Governance By-law Samples: Sample Hunting By-law

Sample by-laws - Caution

These sample by-laws are suggestions only and we encourage you to adapt them so that they reflect the local conditions or concerns of First Nations. It is recommended that, if you are developing a by-law, a draft by-law be submitted to the By-law Advisors for comment. The By-law Advisors and yourselves will then be in a position to discuss and arrange any concerns or problems the by-law may have, potentially avoiding the risk of having the by-law disallowed under section 82(2) of the Indian Act.

Please note that any submission of a by-law based on our sample does not automatically ensure that the by-law will come into force. The by-law must be considered in its entirety before such a determination can be made. Neither the Minister nor this department can guarantee the future validity or enforceability of by-laws. These are ultimately issues for enforcement agencies and the courts to decide.

Address and Contact Numbers

By-law Advisory Service
Aboriginal Affairs and Northern Development Canada
Registration, Revenues and Band Governance
Room 1834, 10 Wellington Street,
Ottawa, Ontario K1A 0H4
FAX (819) 997-0034

By-law Advisory Service 997-9801

Sample Hunting By-law

Please note that this is a sample by-law only. Any submission of a by-law which is based upon this sample does not automatically ensure that the by-law will be allowed to come into force. A Band by-law must be considered in its entirety before such a determination can be made. Neither the Minister, nor the Department of Indian and Northern Affairs guarantees the future validity or enforceability of a by-law which is based upon this sample.

BY-LAW NO. 19__.__
of the Band
A BY-LAW FOR THE PRESERVATION, PROTECTION
AND MANAGEMENT OF FUR BEARING ANIMALS
AND OTHER GAME

or
The Band
By-law Number
BEING A BY-LAW TO REPEAL AND REPLACE
BY-LAW NO.____
ENACTED ON THE________DAY OF________19___

WHEREAS the Council of the Band desires to make a by-law governing the preservation, protection and management of fur bearing animals and other game on the reserve, matters ancillary thereto, and a penalty for the violation thereof;

AND WHEREAS the Council of the Band has the power to make such by-law pursuant to paragraphs 81(1)(o), (q) and (r) of the Indian Act;

AND WHEREAS it is considered to be expedient and necessary to provide for the preservation, protection and management of fur bearing animals and other game on the reserve;

AND WHEREAS the Council of the Band did enact By-law Number on the_____day of______, 199____ , and wishes to repeal the said By-law Number and replace it with this by-law; (this recital should only be included if you are repealing an already existing by-law)

NOW THEREFORE the Council of the Band hereby makes the following bylaw:

Short Title

1. This by-law may be cited as the "Hunting By-law on the _________________ Indian Reserve".

Interpretation

2. In this by-law,

"Band" means the Band;

"Council" means the Council, as defined in the Indian Act, of the Band;

"fur bearing animal" includes a bear, fox, beaver, mink, otter, fisher, marten, muskrat, skunk, racoon, weasel, bobcat, lynx, coyote, squirrel and varying hare;

"game" means any vertebrate animal or bird, excluding fish, amphibians and reptiles, that is wild by nature, and includes deer, moose, elk, caribou and fur bearing animals;

"game bird" means (include list of birds) and includes those birds listed in the Migratory Birds Convention Act;

"game officer" means a game officer appointed under section 3, and includes an officer who has been designated by the Council, pursuant to section 4, to administer and enforce this bylaw; it also includes a police officer, police constable or other person charged with the duty to preserve and maintain the public peace, and a by-law enforcement officer or any other person appointed by the Council for the purpose of maintaining law and order on the reserve pursuant to By-law No. Relating to Law and Order;

"hunting" means taking, wounding, killing, chasing, pursuing, worrying, capturing, following after or on the trail of, searching for, shooting at, stalking or lying in wait for any game, whether or not the game is subsequently captured, wounded or killed;

"reserve" means the reserve of the Band and includes the Band's Reserves No. and No._____.

