SUPREME
COURT OF CANADA
Between:
Ivan Morris and
Carl Olsen
Appellants
and
Her Majesty the
Queen
Respondent
‑ and ‑
Attorney General
of Canada, Attorney General of Ontario,
Attorney General
of Quebec, Attorney General of New Brunswick,
Attorney General
for Saskatchewan, Attorney General of 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
Interveners
Coram:
McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and
Charron JJ.
Joint Reasons
for Judgment:
(paras. 1 to 61)
Joint Dissenting
Reasons:
(paras. 62 to 140)
|
Deschamps and Abella JJ. (Binnie and Charron JJ.
concurring)
McLachlin C.J. and Fish J. (Bastarache J. concurring)
|
______________________________
R. v. Morris, [2006] 2 S.C.R. 915, 2006
SCC 59
Ivan Morris and Carl Olsen Appellants
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of New Brunswick,
Attorney General for Saskatchewan, Attorney General of 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 Interveners
Indexed as: R. v. Morris
Neutral citation: 2006 SCC 59.
File No.: 30328.
2005: October 14; 2006: December 21.
Present: McLachlin C.J. and Bastarache, Binnie,
Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Aboriginal law — Treaty
rights — Right to hunt — Two members of Tsartlip Indian Band charged
under provincial wildlife legislation of hunting with firearm during prohibited
hours and hunting with illuminating device — Whether treaty right to
hunt includes right to hunt at night with illuminating
device — Whether provincial legislation of general application
infringes band’s treaty right to hunt — Whether
provincial legislation applicable to band by virtue of s. 88 of Indian
Act — Wildlife Act, S.B.C. 1982, c. 57, ss. 27(1)(d), (e),
29 — Indian Act, R.S.C. 1985, c. I‑5, s. 88 .
Constitutional
law — Indians — Provincial wildlife
legislation — Two members of Tsartlip Indian Band charged under
provincial wildlife legislation of hunting with firearm during prohibited hours
and hunting with illuminating device — Whether valid provincial
legislation of general application inapplicable to band because it interferes
with band’s treaty right to hunt — Whether provincial legislation
nonetheless applicable by virtue of s. 88 of Indian
Act — Constitution Act, 1867, ss. 91(24) ,
92(13) — Indian Act, R.S.C. 1985, c. I‑5, s. 88
— Wildlife Act, S.B.C. 1982, c. 57, s. 27(1)(d), (e).
The accused, both members of the Tsartlip Indian Band
of the Saanich Nation, were hunting at night when they shot at a decoy deer set
up by provincial conservation officers to trap illegal hunters. They were
arrested and charged with several offences under British Columbia’s Wildlife
Act, including: (1) hunting wildlife with a firearm during
prohibited hours (s. 27(1)(d)); (2) hunting by the use or with the
aid of a light or illuminating device (s. 27(1)(e)); and (3) hunting
without reasonable consideration for the lives, safety or property of other
persons (s. 29). At trial, as a defence to the charges under s. 27(1),
the accused raised their right “to hunt over the unoccupied lands
. . . as formerly” under the North Saanich Treaty of 1852. They
also introduced evidence that the particular night hunt for which they were
charged was not dangerous. The trial judge found that “night hunting with
illumination was one of the various methods employed by the Tsartlip [people] from
time immemorial”. However, despite the evidence that night hunting by Tsartlip
hunters had yet to result in an accident, he nonetheless concluded that the
accused did not have a treaty right to hunt at night because hunting at night
with an illuminating device was “inherently unsafe”. The trial judge entered
convictions on count 1, conditionally stayed count 2 because of the
rule against multiple convictions arising from the same delict, and entered
acquittals on count 3. Both the summary conviction appeal judge and the
majority of the Court of Appeal upheld the convictions based on the prohibition
of night hunting (s. 27(1)(d)).
Held
(McLachlin C.J. and Bastarache and Fish JJ.
dissenting): The appeal should be allowed. The convictions are set
aside and acquittals entered.
Per Binnie, Deschamps,
Abella and Charron JJ.: The Tsartlip’s right to hunt at
night with the aid of illuminating devices is protected by the
North Saanich Treaty. The historical context indicates that the parties
intended the treaty to include the full panoply of hunting practices in which
the Tsartlip people had engaged before they agreed to relinquish control over
their lands. One of those practices was night hunting and, as the trial judge
acknowledged, night hunting by the Tsartlip includes, and always has included,
night hunting with the aid of illuminating devices. Even on a literal
construction, the language of the treaty supports the view that the right to
hunt “as formerly” means the right to hunt according to the methods used by the
Tsartlip at the time of and before the treaty. The right of the Tsartlip to
hunt at night with illuminating devices has of necessity evolved from its pre‑treaty
tools to its current implements, and the use of guns, spotlights, and motor
vehicles reflects the current state of the evolution of the Tsartlip’s historic
hunting practices. However, it is acknowledged that it could not have been
within the common intention of the parties that the Tsartlip would be granted a
right to hunt dangerously, since no treaty confers on its beneficiaries a right
to put human lives in danger. This is confirmed by the language of the treaty
itself, which restricts hunting to “unoccupied lands”, away from any town or
settlement. Since British Columbia is a very large province, it cannot
plausibly be said that a night hunt with illumination is unsafe everywhere and
in all circumstances, even within the treaty area at issue in this case.
Accordingly, while s. 29 of the Wildlife Act, which prohibits
hunting or trapping “without reasonable consideration for the lives, safety or
property of other persons”, is a limit that does not impair the treaty rights
of aboriginal hunters and trappers, paras. (d) and (e) of s. 27(1), which
apply without exception to the whole province, are overbroad and infringe the
treaty right to hunt. Something less than an absolute prohibition on night
hunting can address the concern for safety. [14] [25‑35] [40] [59]
The relevant provisions of the Wildlife Act are
valid provincial legislation under s. 92(13) of the Constitution Act,
1867 . Since treaty rights to hunt lie squarely within federal
jurisdiction, provincial laws of general application that are inapplicable
because they impair “Indianness” may nonetheless be found to be applicable by
incorporation under s. 88 of the Indian Act . While, on its face,
s. 88 cannot be used to incorporate into federal law provincial laws that
conflict with the terms of any treaty, the provinces may regulate treaty
rights under certain circumstances. Provincial legislation of general
application that interferes in an insignificant way with the exercise of that
right do not infringe the right; but where, as in the case of s. 27(1) (d)
and (e), such legislation is found to conflict with a treaty in a way that
constitutes a prima facie infringement, the protection of treaty rights
prevails and the provincial law cannot be incorporated under s. 88 of the Indian
Act . [42‑46] [50] [54]
Per McLachlin C.J.
