Supreme Court of Canada –  2 S.C.R. 915
The Court confirms that public safety limits aboriginal and treaty rights, and that the means used to practice treaty rights can evolve in time.
Is the Tsarlip’s right to hunt using illumination protected by treaty? If so, can a provincial regulation affect this right?
The right to hunt by night using illumination is protected by the Douglas Treaties, because this practice existed at the time it was concluded, and it can evolve in time. The right to hunt dangerously is not however protected, but it was not the case here (4 judges against 3).
Between: Ivan Morris and Carl Olsen
And: the Crown of British Columbia
Interveners: Canada, Ontario, Quebec, New Brunswick, Saskatchewan, Alberta, Eagle Village First Nation (Migizy Odenaw), Red Rock Indian Band, Conseil de la Nation huronne‑wendat, Te’mexw Treaty Association, Chief Allan Claxton and Chief Roger William
In 1849, the colony of Vancouver Island was established on the island of the same name in British Columbia. Between 1850 and 1854, the Hudson’s Bay Company, acting on the British Crown’s behalf, acquired lands from the First Nations living on the island. The 358 square miles were purchased via a series of fourteen treaties concluded with the different First Nations. The treaties were better known as the Douglas Treaties since James Douglas, Governor of the Colony of Vancouver, was in charge of the negotiations. Their content was similar: the tract of land in question was to be surrendered to the British Crown in exchange for money and necessities. Also, the signatory tribes and their descendents could continue to live in their existing settlements and were given the right to hunt freely on unoccupied Crown lands and the right to fish (Ministry of Aboriginal Relations and Reconciliation, 2007).
In 1852, the Saanich Nation entered into a treaty with Douglas. At the time of the treaty’s signing, this First Nation traditionally hunted at night by using illumination. The Saanich Nation is currently known as the Tsartlip Band. Prior to 1996, the provincial Crown had an administrative policy of not prosecuting members of the Tsartlip Band for night hunting, even though this contravened the province’s Wildlife Act. There was also an agreement between Turner, the Chief Enforcement Officer of the Preservation Officer Service for Vancouver Island, and the Tsartlip Band, to tolerate its members’ practice of night hunting. Since the adoption of this policy, no accidents related to the Tsartlip’s night hunting with illumination had been reported.
In 1996, Turner retired from the Preservation Officer Service for Vancouver Island. Non-Aboriginal hunters complained to preservation officers about the Tsartlip’s hunting practices, deeming them unsafe. In response, a trap was set to ambush night hunters, without advising the Tsartlip Band beforehand. Consequently, Morris and Olsen, both Tsartlip Band members, were arrested and charged under the Wildlife Act for hunting wildlife with a firearm during prohibited hours, hunting by the use or the aid of a light or illuminating device, hunting without reasonable consideration for the lives, safety or property of other persons and discharging a firearm at wildlife from a motor vehicle
Morris and Olsen: The Douglas Treaty protected their right to hunt. The Tsartlip had a tradition going back for generations of hunting at night, which had been carried on safely throughout these years. Also, the decoy used as a trap had been put on a site considered safe for night hunting. Furthermore, the Wildlife Act is inapplicable in this case because it is a provincial law of general application which infringes their “core Indianness.”
The Crown: Even though the Tsartlip’s right to hunt was protected by a treaty, the practice of night hunting is inherently unsafe, and therefore contravenes provincial regulations pertaining to safety.
British Columbia Provincial Court, 1999: Night hunting with illumination is a traditional method used by the Tsartlip to hunt, but the accused had no treaty right to hunt at night since it was an inherently unsafe practice. They were convicted of hunting during prohibited hours and of discharging a firearm at wildlife from a motor vehicle. The charges of hunting with the use or aid of a light or illuminating device were conditionally stayed. Both men were also acquitted of hunting without reasonable consideration for the lives, safety or property of other persons.
British Columbia Supreme Court, 2002: The convictions are upheld.
British Columbia Court of Appeal, 2004: The convictions are upheld by a majority of 2-1.
Binnie, Deschamps, Abella, Charron
The 1852 treaty part of a series of treaties concluded with the fourteen nations living on Vancouver Island at the time. The British Crown wanted to protect its settlers, who were outnumbered by the Aboriginal people. In order to keep the peace, Douglas guaranteed the Saanich Nation the freedom to hunt on unoccupied lands by using the same hunting practices that it had traditionally used. When considering the evidence presented at trial, night hunting with illumination is considered as a traditional hunting practice of the Saanich Nation and the Tsartlip Band.
One must construe a treaty liberally and resolve ambiguities in favour of the Aboriginal signatories. Even though the tools used by the Tsartlip for night hunting have changed since 1852, this evolution cannot diminish the Tsartlip’s treaty right. Concerning the inherently unsafe nature of the practice, since the province’s territory is vast, not all night hunting practices will therefore be deemed dangerous to the public and this is not a ground on which to limit the treaty right in question.
As for the application of the Wildlife Act to the appellants, since it is a provincial law of general application, it cannot interfere with a treaty right to hunt, as this would impair the Tsartlip’s “Indianness.” Therefore, the Wildlife Act’s provisions are outside of the province’s jurisdiction.
Section 88 of the Indian Act provides that all provincial laws of general application can be applied to Indians by incorporating them into federal law, except for those affecting treaty rights. If there is minimal impairment, the provincial law will be applied, and if the treaty right is diminished, it will not. Since the Wildlife Act forbids all night hunting, even though it is possible to hunt safely during that time, the Tsarlip’s right to hunt at night with illumination is impaired, and therefore sect. 88 of the Indian Act cannot be applied.
