BY KEITH LACEY
A Whitefish First Nations hunter who shot an elk to provide for his family has, for the second time, had a court decide his aboriginal treaty rights allowed him to hunt near his home.
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Francis Ozagawash was charged by the Ministry of Natural Resources after shooting an elk near his home on the Whitefish First Nations in October of 2000.
In what was believed to be a precedent-setting case last spring, Ozagawash told the court he shot at the animal believing it to be a moose and successfully argued he should have the right as a First Nations hunter to provide for his family.
The MNR appealed the original ruling by Justice of the Peace Ben Sinai and Monday, Justice William Fitzgerald of the Ontario Court of Justice upheld Sinai's original decision and rejected the appeal.
This case received a lot of publicity in large part because the Ontario government prohibited hunting elk in the province after helping sponsor a large-scale elk reintroduction program, which included bringing hundreds of elk from Alberta to the Sudbury region starting about seven years ago.
Paul Williams, a native lawyer representing Ozagawash from the Six Nations reserve in southern Ontario, said Canada's Constitution Act and Indian Act both protect native people from hunting to provide for their family.
The original trial proved Ozagawash was living in very modest circumstances and only hunted to provide food for himself and his family, said Williams.
Native hunting rights remain protected under treaty provisions and supercede any provincial laws, Williams argued.
Brian Wilkie, lawyer for the MNR, argued the province enacted legislation to protect the elk population and aboriginal leaders across the province actually support the ban on hunting elk.
Williams argued Ozagawash's claim he didn't know the animal he was shooting at was an elk was believable and should not factor into this decision.
Leaders from the Whitefish First Nations supported the ban on hunting elk, Wilkie argued.
The province's efforts to reintroduce elk to Northern Ontario and other parts of the province would not have become the successful venture it has if hunters were allowed to hunt them, said Wilkie.
Williams agreed most aboriginal leaders support the ban on hunting elk, but reiterated the ban shouldn't apply to a man trying to provide for his family who made an honest mistake.
Since the original ruling, there hasn't been any other incidents of First Nations hunters shooting and killing elk and the failure of the Crown's appeal won't mean it's open season for aboriginal hunters to hunt elk, said Williams.
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