B.C. First Nation can hunt at night: Supreme Court
December 21, 2006 - CBC News
Two aboriginal men from British Columbia have the right to hunt deer at night with lights, the Supreme Court of Canada ruled Thursday.
In a 4-3 decision, the court sided with Ivan Morris and Carl Olsen, members of the Tsartlip First Nation of Vancouver Island.
The men had been convicted in a provincial court of hunting at night by flashlight, a practice that is illegal under B.C.'s Wildlife Act.
But the Supreme Court said the men's treaty rights, in this case, prevail over provincial law. The court overturned the convictions.
The four judges who ruled in favour of the men said that the North Saanich Treaty, signed in 1852, allows modern Tsartlip people to hunt using traditional methods.
And Tsartlip people traditionally hunted at night using lights, the judges said.
Originally, the Tsartlip people would have used torchlight, bows and arrows, but their equipment must be allowed to evolve, the judges said.
"And the use of guns, spotlights and motor vehicles reflects the current state of the evolution of the Tsartlip's historic hunting practices," the judges wrote in a summary of their decision.
In the narrow decision, the three dissenting judges argued that night hunting is dangerous and the right to hunt unsafely is not protected by the treaty.
Olsen and Morris were charged in 1996 after they fired five shots at a decoy deer set up by conservation officers to catch people hunting illegally. Olsen and Morris found the deer by flashlight.
After the men lost their case in a provincial court and in the B.C. Court of Appeal, they took it to the Supreme Court. The high court heard their appeal last year.
Decision renews night hunting debate
Lawyers for the Tsartlip say Thursday's ruling by the high court means other aboriginal people should be allowed to hunt at night in B.C. as well, without fear of prosecution.
Louise Mandell noted that other First Nations may not have treaty rights like the Tsartlip, but hunt at night and have the right to do so as aboriginal people.
"I think that the decision definitely shines a bright light on the province to make sure that those night-hunting practices are recognized," she said.
However, the B.C. Wildlife Federation's Paul Adams is critical of the decision, calling it dangerous.
He told CBC News that there is a question of public safety, especially in the densely-populated Saanich Peninsula, north of Victoria, where the Tsartlip live and hunt.
"The discharge of a rifle at night time when you don't know what is beyond your target is a very dangerous thing for the general public."
Meanwhile, a B.C. law professor said Thursday's judgment is significant at a broader level.
"It shows that treaties can be paramount to provincial law," said John Borrows of the University of Victoria.
"Treaties can have overriding influence over provincial laws. We've seen that before, but we've not seen it before in British Columbia with treaties."
See also Supreme Court of Canada ruling at http://scc.lexum.umontreal.ca/en/2006/2006scc59/2006scc59.html