and Bastarache and Fish JJ. (dissenting): The impugned ban on
night hunting with a firearm (s. 27(1)(d)) is valid provincial legislation
that applies to the accused. [82]
The Wildlife Act falls in pith and substance
within the province’s powers. It is not directed at a federal head, like
Indians, but more generally at safety, a matter within provincial power. The
ban on night hunting is an integrated part of a broader provincial scheme
applicable to all British Columbians and aimed at assuring the safety of the
province’s hunters and residents. Since this provision does not conflict with
federal legislation, the doctrine of paramountcy has no application. Finally,
where a provincial law of general application does not affect a treaty right,
and does not otherwise touch upon core Indianness, that law applies ex proprio vigore,
without recourse to s. 88 of the Indian Act . Provincial
legislation that falls outside the internal limits on the treaty right that the
parties to the treaty would have understood and intended does not encroach on
the treaty right. [82] [87] [92]
A treaty must be interpreted in a manner that best
reconciles the interests of the parties to it. The right to hunt protected by
the treaty is subject to an internal limit: it does not include the
right to hunt in an inherently hazardous manner. Rather, the right to hunt
must be exercised reasonably. Although, at the time the treaty was signed,
the practice of hunting at night did not pose the same dangers as it does
today, the parties to the treaty must have understood that the right to hunt
did not carry with it a right to hunt dangerously. Furthermore, just as the
methods and means of exercising the right should not be frozen in time, neither
should the government’s legitimate safety concerns. Adapting the exercise of
treaty rights to modern weaponry without adapting the corollary legitimate
safety concerns would lead to unacceptable results. [82] [108] [110] [115]
Here, s. 27(1)(d) of the Wildlife Act regulates
the internal safety limit on the treaty right of the accused. A ban on night
hunting with a firearm is a reasonable exercise of the Province’s regulatory
power in defining this internal limit. Since the regulation of dangerous
hunting falls outside the scope of the treaty right to hunt, no treaty right is
engaged. Accordingly, as no aboriginal right is asserted, and as the
provincial law does not otherwise go to Indianness, the law applies ex proprio vigore.
[82] [129] [132]
Cases Cited
By Deschamps and Abella JJ.
Applied: R.
v. Marshall, [1999] 3 S.C.R. 456; R.
v. Marshall, [1999] 3 S.C.R. 533; referred to: Kienapple
v. The Queen, [1975] 1 S.C.R. 729; R. v. White (1964),
50 D.L.R. (2d) 613; R. v. Bartleman (1984),
55 B.C.L.R. 78; Saanichton Marina Ltd. v. Claxton (1989),
36 B.C.L.R. (2d) 79; R. v. Marshall, [2005]
2 S.C.R. 220, 2005 SCC 43; Simon v. The Queen,
[1985] 2 S.C.R. 387; R. v. Sundown, [1999]
1 S.C.R. 393; R. v. Badger, [1996] 1 S.C.R. 771; Kitkatla
Band v. British Columbia (Minister of Small Business, Tourism and Culture),
[2002] 2 S.C.R. 146, 2002 SCC 31; Four B Manufacturing
Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Dick
v. The Queen, [1985] 2 S.C.R. 309; R. v. Côté, [1996]
3 S.C.R. 139; R. v. Nikal, [1996] 1 S.C.R. 1013; R.
v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Gladstone, [1996]
2 S.C.R. 723.
By McLachlin C.J. and Fish J. (dissenting)
R. v. Sparrow, [1990]
1 S.C.R. 1075; Kienapple v. The Queen, [1975]
1 S.C.R. 729; Kitkatla Band v. British Columbia (Minister of Small
Business, Tourism and Culture), [2002] 2 S.C.R. 146,
2002 SCC 31; Paul v. British Columbia (Forest Appeals Commission),
[2003] 2 S.C.R. 585, 2003 SCC 55; R. v. Francis,
[1988] 1 S.C.R. 1025; General Motors of Canada Ltd. v. City
National Leasing, [1989] 1 S.C.R. 641; Rothmans, Benson &
Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188,
2005 SCC 13; Delgamuukw v. British Columbia, [1997]
3 S.C.R. 1010; Simon v. The Queen, [1985]
2 S.C.R. 387; R. v. Marshall, [1999] 3 S.C.R. 456; R.
v. Marshall, [1999] 3 S.C.R. 533; R. v. Badger, [1996]
1 S.C.R. 771; R. v. Sundown, [1999] 1 S.C.R. 393; Myran
v. The Queen, [1976] 2 S.C.R. 137; R. v. Sutherland,
[1980] 2 S.C.R. 451; Moosehunter v. The Queen, [1981]
1 S.C.R. 282; Dick v. The Queen, [1985]
2 S.C.R. 309; R. v. Côté, [1996] 3 S.C.R. 139; R.
v. Paul (1993), 142 N.B.R. (2d) 55; R. v. Marshall, [2005]
2 S.C.R. 220, 2005 SCC 43; R. v. White (1965),
52 D.L.R. (2d) 481, aff’g (1964), 50 D.L.R. (2d) 613; Prince
v. The Queen, [1964] S.C.R. 81; R. v. Nikal, [1996]
1 S.C.R. 1013; R. v. Seward (1999), 171 D.L.R.
(4th) 524; R. v. Bernard (2002), 200 N.S.R. (2d) 352,
2002 NSCA 5, leave to appeal refused, [2002] 3 S.C.R. vi; R.
v. Pariseau, [2003] 2 C.N.L.R. 260; R. v. Southwind,
[1991] O.J. No. 3612 (QL); R. v. King, [1996] O.J. No. 5458
(QL); R. v. Harris, [1998] B.C.J. No. 1016 (QL); R. v.