"snare" means any device for the taking of game whereby it is caught in a noose;

"take" includes the capturing or the taking into possession of game, whether dead or alive;

"trap" means any spring trap, gin, deadfall box or net used to capture game;

"trapping" means taking game by a snare or trap.

Administration

3.(1) The Council may, by resolution, appoint one or more game officers to perform such functions in respect of the administration and enforcement of this by-law as are prescribed herein.

(2) The Council may, in the resolution, provide for reasonable remuneration to be paid to a game officer appointed under subsection (1).

4. The Council may designate any officer to perform such functions in respect of the administration and enforcement of this by-law as are prescribed herein to be performed by a game officer.

General Prohibition on Hunting and Trapping

5.(1) No person shall engage in hunting or trapping within the reserve except as permitted by this by-law.

(2) Notwithstanding anything in this by-law, a person may, where necessary for the prevention of

  1. damage to private property, livestock, or other domestic animals, or

  2. injury to persons on the reserve, whether or not they are members of the band, hunt, take, trap, snare, shoot or kill game at any time if the incident is immediately reported to the band council, and such game or carcass is surrendered to the nearest game officer.

Hunting and Trapping by Band Members

6. Subject to the provisions of this by-law, members of the Band may engage in hunting and trapping within the reserve at any time.

Hunting and Trapping Permits

7.(1) A person who is not a member of the Band may apply to the Council for a permit to hunt or to trap game within the reserve.

(2) The application shall specify:

  1. the name & address of the applicant;

  2. the applicant's age;

  3. whether the applicant has attended a hunting safety course;

  4. the location for which the permit is sought;

  5. the species of game for which the permit is sought;

  6. the type of hunting or trapping equipment to be used;

  7. whether the applicant has any previous convictions under federal or provincial hunting regulations; and

  8. such other information as is required to enable the Council to address the considerations set out in subsection (3) and the criteria set out in subsection (4).

(3) In determining whether or not a permit should be issued, the Council shall take into consideration

  1. whether or not the applicant is a resident of the reserve;

  2. whether or not the applicant has previously held a permit and, if so, has complied with the provisions of the permit and this or any previous by-law with respect to hunting and trapping;

  3. the extent of the contribution, if any, the applicant makes to the reserve community;

  4. the number of permits already issued for the species of game for which the permit is sought; and

  5. whether or not there is sufficient game of that species in the reserve at the time to meet the needs of Band members and permit holders without detrimentally affecting the species.

(4) Where the Council determines that

  1. the issue of a permit will not detrimentally affect the species of game in respect of which the permit is sought; and

  2. the applicant is a suitable person to have a permit to hunt or trap on the reserve,

* the Council may or will issue a written permit authorizing the person to hunt or trap on the reserve, specifying therein the time, place, type of equipment, bag limit, size limit and species of game that may be hunted or trapped by the person holding the permit.

(5) The fee for a permit is as follows: [insert here fee schedule for categories of permit].

(6) A permit issued pursuant to this section is non-transferrable.

8. A permit issued under this by-law is invalid:

  1. if it is not signed by the person to whom it is issued,

  2. if the date of expiry has been omitted, removed or defaced.

9.(1) A person hunting or trapping under the authority of a permit issued pursuant to section 7 shall have the permit on his person while hunting or trapping within the reserve.

(2) A game officer may at any time require any permit holder who is hunting or trapping within the reserve to produce his permit.

10. The Council may, after a notice and hearing, cancel the permit of any person where it is satisfied:

  1. that the person has contravened the terms of the permit or of this by-law, or

  2. that the continuation of the permit would be detrimental to the preservation or protection of fur bearing animals or other game on the reserve.

11. The holder of a permit obtained by any false or misleading statement or information made or given in respect of any information required for the issuance of the permit shall be deemed to be the holder of a void permit and the holder may be prosecuted in the same manner and with the same effect as he could be prosecuted if he were not the holder of a permit.

