fees. "This decision applies to Mr. Jesty's application only, it does not apply to any other application. So it's not a blanket decision,"he said.
But Miller is hopeful the firearms officer will view the Jesty application as an opportunity to recognize native rights. "From [the government's] perspective, if you've got the money you're going to pay, regardless of your need to practise your cultures and traditions."
"We felt that it was important that the act and the regulations respect our community members'aboriginality, that's what we were looking for,"he added. "And the only thing that we saw that was within the existing Act and regulations was the sustenance hunter designation."
The Native Council does not rule out a fresh challenge to the fee regulations based on treaty rights or the Charter. "That's for another day,"Miller said.
February 21, 2003
SECTION: Vol. 22, No. 39
LENGTH: 738 words
HEADLINE: N.S. court rejects bid for Firearms Act exemption for all aboriginal hunters
BYLINE: Dean Jobb
TEXT:
Halifax
A Nova Scotia Supreme Court judge has ruled that federal firearms regulations do not entitle native hunters to be automatically exempt from paying licence and registration fees for their guns.
Justice David MacAdam says there is nothing in regulations passed pursuant to the Firearms Act that requires the chief firearms officer to take into account the race of an applicant seeking a fee waiver.
The issue arose in a test case mounted by the Native Council of Nova Scotia, which represents Mi'kmaq who do not live on reserves. The appellant was Franklyn John Jesty of Truro, a game warden with the council's Netukulimkewe'l Commission, which oversees hunting and fishing by off-reserve natives.
Jesty and about 145 other natives asked to be exempted from licensing fees -$60 for rifles and $80 for all other guns, payable every five years upon renewal -and per-gun registration fees, on the basis they are "aboriginal sustenance harvesters."
Jesty, in his application, stressed his people's long tradition of hunting for "natural life pure food"to sustain their families and community.
Regulation 7 of the Firearms Regulations gives the chief firearms officer in each province a discretion to waive the fees for "individuals who require firearms to hunt or trap in order to sustain themselves or their families." The Native Council argued that aboriginal hunters, by definition, are sustenance hunters and should be exempt from fees, no matter what their income.
"From our perspective, aboriginal people don't do anything but hunt for sustenance,"Tim Miller, commissioner of the Netukulimkewe'l Commission, said in an interview. "We don't see it as a reach to say that we expect the firearms licensing regulations to respect that, and issue aboriginal people sustenance-hunter classifications of firearms licences."
But Justice MacAdam ruled the regulations did not support preferential treatment for natives, noting the words "aboriginal sustenance harvester"aren't in the act or regulations.
"The issue is whether the applicant requires the firearm to hunt or trap in order to sustain himself or herself or his or her family,"the judge wrote. Jesty "would not be entitled to a fee waiver simply because he is an aboriginal or is not an aboriginal, but rather whether, having considered all of the factors relating to his application, he requires firearms to hunt or trap in order to sustain himself or his family."
Nova Scotia has developed a policy manual that sets criteria for assessing whether an applicant qualifies for a fee waiver as a sustenance hunter. They include whether the person depends on firearms to hunt and has no alternative ways of obtaining the necessities of life.
The policy says fees should not be waived for those who hunt for sport, "for reasons of culture, heritage or tradition,"or have other means of livelihood.
While Justice MacAdam ruled against a fee waiver on the basis of aboriginality, he directed the chief firearms officer to reconsider the Jesty application because there had been no inquiry into Jesty's financial situation before the fee waiver was refused.
But Jesty's victory is a hollow one for other native hunters. Nova Scotia's chief firearms officer, Maarten Kramers, says the government takes the position the ruling does not apply to other off-reserve natives who have been assessed licence fees. "This decision applies to Mr. Jesty's application only, it does not apply to any other application. So it's not a blanket decision,"he said.
But Miller is hopeful the firearms officer will view the Jesty application as an opportunity to recognize native rights. "From [the government's] perspective, if you've got the money you're going to pay, regardless of your need to practise your cultures and traditions."
"We felt that it was important that the act and the regulations respect our community members'aboriginality, that's what we were looking for,"he added. "And the only thing that we saw that was within the existing Act and regulations was the sustenance hunter designation."
The Native Council does not rule out a fresh challenge to the fee regulations based on treaty rights or the Charter. "That's for another day,"Miller said.