Ice, [2000] O.J. No. 5857 (QL); R. v. Stump, [2000]
4 C.N.L.R. 260; R. v. Barlow (2000), 228 N.B.R.
(2d) 289, leave to appeal refused, [2001] N.B.J. No. 145 (QL),
2001 NBCA 44; Turner v. Manitoba (2001), 160 Man. R.
(2d) 256, 2001 MBCA 207; R. v. Augustine (2001),
232 N.B.R. (2d) 313, leave to appeal refused, [2001] N.B.J.
No. 190 (QL), 2001 NBCA 57; R. v. Maurice, [2002]
2 C.N.L.R. 273, 2002 SKQB 68; R. v. Pitawanakwat,
[2004] O.J. No. 2075 (QL), 2004 ONCJ 50; R. v. Yapput,
[2004] O.J. No. 5055 (QL), 2004 ONCJ 318; R. v. Maple,
[1982] 2 C.N.L.R. 181; R. v. Machimity, [1996]
O.J. No. 4365 (QL); R. v. Polches (2005), 289 N.B.R.
(2d) 72, 2005 NBQB 137.
Statutes and Regulations Cited
Constitution Act, 1867, ss. 91(24) , 92(13) .
Constitution Act, 1982, s. 35 .
Indian Act, R.S.C. 1985, c. I‑5, s. 88 .
Indian Act, S.C. 1951, c. 29.
Wildlife Act, S.B.C. 1982, c. 57, ss. 27(1)(d), (e), 28(1), 29.
Treaties
North
Saanich Treaty of 1852.
Authors Cited
Wilkins, Kerry. “Of Provinces and
Section 35 Rights” (1999), 22 Dal. L.J. 185.
APPEAL from a judgment of the British Columbia Court
of Appeal (Lambert, Huddart and Thackray JJ.A.) (2004),
194 B.C.A.C. 107, 317 W.A.C. 107,
25 B.C.L.R. (4th) 45, 237 D.L.R. (4th) 693, [2004]
2 C.N.L.R. 219, [2004] 5 W.W.R. 403, [2004] B.C.J.
No. 400 (QL), 2004 BCCA 121, affirming a judgment of
Singh J., [2002] 4 C.N.L.R. 222, [2002] B.C.J.
No. 1292 (QL), 2002 BCSC 780, upholding the convictions entered
by Higinbotham Prov. Ct. J., [1999] B.C.J. No. 3199 (QL). Appeal allowed,
McLachlin C.J. and Bastarache and Fish JJ. dissenting.
Louise Mandell,
Q.C., Ardith Wal’petko We’dalx Walkem, Bruce Elwood
and Michael Jackson, Q.C., for the appellants.
Lisa J. Mrozinski and Paul E. Yearwood, for the respondent.
Mitchell R. Taylor and Mark Kindrachuk, Q.C., for the intervener the
Attorney General of Canada.
Ria Tzimas and Elaine M. Atkinson,
for the intervener the Attorney General of Ontario.
René Morin, for
the intervener the Attorney General of Quebec.
John G. Furey,
for the intervener the Attorney General of New Brunswick.
P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.
Sandra C. M. Folkins and Angela Edgington, for the intervener the Attorney
General of Alberta.
Diane Soroka, for
the intervener the Eagle Village First Nation (Migizy Odenaw).
Harley I. Schachter, for the intervener the Red Rock Indian Band.
Michel Beaupré and
Simon Picard, for the intervener Conseil de la Nation huronne‑wendat.
Written submissions only by Robert J. M. Janes
and Dominique Nouvet, for the intervener Te’mexw Treaty
Association.
Written submissions only by Jack Woodward
and David M. Robbins, for the intervener
Chief Allan Claxton.
Written submissions only by David M. Rosenberg,
Patricia Hutchings and Jay Nelson, for the intervener
Chief Roger William.
The judgment of Binnie, Deschamps, Abella and Charron
JJ. was delivered by
1
Deschamps and Abella JJ. —
This case raises the question whether a provincial government acting within its
constitutionally mandated powers can interfere with treaty rights and, if so,
to what extent.
2
In 1852, James Douglas, Governor of the Colony of Vancouver Island,
representing the British Crown, enshrined in a treaty the recognition that the
Saanich Nation would be “at liberty to hunt over the unoccupied lands; and to
carry on our fisheries as formerly”. Ivan Morris and Carl Olsen, both members
of the Tsartlip Band of the Saanich Nation, were charged, among other charges,
under s. 27(1)(d) and (e) of British Columbia’s Wildlife Act, S.B.C.
1982, c. 57, for doing what the Tsartlip have done, as the trial judge noted,
“from time immemorial”: hunting for food at night with the aid of illuminating
devices.
3
As a defence to the charges under s. 27, Morris and Olsen raised their
right to hunt under the North Saanich Treaty of 1852 (“Treaty”). The Crown
concedes that Morris and Olsen have a right to hunt but asserts a ban on
hunting at night. Morris and Olsen counter that they were observing safe
hunting practices and that provincial regulations cannot affect their treaty
right.
4
In this case, we conclude that the Tsartlip’s right to hunt at night
with the aid of illuminating devices is protected by treaty. Although the
prohibition against dangerous hunting contained in s. 29 of the Wildlife Act
is a limit that does not infringe the treaty right, the complete prohibition on
hunting at night with an illuminating device set out in s. 27 is overbroad
because it prohibits both safe and unsafe hunting, and, in the case of
aboriginal hunters, infringes their treaty right.
5
The evidence at trial was that the Tsartlip’s historic aboriginal
practice of hunting at night with illumination has yet to result in a single
known accident caused by those engaging in it. In our view, paras. (d) and (e)
of s. 27(1) of the Wildlife Act, despite being part of a valid
provincial law of general application, prohibit the exercise of a protected
treaty right and are inapplicable in this case. We would therefore allow the
appeal, set aside the convictions and enter acquittals.
1. Background
6
Morris and Olsen were arrested on November 28, 1996 on Vancouver Island
for breaches of prohibitions contained in the Wildlife Act: hunting of
wildlife with a firearm during prohibited hours (s. 27(1)(d)); hunting by the
use or with the aid of a light or illuminating device (s. 27(1)(e)); hunting
without reasonable consideration for the lives, safety or property of other
persons (s. 29); and, in the case of Olsen only, discharging a firearm at
wildlife from a motor vehicle (s. 28(1)).