Hunting and Trapping by a Person Under the Age of Sixteen Years

12.(a) A non-band member who is under the age of sixteen years may only hunt and trap without a permit if accompanied by and under the supervision of a Band member or a person holding a permit issued under section 7.

(b) A non-band member who is under the age of 16 years must comply with time restrictions, place, type of equipment, bag limit, size limit, and species of game that may be hunted as part of the supervising permit holder's allowances which are granted pursuant to section 7(4).

Hunting Season

13. No permit shall be issued to authorize hunting for [list species of game] between ______ and ______________of any year.

Trapping Season

14. No permit shall be issued to authorize the trapping of [list species of game] between and of any year.

Prohibited Zones

15. No person shall at any time engage in hunting within the following areas of the reserve: [insert description of prohibited area which is clearly marked or identified].

16. No person shall at any time engage in trapping within the following areas of the reserve: [insert description of prohibited area which is clearly marked or identified].

Trapping Equipment

17. The equipment used by any person for trapping game shall meet the following standards: [insert description of approved equipment - if adopting provincial legislation or regulations please insert itemized list].

18. No person shall trap game using the following equipment: [insert description of any prohibited equipment - if adopting provincial legislation or regulations please insert itemized list].

Hunting with Firearms

19. A firearm of the type listed below shall not be used by any person for hunting a species mentioned opposite: [list here any firearm whose use is prohibited in hunting a particular species of game].

20. No person while engaged in hunting shall discharge a firearm within one hundred and fifty metres of

  1. a residential building,

  2. a public road or bridge, or

  3. a game preserve or bird or fish sanctuary.

21. No person while engaged in hunting shall discharge a firearm

  1. on or from a public road,

  2. across a public road, or

  3. from a vehicle, aircraft or power boat.

22. No person while engaged in hunting in the Reserve shall conceal his identity or wear a mask or disguise.

23. No person while engaged in hunting or trapping or while going to or returning from a hunting camp, or while in a locality that game usually inhabits or in which game is usually found, shall not have a firearm in their possession, unless it is unloaded and encased, between one half-hour after sundown and one half-hour before sunrise.

24. No person while engaged in hunting shall have a loaded firearm in his possession while he is under the influence of alcohol or a drug.

25. Every person is guilty of the offence of hunting carelessly who, being in possession of a firearm for the purpose of such hunting, discharges or causes to be discharged or handles the firearm without due care and attention or without reasonable consideration for person and property.

26. No person shall use any poison, explosive or deleterious substance for hunting purposes.

27. No person shall use any device which connects a firearm to a trap or to a remote control or delayed-action mechanisms or which causes a firearm to discharge without the hunter himself pressing upon the trigger of such firearm.

Protected Species

28. No person shall at any time engage in the hunting or trapping of the following species: [list here any species to be protected].

29.(1) The Council may impose a temporary ban or restriction on the hunting or trapping of any species not mentioned in section 21, by giving notice in accordance with subsections (2) and (3).

(2) Notice of the ban or restriction shall be posted not less than 24 hours prior to the ban or restriction coming into force,

  1. in conspicuous places in areas of the reserve in which hunting or trapping is engaged in; and

  2. in the office of the Band Council.

(3) The notice shall specify the date and time the ban or restriction is to come into force and to cease, and the particulars of the ban or restriction imposed.

(4) No ban or restriction imposed under this section shall remain in force for a period of more than fourteen days, unless a further ban or restriction is imposed and further notice is given in accordance with subsections (2) and (3).

Conservation

30. A person shall not

  1. disturb, destroy, injure, gather or take the nest or eggs of any game bird;

  2. disturb, destroy or injure the shelter or habitat of any game.

31.(a) A person shall not cut, break or destroy a beaver house or beaver dam, except where the cutting, breaking or destroying is necessary to prevent damage to the property of that person.

