Supreme Court of Canada –  S.C.R. 81
As with many cases before 1982, this one is out of date. Hunting at night, with lights, was discussed in 2006 in Morris. However, the Court already recognizes the fundamental importance of hunting for subsistence. It also acknowledges that provinces can limit such rights for safety and environmental purposes
Is the use of the term “hunt” in the Game and Fisheries Act of Manitoba ambiguous regarding Indians? And are they subject to the prohibitions found in the same Act?
Indians can be subject to prohibitions, but in this case they were hunting for survival on land to which they have access, so they are in their right (unanimous decision).
Between: Rufus Prince, George Prince and Robert Myron
And: the Crown of Manitoba
Interveners: Quebec and Alberta
The Princes and Myron are Treaty Indians and members of the band of the Long Plain Indian Reserve. In 1961, they hunted near South Cypress, Manitoba, on lands on which their tribe held a right of access. They were charged for hunting deer with the use of a spot-light in violation of the Game and Fisheries Act
Myron and others: They challenged the constitutional validity of the Game and Fisheries Act. The legislation impedes on their aboriginal right to hunt for food, since the use of a spot-light is their traditional mean of hunting.
The Crown of Manitoba : Myron and the Princes had of a right to hunt on lands involved, but the Manitoba legislature can regulate the method used to hunt in the Game and Fisheries Act.
Manitoba Provincial Court (1961): The Court ruled in favour of the three accused. They were hunting on lands on which they hold a right to access. Since there were no visible signs prohibiting the use of night lights, there was no way of knowing that this act was unlawful. The Indians were entitled to hunt in any way they saw fit.
Manitoba Court of Appeal (1962): The Game and Fisheries Act does apply to Indians in some cases. Indians could not be barred from hunting at any time or any unoccupied land, but the manner in which hunting activities are performed can be regulated. The court rejected the acquittals
Taschereau, Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence
The repercussions of the Natural Resource Transfer Agreement are to grant treaty Indians an additional benefit to hunt for food “out of season”, while otherwise being subject to provincial legislation, such as the Game and Fisheries Act. A limit may be placed on the number of animals they may kill in a year, despite it being inferior to what is needed for subsistence.
The intention behind the Game and Fisheries Act was to protect the wild animals from excessive hunting for sport or for commercial purposes. The Indians’ hunting is for survival purposes only and have been enjoying this right since before the arrival of Europeans in America. They have the right to hunt as they please and use the means they see fit only for their subsistence and on lands on which they have access.
The acquittals are restored.
In 1975, in Myran, the Supreme Court ruled that provincial laws and regulations relating to safety can be applied to Aboriginals even though they infringed upon their aboriginal or treaty rights. Therefore, the practice of night hunting by some First Nation was considered as an unsafe practice. This reasoning was also followed in other cases relating to night hunting (Olthuis, Kleer and Townshend, 2009: 80-90).
In 2006, the treaty right to hunt at night with illumination was recognized by the Supreme Court in a case involving a member of the Saanich Nation, in British Columbia (R. v. Morris). If a similar situation should arise from the Prairies, the outcome could be different since the right to hunt on unoccupied Crown’s land was given by the Natural Resources Transfer Agreement passed by the federal parliament in 1930. The matter for treaty beneficiaries is still unresolved (Olthuis, Kleer and Townshend, 2008: 53).