7
The backdrop to the prosecution of Morris and Olsen was a change of
administrative policy on the part of the provincial Crown, acting through
conservation officers. The evidence is that the Tsartlip had hunted at night
for generations until the charges were laid in this case. They had received
confirmation from the Minister of Forests, David Zirnhelt, that there would be
no prosecutions in connection with the exercise of hunting and fishing rights
pursuant to the Treaty. On the basis of this assurance, the Tsartlip entered
into an arrangement with Doug Turner, Chief Enforcement Officer of the
Conservation Officer Service for Vancouver Island, whereby any treaty
beneficiary charged in relation to night hunting was instructed to phone Mr.
Turner. Once Mr. Turner received confirmation that the hunter in question was
a member of the Saanich Nation, the hunter would be released. This arrangement,
it appears, ended with Mr. Turner’s retirement in 1996.
8
In November of that year, not long after Mr. Turner’s retirement, a
conservation officer was invited to speak at a “rod and gun” club meeting where
members expressed dissatisfaction about Indians engaged in night hunting. A
decoy operation was promptly organized to trap night hunters, as a result of
which Morris and Olsen were arrested and charged. The Tsartlip were not
forewarned of the operation and no discussion took place after the charges were
laid.
9
The trial in Provincial Court lasted five days. Morris and Olsen raised
their rights under the Treaty as a general defence to the charges. The
conservation officer acknowledged that safety concerns are inversely
proportionate to the remoteness and density of the population.
10
Morris and Olsen led evidence to the effect that night hunting is part
of the Tsartlip tradition and has been carried on in safety for generations.
They also introduced evidence that the particular night hunt for which they
were charged was not dangerous. Morris and Olsen were caught by provincial
conservation officers using a mechanical black-tailed deer decoy. The decoy
was set up on unoccupied lands 20 metres off a gravel road. It was, one of the
conservation officers testified, a spot chosen for its safety. Officer Gerald
Brunham explained the choice of site as follows:
Q Were there any residences in that vicinity?
A Not within two kilometres.
.
. .
Q And you chose that particular [hunting] site
because of safety aspects?
A Yes.
Q So would it be accurate to say that there
were no private property, no campers, no dwellings within the range that a
bullet would travel?
A Yes.
Q And you chose that specific hillside so that
if a bullet did go through your decoy it would go into a hill and into the
trees?
A That’s right.
11
The trial judge found that “night hunting with illumination was one of
the various methods employed by the Tsartlip [people] from time immemorial”
([1999] B.C.J. No. 3199 (QL), at para. 19). However, despite the evidence that
night hunting by Tsartlip hunters had yet to result in an accident, he
nonetheless concluded that Morris and Olsen did not have a treaty right to hunt
at night because hunting at night with an illuminating device was “inherently
unsafe” (para. 25).
12
They were both convicted of hunting during prohibited hours contrary to
s. 27(1)(d), and Olsen was convicted of discharging a firearm at wildlife from
a motor vehicle contrary to s. 28(1). However, despite his conclusion that
night hunting was inherently unsafe, the trial judge acquitted the appellants
on the count of hunting without reasonable consideration for the lives, safety
or property of other persons (s. 29). As well, the trial judge conditionally
stayed the charges of hunting with the use or aid of a light or illuminating
device contrary to s. 27(1)(e), based on the rule in Kienapple v. The Queen,
[1975] 1 S.C.R. 729.
13
The convictions based on the prohibition of night hunting (s. 27(1)(d))
were upheld by a summary conviction appeal judge ([2002] 4 C.N.L.R. 222,
2002 BCSC 780) and by the majority in the Court of Appeal for British Columbia,
with Lambert J.A. dissenting ((2004), 25 B.C.L.R. (4th) 45, 2004 BCCA 121). The
only provisions at issue in the appeal before us are s. 27(1)(d) and (e).
2. Analysis
14
The analytical framework in which to consider this case can be divided
into two parts. The first step is to determine whether the impugned provisions
of the Wildlife Act impair a treaty right. This entails characterizing
the scope of the treaty right claimed by Morris and Olsen and delineating any
limits on that right. We acknowledge at the outset that there is no treaty
right to hunt dangerously. Thus s. 29 of the Wildlife Act, which
prohibits hunting or trapping “without reasonable consideration for the lives,
safety or property of other persons”, is a limit that does not impair the
treaty rights of aboriginal hunters and trappers. At issue are the limits
imposed by s. 27(1)(d) and (e). In our view these prohibitions, presented as
safety measures in relation to the Tsartlip, are overbroad and infringe the
treaty right to hunt.
15
The second step is to analyse whether the impugned provisions of the Wildlife
Act are valid and applicable under the constitutional division of powers in
ss. 91 and 92 of the Constitution Act, 1867 and under s. 88 of the Indian
Act, R.S.C. 1985, c. I-5 . In our view, because paras. (d) and (e) of s.
27(1) are inconsistent with the Treaty, they do not apply to Morris and Olsen
either directly, of their own force, as provincial law, or as incorporated
federal law under s. 88 of the Indian Act .
2.1 Evolution of the Treaty Right
16
Between 1850 and 1854, 14 treaties were concluded with bands living on
Vancouver Island. These came to be known as the Douglas Treaties, named after
James Douglas, Governor of the Colony of Vancouver Island at the time. The
Treaty alone covers approximately 22,000 hectares situated on lands that are
partly uninhabited and partly inhabited.
17
In exchange for the surrender by the Saanich of their lands on Vancouver
Island, the Crown made a number of commitments to them, including the following
guarantee:
[I]t is . . . understood that we [the Saanich Tribe] are at liberty to
hunt over the unoccupied lands, and to carry on our fisheries as formerly.
[Emphasis added.]
Each of the 14
treaties contained this commitment in the same formulation.
18
The language of the Treaty stating “we are at liberty to hunt over the
unoccupied lands” exemplifies the lean and often vague vocabulary of historic
treaty promises. McLachlin J., dissenting on other grounds, stated in R. v.
Marshall, [1999] 3 S.C.R. 456 (“Marshall No. 1”), at para. 78,
that “[t]he goal of treaty interpretation is to choose from among the various
possible interpretations of common intention the one which best reconciles the
interests of both parties at the time the treaty was signed”. This means that
the promises in the treaty must be placed in their historical, political, and
cultural contexts to clarify the common intentions of the parties and the
interests they intended to reconcile at the time.
19
The Douglas Treaties were the reflections of oral agreements reduced to
writing by agents of the Crown. The historical background to these treaties
has been ably documented by the B.C. Court of Appeal in three decisions: see R.
v. White (1964), 50 D.L.R. (2d) 613; R. v. Bartleman (1984), 55
B.C.L.R. 78; and Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R.