(b) Pursuant to subsection 31(a), a person is required to give notice and to the Band Council and obtain their approval prior to destroying such a dam.

Rules of Hunting and Trapping

32. No person shall hunt a moose, deer, elk or caribou by means of a trap or snare.

33. No person shall kill or attempt to kill any species of game by the use of poison.

34. No person shall

  1. hunt game in any day later than one-half hour after sunset or earlier than one-half hour before sunrise; or

  2. hunt game by means of or with the assistance of a light.

35.(1) No person shall hunt moose, deer, elk, caribou or any fur bearing animal by means of, or with the assistance of, a dog or when accompanied by a dog.

(2) Subsection (1) does not apply where the hunting of game with a dog is necessary for the prevention of

  1. damage to private property, or

  2. injury to occupants of occupied land,

if the incident is reported, and the carcass is surrendered, immediately to the nearest game officer.

36. No person shall hunt game using a crossbow, hand-gun, fully automatic weapons and those weapons using projectiles smaller than a .23 calibre [include any other prohibited weapon].

37. No person shall use an aircraft, sail boat, power boat or motorized vehicle in connection with hunting, except as a means of transportation before and after any hunting activity.

Enforcement

38. A person who

  1. fails to observe or who otherwise contravenes any provision of this by-law or any ban or restriction imposed hereunder, or

  2. resists or wilfully obstructs a game officer in the performance of any duty or in the exercise of any power under this by-law,

commits an offence.

Penalty

39. A person who commits an offence under this by-law is liable on summary conviction to a fine of not more than _________ (specify an amount not exceeding $1,000) or to imprisonment for a term of ___________ (specify a length of term which does not exceed 30 days), or to both a fine and imprisonment.

40. Should a court determine that a provision of this by-law is invalid for any reason, the provision shall be severed from the by-law and the validity of the rest of the by-law shall not be affected.

41. This by-law comes into force 40 days after the date of mailing to the Minister of Indian Affairs and Northern Development as required pursuant to section 82 of the Indian Act.

Repeal

( The following section is to be incorporated into this by-law only if you already have a by-law regulating the preservation, protection and management of fur bearing animals and other game in place for your community that you wish to repeal.)

42. By-law number enacted on the day of , 19 , and being a By-law to regulate the preservation, protection and management of fur bearing animals and other game, be and the same is hereby repealed.

THIS BY-LAW IS HEREBY made at a duly convened meeting of the Council of the Band this _________ day of _________, 19_________ .

Voting in favour of the by-law are the following members of the Council:

___________________________
(Member of the Council)

___________________________
(Member of the Council)

___________________________
(Member of the Council)

___________________________
(Member of the Council)

___________________________
(Member of the Council)

___________________________
(Member of the Council)

being the majority of those members of the Council of the Band present at the aforesaid meeting of the Council.

The quorum of the Council is ____ members.

Number of members of the Council present at the meeting: ____.
I, Chief/Councillor of the Band, do hereby certify that a true copy of the
foregoing by-law was mailed to the Minister of Indian Affairs and Northern Development at
the ______________ office of the department pursuant to subsection 82(1) of the Indian Act,
this day of ____, 19 ____ .

____________________
(Witness)

________________________
(Chief/Councillor)

 

NOTES

General

It is important to appreciate that the scope of this by-law is necessarily narrower than provincial statutes regulating game and hunting practices. Hunting and trapping is regulated in this by-law as a necessary element of the preservation, protection and management of game. It is not regulated as an activity of itself. For this reason, the provisions relating to the use of firearms, safety procedures while hunting, hunter training etc. can only be covered in the by-law if, and to the extent, the provisions can be related to the conservation of game.

Section 2

This is a list of basic definitions. It may be necessary to include additional definitions or to modify certain of them, in adapting this sample by-law to the needs of a particular Band.