Since the Supreme Court of Canada’s Myran decision in 1975 ruled that provincial laws and regulations relating to safety can be applied to Aboriginal people even though they infringe upon their Aboriginal or treaty rights, night hunting has been considered as an unsafe practice.
In Ontario, the Provincial Court found an Ojibway man, a member of the Saugeen First Nation and a Treaty No. 3 beneficiary, not guilty of unlawfully hunting at night in 1996. The trial judge considered that not all night hunting is dangerous and that the circumstances must be examined each time that the accused has an Aboriginal or treaty right to hunt. In that particular case, night hunting was safe since it was done in a remote location, and public safety was never at risk (R.v. Machimity, par. 38-41). The same reasoning was later applied in Morris.
The province’s approach to treaty rights has been criticized by the Ipperwash Inquiry’s final report. The public inquiry began its activities in 2003 after the death of Dudley George, a First Nation activist, who was shot to death during a protest in 1996. The commission had the mandate to inquire about the events surrounding the tragedy and to make recommendations on how to avoid violence in other, similar situations (Order-in-Council, 2003). The Commissioner, the Hon. Sydney Linden, also examined the province’s public policy towards Aboriginal issues, since he considered it as an underlying cause of the events of 1996 (Ipperwash Inquiry, Investigation and Findings, 2007: 1-2). Concerning public policy pertaining to treaty relations, he found that both governments failed to honour the province’s treaties (Ipperwash Inquiry, Policy Analysis, 2007: 54). Concerning hunting and fishing rights, the Commissioner felt that by not accommodating Aboriginal interests in natural resource management, mainly by over-regulating their traditional practices, the government had excluded Aboriginal people from the province’s thriving economy (Ibid: 59).
Instead of negotiating with First Nations about clarifying their treaty rights, Ontario preferred to prosecute them if they contravened fish and game laws and to let the courts decide on the extent of their rights (Coyle, 2008: 426-427). The Commission recommended that the Ontario government consult and negotiate with First Nations so as to more clearly define their treaty rights through a permanent, independent and impartial agency, the Treaty Commission of Ontario, established by the Legislative Assembly in collaboration with the province’s First Nations (Ipperwash Inquiry, Policy Analysis, 2007: 72 and 365). This recommendation is endorsed by scholars (Coyle, 2008: 434-435).
In the Maritimes, in May 2006 three Maliseet men, beneficiaries of the Peace and Friendship Treaty of the 1760s, which guaranteed the right to hunt traditionally, were found guilty of the charge of hunting with the assistance of a light under the New Brunswick Fish and Wildlife Act by the province’s Court of Appeal (R. v. Polches et al., 2006). They filed an application for leave to appeal to the Supreme Court. The Supreme Court’s decision in Morris was given in December 2006, and in January 2007, it decided to send the Polches case back to the New Brunswick Court of Appeal to be dealt with in accordance with the principles set forth in Morris (Richard Polches, Jason Brooks and Jeffrey Polches v. Her Majesty the Queen, 2007).
The Court of Appeal reconsidered their case and decided to maintain its first decision, and the three men were convicted of the offence (R.v. Polches et al., 2008: par. 18). In the Court’s motives, C.J. Drapeau distinguished Morris from the case at hand because Polches et al.’s treaty right to hunt did not encompass searching for wildlife with the assistance of a light in order to observe it to pass time, which they testified to doing at the time of their arrest (Ibid: par. 52-53). As for the inherent dangerousness of night hunting, C.J. Drapeau reaffirmed the Morris principle and stated that treaty beneficiaries could invoke the defence if they were pursuing traditional hunting activities when the supposed offence took place (Ibid: 54).
Polches et al. applied for an appeal to the Supreme Court, but their application was rejected (Richard Polches, Jason Brooks and Jeffrey Polches v. Her Majesty the Queen, 2008).
R. v. Marshall,  3 S.C.R. 456
R. v. Marshall,  3 S.C.R. 533
Richard Polches, Jason Brooks and Jeffrey Polches v. Her Majesty the Queen, 2008 CanLII 23446 (S.C.C.).
Richard Polches, Jason Brooks and Jeffrey Polches v. Her Majesty the Queen, 2007 CanLII 1153 (S.C.C.).
R. v. Polches et al., 2008 NBCA 1
R. v. Polches et al., 2006 NBCA 50
R. v. Machimity,  O.J. No. 4365
Coyle Michael. 2008. Respect for Treaty Rights in Ontario: The Law of the Land?, Ottawa Law Review 39: 405-438.
Executive Council of Ontario. 2003. Order-in-Council No. 1662. Government of Ontario: Toronto.
Ipperwash Inquiry. 2007. Report of the Ipperwash Inquiry, Volume 1: Investigation and Findings. Government of Ontario: Toronto.
Ipperwash Inquiry. 2007. Report of the Ipperwash Inquiry, Volume 2 : Policy Analysis. Government of Ontario: Toronto.
Ministry of Aboriginal relations and Reconciliation. 2007. Douglas Treaties: 1850-1854. Government of British Columbia: Victoria. On-line. http://www.gov.bc.ca/ arr/treaty/landmark/douglas/default.html. Retrieved on January 13, 2010.
Olthuis John, Kleer Nancy and Roger Townshend. 2009. Aboriginal Law Handbook, 3rd edition. Carswell.