(2d) 79. This historical context reveals an overriding intention that the
methods by which the Saanich traditionally hunted be brought within the
Treaty’s protection.
20
First, it was in the interest of all parties to preserve traditional
hunting and fishing practices among the Tsartlip and other Douglas Treaty
bands. As Lambert J.A. stated in Bartleman, at p. 90:
[A]t the time of the treaties, it was a concern of the colonial
government not to disturb the Indian people in their traditional food-gathering
activities. It was in the interest of the government of the colony of
Vancouver Island and of the Indians that the Indians should be able to support
themselves in their traditional ways.
21
The interests of the colonial government in preserving the traditional Tsartlip
way of life were a reflection of the economic and demographic realities of the
region, including concerns for the safety and security of the small number of
settlers. Norris J.A. summarized these imperatives as follows in White,
at p. 657:
[I]t was at the time of Douglas particularly important for the
maintenance of law and order that Indian rights be respected and interpreted
broadly in favour of the Indians, not merely for the due administration of law,
but also for the safety of the settlers who constituted a minority of, at the
most, 1,000 persons, there being 30,000 Indians on Vancouver Island alone,
apart from the warlike tribes to the north, who always constituted a raiding
threat and against whom the maintenance of friendship with the local Indians
afforded a measure of security.
22
Second, the historical record discloses that Governor Douglas
represented to the Indian peoples with whom he entered into treaties that the
treaties would secure for them the right to continue their pre-treaty hunting
practices. In a letter to the Colonial Secretary dated May 16, 1850,
Douglas stated the following:
I informed the natives that they would not be
disturbed in the possession of their Village sites and enclosed fields, which
are of small extent, and that they were at liberty to hunt over the
unoccupied lands, and to carry on their fisheries with the same freedom
as when they were the sole occupants of the country. [Emphasis added.]
(See White, at p. 651.)
23
Douglas wrote a similar confirmation to the Speaker and members of the
House of Assembly of British Columbia, advising them that:
[The Indians] were to be protected in their
original right of fishing on the Coasts and in the Bays of the Colony, and of
hunting over all unoccupied Crown Lands: and they were also to be secured in
the enjoyment of their village sites and cultivated fields.
(Bartleman, at p. 89)
24
These external acknowledgments by Douglas are significant where, as
here, the treaty was concluded orally and subsequently reduced to writing. The
oral promises made when the treaty was agreed to are as much a part of the
treaty as the written words: see Marshall No. 1, at para. 12.
25
The promises made by Douglas confirm that the parties intended the
Treaty to include the full panoply of hunting practices in which the Tsartlip
people had engaged before they agreed to relinquish control over their lands on
Vancouver Island.
26
One of those practices was night hunting. The trial judge acknowledged
the “considerable body of evidence supporting the fact that night hunting has
been an accepted practice of the Tsartlip people from pre-treaty days to the
present” (para. 18). His most significant finding about night hunting was that
it includes, and always has included, hunting with the aid of illuminating
devices:
[N]ight hunting with illumination was one of the various methods
employed by the Tsartlip people from time immemorial. [para. 19]
27
This finding reflected the evidence of Tom Sampson, a member of the
Tsartlip Indian Band who had hunted for 56 of his 65 years. He described the
various ways illumination was historically used in night hunting, including:
. . . a carbide light, it was what the coal miners used to use, and
prior to that we used — in fishing, we used the hollowed out part of our canoe
and we used pitch from a tree, the stumps we would cut out and shape and put in
front of the canoe as a light for hunting and fishing.
28
The relevant provision of this Treaty, as previously noted, states that
the Tsartlip “are at liberty to hunt over the unoccupied lands; and to carry on
[their] fisheries as formerly”. There is no dispute, at least for the purposes
of this case, that the words “as formerly” apply to both the hunting and
fishing clauses.
29
As McLachlin J. stated in Marshall No. 1, at para. 78, these
words “must be given the sense which they would naturally have held for the
parties at the time”. She also said that “[t]reaties should be liberally
construed and ambiguities or doubtful expressions should be resolved in favour
of the aboriginal signatories”. Even on a literal construction, the language
of the Treaty supports the view that the right to hunt “as formerly” means the
right to hunt according to the methods used by the Tsartlip at the time of and
before the Treaty. This would obviously include those methods the Tsartlip
have used in hunting “from time immemorial”.
30
From 1852 to the present, the tools used by the Tsartlip in hunting at
night have evolved. From sticks with pitch to spotlights and from canoes to
trucks, the tools and methods employed in night hunting have changed over
time. These changes do not diminish the rights conferred by the Treaty. The
right of the Tsartlip to hunt at night with illuminating devices has of
necessity evolved from its pre-treaty tools to its current implements. As
McLachlin C.J. observed in R. v. Marshall, [2005] 2 S.C.R. 220, 2005 SCC
43, at para. 25:
. . . treaty rights are not frozen in time. Modern peoples do
traditional things in modern ways. The question is whether the modern trading
activity in question represents a logical evolution from the traditional
trading activity at the time the treaty was made . . . . Logical evolution
means the same sort of activity, carried on in the modern economy by modern
means. This prevents aboriginal rights from being unfairly confined simply by
changes in the economy and technology.
31
This approach has led the Court in other cases to acknowledge, for
example, that hunting with a rifle and ammunition is the current form of an
evolving right whose origins were hunting with a bow and arrow (Simon v. The
Queen, [1985] 2 S.C.R. 387), and that a treaty right to erect a log cabin
for hunting purposes flows from the former use of mossy lean-to shelters (R.
v. Sundown, [1999] 1 S.C.R. 393).
32
The evidence in this case makes clear that the use of guns, spotlights,
and motor vehicles reflects the current state of the evolution of the
Tsartlip’s historic hunting practices. Morris testified at trial that the
Tsartlip used to hunt at night with
what they called torch lamps, and I heard this story told to me by our
older hunters, that they used sticks with pitch on the end of them to do the
same kind of hunt [but that the Tsartlip had] moved into these new tools of the
spotlight and of the gun, where it’s made it easier for us to hunt. And then
we use our vehicles instead of walking or paddling a canoe.