Sections 3 and 4

The Band Council may appoint game officers, or may designate other law enforcement officers to be game officers for purposes of this by-law. The Band Council may elect to do both. The sample by-law contemplates providing remuneration only to a game officer appointed as such, rather than to an officer designated to perform the duties of a game officer.

Section 5

Section 5 imposes a general prohibition on hunting and trapping, except as permitted in the by-law, and except where necessary for the prevention of damage to property, livestock, other domestic animals, or injury to persons.

Section 6

Band members are not required to obtain a permit to hunt or trap. As long as they comply with the by-law, they are free to hunt and trap at any time. This authority is subject to federal laws, such as the Migratory Birds Convention Act, R.S.C. 1985, c. M-7. However, the permission to hunt and trap on the reserve would override provincial game laws that were inconsistent with the by-law or that dealt with a matter covered in the by-law.

Section 7

Section 7 authorizes the Council to issue permits to persons who are not members of the Band. The by-law does not provide a form for the permit, but the form that is developed in practice must contain certain information and stipulations referred to in subsections 7(2), (3) and (4). The fee to be established in subsection (5) can only be with a view to defraying the costs of administering the by-law.

It should be noted that the decision whether or not to issue a permit remains discretionary, even though there are criteria set down for the Council to consider when making a decision. Essentially, the Council must address two issues: first, is it compatible with conservation policies and practices to issue the permit? Second, is the applicant a suitable person to be issued a permit?

The second issue is the more difficult and potentially the more controversial. Given the importance of hunting and trapping to Band members, the Council may wish to severely restrict the issue of hunting and trapping permits to persons who are not Band members. On what basis can a Band Council allow one person to hunt and trap, but not another, where only a limited number of permits are available? Given that the subject matter is a limited Band resource, that access to the resource must be looked upon as a privilege, not as an entitlement, and that courts have recognized fishing, hunting and trapping as going directly to "Indianness", it is likely that the law would tolerate a significant amount of discretion to be exercised by a Council in issuing permits. The sample by-law has been drafted on that assumption.

It should also be pointed out that in the event the volume of applications and permits issued is such that it is impractical for the Council to administer the issue of permits, the by-law could be drafted so as to give this responsibility to a game officer. In that event, it would be necessary to draft even tighter controls over the discretion of the game officer in issuing permits, and to provide an appeal mechanism to the Council where a permit has been refused or cancelled by a game officer.

Sections 13 and 14

The actual by-law should prescribe a more complete regime with respect to hunting and trapping seasons than is provided in the sample.

Sections 15 and 16

In this portion of the by-law a Band Council can set out areas of the reserve in which hunting and trapping are restricted. This should be consistent with the Band's zoning by-law

Sections 17 and 18

A Band may or may not wish to include provisions to regulate trapping equipment.

Sections 19 to 27

Although the scope of section 81 of the Indian Act. does not contemplate the general regulation of firearms, it is permissible for a Band to restrict the use of certain firearms as a means of hunting species of game. Any restrictions should be spelled out in some detail in the by-law.

Sections 28 and 29

These sections provide a means by which a Band Council may protect certain species. Any species that are intended to be protected permanently or indefinitely should be set out in the by-law. Section 30 provides an emergency power to place a ban or restriction on hunting or trapping for a short period of time. This could be used, for example, during a period in which the Band Council was proceeding to have its by-law amended.

Sections 30 and 31

These are examples of conservation provisions that could be included in the by-law. If there are other provisions a Band may wish to include, this is the portion of the by-law in which such provisions should be added.

Sections 32 to 37

These are examples of rules of hunting and trapping that can be found in some provincial game laws. There are undoubtedly many other restrictions that could be included, and some of the ones included in the sample by-law may not be appropriate for certain Bands. They give an example, however, of the kinds of provisions that could be included, and how they could be presented in a by-law.

Section 39

These penalties are fixed by section 81 of the Indian Act, and cannot be varied by the Band Council in a by-law.