33
This evidence reveals that the weapons, means of transportation and
illuminating devices used in hunting have become more modern. But changes in
method do not change the essential character of the practice, namely, night
hunting with illumination. What was preserved by the Treaty and brought within
its protection was hunting at night with illuminating devices, not hunting at
night with a particular kind of weapon and source of illumination. This
conclusion is dictated by the common intentions of the parties to the Treaty,
as distilled from the context in which the Treaty was entered into. The
purpose of the hunting clause was to preserve the traditional Tsartlip way of
life, including methods of gathering food. It was, in addition, designed to
benefit the settlers, whose interests at the time lay in friendship with the
Indian majority on Vancouver Island.
34
Each of these interests could best be met by simultaneously ensuring
both the protection of the settlers and the continuation of the hunting methods
traditionally used by the Tsartlip. The common intention which best reconciles
the interests of the parties is one that brings a right to hunt as they always
had within the ambit of the Treaty. This includes the right to hunt at night with
illumination.
35
We agree, as stated earlier, that it could not have been within the
common intention of the parties that the Tsartlip would be granted a right to
hunt dangerously, since no treaty confers on its beneficiaries a right to put human
lives in danger. This limitation on the treaty right flows from the interest
of all British Columbians in personal safety. It is also confirmed by the
language of the Treaty itself, which restricts hunting to “unoccupied lands”,
away from any town or settlement. British Columbia is a very large province,
and it cannot plausibly be said that a night hunt with illumination is unsafe
everywhere and in all circumstances, even within the treaty area at issue in
this case.
36
This Court stated in R. v. Marshall, [1999] 3 S.C.R. 533 (“Marshall
No. 2”), at para. 37, that “regulations that do no more than reasonably
define the . . . treaty right in terms that can be administered by the
regulator and understood by the . . . community that holds the treaty rights do
not impair the exercise of the treaty right” (emphasis deleted). As well, as
noted in R. v. Badger, [1996] 1 S.C.R. 771, at para. 89, “reasonable
regulations aimed at ensuring safety do not infringe aboriginal or treaty
rights to hunt for food”.
37
The question, therefore, is how to identify and define internal limits
on a treaty right. The consensual nature of treaty rights and their specific
origin and structure dictate that a respectful approach be adopted. Individual
statutory provisions have to be evaluated to determine whether, based on the
available historical evidence, they are consistent with the common intention of
the parties to the treaty.
38
In our view, the best reconciliation of the parties’ intentions is one
that preserves as much as possible the ancient practices the Tsartlip would
have understood as forming part of their “liberty to hunt” under the Treaty,
subject only to the limit that they do not have a right to put lives or
property at risk. Thus, at the very least, the safety limitation in the Treaty
should not be drawn so broadly as to exclude all night hunting. It could
not have been within the common intention of the parties to completely ban
night hunting, which was a long-accepted method of hunting for food.
39
Nor can it be said that such a blanket exclusion should now be implied
as a matter of law. If a night hunt is dangerous in particular circumstances,
it can (and should) be prosecuted under s. 29. Here, the appellants were
acquitted of dangerous hunting. The implicit limitation found by our
colleagues the Chief Justice and Fish J. has a scope that interferes with the
time-honoured right instead of allowing for the right to be exercised subject
only to principled limitations. Protected methods of hunting cannot, without
more, be wholly prohibited simply because in some circumstances they could be
dangerous. All hunting, regardless of the time of day, has the potential to be
dangerous.
40
The blanket prohibition of s. 27(1)(d) and (e) applies, of course, throughout
British Columbia, including the vast regions of the interior. Much of the north
of the province is uninhabited except by aboriginal people, and there are areas
where even they are seen only occasionally. To conclude that night hunting
with illumination is dangerous everywhere in the province does not accord with
reality and is not, with respect, a sound basis for limiting the treaty right.
2.2 Constitutional Division of Powers
41
Having found that the Tsartlip’s treaty rights include the right to hunt
at night and with illumination, we must now determine whether the impugned
provisions of the Wildlife Act are nevertheless applicable from the
perspective of the constitutional division of powers in ss. 91 and 92 of the Constitution
Act, 1867 . By virtue of s. 91(24) , Parliament has exclusive power to make
laws in relation to “Indians, and Lands reserved for the Indians”. Provincial
laws whose “pith and substance” relates to this head of power are ultra
vires and invalid (Kitkatla Band v. British Columbia (Minister of Small
Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at para.
67). However, provincial laws of general application that affect Indians only
incidentally and are enacted under a provincial head of power will be found to
be intra vires and valid.
42
In this case, there is no question that the relevant provisions of the Wildlife
Act are valid provincial legislation under s. 92(13) of the Constitution
Act, 1867 , which refers to Property and Civil Rights in the Province.
However, where a valid provincial law impairs “an integral part of primary
federal jurisdiction over Indians and Lands reserved for the Indians” (Four
B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R.
1031, at p. 1047), it will be inapplicable to the extent of the impairment.
Thus, provincial laws of general application are precluded from impairing
“Indianness”. (See, for example, Dick v. The Queen, [1985] 2 S.C.R. 309,
at p. 326.)
43
Treaty rights to hunt lie squarely within federal jurisdiction over
“Indians, and Lands reserved for the Indians”. As noted by Dickson C.J. in Simon,
at p. 411:
It has been held to be within the exclusive power of Parliament under
s. 91(24) of the Constitution Act, 1867 , to derogate from rights
recognized in a treaty agreement made with the Indians.
This Court has
previously found that provincial laws of general application that interfere
with treaty rights to hunt are inapplicable to particular Aboriginal peoples.
(See, for example, Simon, at pp. 410-11; Sundown, at para. 47.)
Where such laws are inapplicable because they impair “Indianness”, however,
they may nonetheless be found to be applicable by incorporation under s. 88 of
the Indian Act .
2.3 Section 88 of the Indian Act
44
Section 88 reflects Parliament’s intention to avoid the effects of the
immunity imposed by s. 91(24) by incorporating certain provincial laws of
general application into federal law. Section 88 reads as follows:
88. Subject to the terms of any treaty
and any other Act of Parliament, all laws of general application from time to
time in force in any province are applicable to and in respect of Indians in
the province, except to the extent that those laws are inconsistent with this
Act or any order, rule, regulation or by-law made thereunder, and except to the
extent that those laws make provision for any matter for which provision is
made by or under this Act.
45
But as the opening words of this provision demonstrate, Parliament has
expressly declined to use s. 88 to incorporate provincial laws where the effect
would be to infringe treaty rights. And this Court held in R. v. Côté,
[1996] 3 S.C.R. 139, at para. 86, that one of the purposes of s. 88 is to
accord “federal statutory protection to aboriginal treaty rights”. Thus, on
its face, s. 88 cannot be used to incorporate into federal law provincial laws
that conflict with the terms of any treaty.
46
The clear language of this treaty exception in s. 88 is qualified by
statements in this Court’s jurisprudence that the provinces may regulate treaty
rights under certain circumstances. In Marshall No. 2, at para. 24, for
example, this Court held that
the federal and provincial governments [have the authority] within
their respective legislative fields to regulate the exercise of the treaty
right subject to the constitutional requirement that restraints on the
exercise of the treaty right have to be justified on the basis of conservation
or other compelling and substantial public objectives . . . . [Emphasis
added.]
That statement
must of course be read in the context of the particular right under
consideration in Marshall No. 1, namely a commercial right of access to
resources harvested (and traded) from the outset by aboriginals in common with
non-aboriginal inhabitants. After Confederation, some of the resources came to
be regulated federally (e.g. the fishery), while others were regulated
provincially (e.g. those harvested by trapping). In the case of the
provincially regulated resources, the Court was not prepared to read the treaty
right as requiring that access to them for purposes of commercial exploitation
be subject to parallel and potentially conflicting federal and provincial
oversight. That is not this case, which requires us to consider the more
general question of what degree of provincial legislative interference with a
non-commercial treaty right will trigger the s. 88 protection of treaty
rights. Further consideration of the Court’s position with respect to treaty
rights of a commercial nature should be left for a case where it is directly in
issue.
47
Where, as in this case, non-commercial rights are in issue, a
distinction must be drawn between insignificant interference with the exercise
of the treaty right and prima facie infringement of the right.
48
Regarding insignificant interference, this Court considered in Côté
whether a provincial regulation requiring the payment of a small access fee for
entry into a controlled harvest zone infringed a treaty right to fish. The fee
was not revenue generating, but was intended to pay for the ongoing maintenance
of roads and facilities within the controlled zone. Lamer C.J. held that this
provincial regulation “impose[d] a modest financial burden on the exercise of
th[e] alleged treaty right” (para. 88), thereby representing an insignificant
interference with a treaty right, and consequently did not infringe that right.
49
In contrast in Badger this Court considered that a licensing
scheme that imposed conditions as to the “hunting method, the kind and numbers
of game, the season and the permissible hunting area” (para. 92) infringed the
appellants’ treaty right to hunt. Cory J., writing for the majority, held that
this licensing scheme constituted a prima facie infringement of the
appellants’ treaty right to hunt, since it “denie[d] to holders of treaty
rights . . . the very means of exercising those rights” and was found to be “in
direct conflict with the treaty right” (para. 94).
50
Insignificant interference with a treaty right will not engage the
protection afforded by s. 88 of the Indian Act . This approach is supported
both by Côté and by R. v. Nikal, [1996] 1 S.C.R. 1013,
where Cory J. rejected the idea that “anything which affects or interferes with
the exercise of those rights, no matter how insignificant, constitutes a
prima facie infringement” (para. 91 (emphasis added)). Therefore,
provincial laws or regulations that place a modest burden on a person
exercising a treaty right or that interfere in an insignificant way with the
exercise of that right do not infringe the right.
51
A prima facie infringement, however, will trigger the s. 88
treaty right protection. In determining what constitutes a prima facie infringement
of a treaty right, it is helpful to consider the Court’s jurisprudence on this
point. In R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1112, Dickson C.J.
and La Forest J. listed three questions that may assist in this determination:
First, is the limitation unreasonable? Second, does the regulation
impose undue hardship? Third, does the regulation deny to the holders of the
right their preferred means of exercising that right?
52
As Lamer C.J. pointed out in R. v. Gladstone, [1996] 2 S.C.R.
723, care should be taken, in considering these questions, not to import an
element of justification when attempting to identify an infringement. He
stated the following, at para. 43:
The Sparrow test for infringement might
seem, at first glance, to be internally contradictory. On the one hand, the
test states that the appellants need simply show that there has been a prima
facie interference with their rights in order to demonstrate that those
rights have been infringed, suggesting thereby that any meaningful diminution
of the appellants’ rights will constitute an infringement for the purpose of
this analysis. On the other hand, the questions the test directs courts to
answer in determining whether an infringement has taken place incorporate ideas
such as unreasonableness and “undue” hardship, ideas which suggest that
something more than meaningful diminution is required to demonstrate
infringement. This internal contradiction is, however, more apparent than
real. The questions asked by the Court in Sparrow do not define the
concept of prima facie infringement; they only point to factors which
will indicate that such an infringement has taken place. Simply because one of
those questions is answered in the negative will not prohibit a finding by a
court that a prima facie infringement has taken place; it will just be
one factor for a court to consider in its determination of whether there has
been a prima facie infringement.
53
Essentially, therefore, a prima facie infringement requires a
“meaningful diminution” of a treaty right. This includes anything but an
insignificant interference with that right. If provincial laws or regulations
interfere insignificantly with the exercise of treaty rights, they will not be
found to infringe them and can apply ex proprio vigore or by
incorporation under s. 88 .
54
The protection of treaty rights in s. 88 of the Indian Act applies
where a conflict between a provincial law of general application and a treaty
is such that it amounts to a prima facie infringement. Where a
provincial law of general application is found to conflict with a treaty in a
way that constitutes a prima facie infringement, the protection of
treaty rights prevails and the provincial law cannot be incorporated under s.
88 .
55
Where a prima facie infringement of a treaty right is found, a
province cannot rely on s. 88 by using the justification test from Sparrow
and Badger in the context of s. 35(1) of the Constitution Act, 1982 ,
as alluded to by Lamer C.J. in Côté, at para. 87. The purpose of the
Sparrow/Badger analysis is to determine whether an infringement by a
government acting within its constitutionally mandated powers can be justified.
This justification analysis does not alter the division of powers, which is
dealt with in s. 88 . Therefore, while the Sparrow/Badger test for
infringement may be useful, the framework set out in those cases for
determining whether an infringement is justified does not offer any guidance
for the question at issue here.
3. Application to This Case
56
There is no treaty right to hunt dangerously. Thus, the prohibition
against hunting “without reasonable consideration for the lives, safety or
property of other persons” set out in s. 29 of the Wildlife Act is
a limit that does not infringe the Tsartlip’s treaty right to hunt. As stated
earlier, the requirement to hunt safely was clearly within the common intention
of the parties to the Treaty, as reflected by the language of the Treaty
itself, which restricts hunting to “unoccupied lands”. Where a treaty
beneficiary is proven to have hunted dangerously, the Treaty does not provide a
defence to charges brought under s. 29.
57
However, based on an understanding of the common intention of the
parties to the Treaty, the Tsartlip’s treaty right includes the right to hunt
at night with illumination, with the modern incarnation of their ancestral
method, namely the use of firearms.
58
The legislative prohibition set out in s. 27(1)(d) and (e) of the Wildlife
Act is absolute, and it applies without exception to the whole province,
including the most northern regions where hours of daylight are limited in the
winter months and populated areas are few and far between. The Legislature has
made no attempt to prohibit only those specific aspects or geographic areas of
night hunting that are unsafe by, for example, banning hunting within a
specified distance from a highway or from residences. The impugned provisions
are overbroad, inconsistent with the common intention of the parties to the
treaties, and completely eliminate a chosen method of exercising their treaty
right.
59
We respectfully disagree with our colleagues the Chief Justice and
Fish J. that nothing short of a total ban on night hunting can address
safety concerns. We believe that it would be possible to identify uninhabited
areas where hunting at night would not jeopardize safety. This finding is
supported by the evidence in this case that the Tsartlip’s practice of night
hunting with illuminating devices has never been known to have resulted in an
accident, and that the conservation officers, in setting up the location for
their mechanical decoy, were easily able to locate an area where night hunting
could be practised safely. These facts amply demonstrate how something less
than an absolute prohibition on night hunting can address the concern for
safety.
60
We have no difficulty concluding, therefore, that the categorical ban on
night hunting and hunting with illumination constitutes a prima facie infringement
of a treaty right. A categorical prohibition clearly constitutes more than an
insignificant interference with a treaty right. Although provincial laws of
general application that are inapplicable to aboriginal people can be incorporated
into federal law under s. 88 of the Indian Act , this cannot
happen where the effect would be to infringe treaty rights. Because paras. (d)
and (e) of s. 27(1) of the Wildlife Act constitute a prima facie infringement,
they cannot be incorporated under s. 88 of the Indian Act .
61
For these reasons, we would allow the appeal, set aside the convictions
and enter acquittals.
The reasons of McLachlin C.J. and Bastarache and Fish JJ. were
delivered by
The Chief Justice and Fish J.
(dissenting) —
I
62
Ivan Morris and Carl Olsen were caught in a trap set by conservation
officers to catch hunters who violate the law.
63
There is no dispute that Mr. Morris and Mr. Olsen violated a provincial
ban on hunting at night with a firearm. The appellants argue that the ban does
not apply to them in virtue of an aboriginal treaty signed in 1852. The Crown,
however, argues that the treaty conveys no right to hunt dangerously, and
asserts that this justifies a total ban on night hunting.
64
We conclude that the treaty right to hunt is subject to an internal
limitation which excludes dangerous hunting. We further conclude that hunting
at night with a firearm, as trial courts across the country have held, is
hazardous and validly prohibited on that ground by provincial legislation of
general application. In the result, we find that a provincial ban on night
hunting with a firearm does not affect the appellants’ treaty right to hunt.
65
With respect to those who are of a different view, we would therefore
dismiss the appeal and affirm the convictions of both appellants.
II
66
On the evening of November 28, 1996, the appellants were driving in the
woods when they spotted what they took for a deer. Morris, the driver, stopped
the vehicle to allow Olsen to shoot at the deer from the passenger seat. The
rifle was then passed by Olsen to Morris across two children who were also in
the front seat. Morris himself then fired two shots from outside the vehicle.
67
The appellants had in fact been shooting a decoy with reflecting eyes
set up by conservation officers to trap illegal hunters. They were charged
with the following offences under the British Columbia Wildlife Act,
S.B.C. 1982, c. 57: (1) hunting wildlife with a firearm during prohibited hours
(s. 27(1)(d)); (2) hunting wildlife by the use or with the aid of a light or
illuminating device (s. 27(1)(e)); (3) hunting without reasonable consideration
for the lives, safety or property of other persons (s. 29); and (4) discharging
a firearm at wildlife from a motor vehicle (Olsen only) (s. 28(1)).
68
They argued that they enjoy a right to hunt under the terms of the North
Saanich Treaty. That treaty was entered into by the ancestors of the Tsartlip Indian
Band and James Douglas, Chief Factor of the Hudson’s Bay Company and Governor
of the Colony of Vancouver Island at the time, and is generally referred to for
that reason as the “Douglas Treaty”.
69
There is no dispute that the appellants are covered by the Douglas
Treaty. It was admitted at trial that they are both Indians within the meaning
of the Indian Act, R.S.C. 1985, c. I-5 , and that they have ancestral
ties to the Tsartlip Indian Band, a member of the Saanich First Nation. It was
admitted as well that the ancestors of the Tsartlip Indian Band were
signatories to the Douglas Treaty and that the Douglas Treaty is a treaty
within the meaning of s. 88 of the Indian Act and s. 35(1) of the Constitution
Act, 1982 .
70
The outcome of this appeal therefore turns entirely on the nature and
extent of the right to hunt that may be set up in virtue of the Douglas Treaty
against the application of provincial hunting laws of general application, such
as the law that concerns us here.
III
71
At trial, Higinbotham Prov. Ct. J. concluded that all of the elements of
the offences of hunting with a firearm during prohibited hours and hunting by
the use or with the aid of a light or illuminating device contrary to s.
27(1)(d) and (e) of the Wildlife Act had been proven beyond a reasonable
doubt: [1999] B.C.J. No. 3199 (QL), at para. 24. In his view the appellants
had failed to establish that the Douglas Treaty protected them from prosecution
under those provisions. He reached this conclusion by applying R. v.
Sparrow, [1990] 1 S.C.R. 1075, where the Court set out an
infringement/justification framework for determining whether an impugned
statute passes constitutional muster.
72
With the Crown’s consent, Higinbotham Prov. Ct. J. conditionally stayed
the proceedings with respect to hunting wildlife by the use or with the aid of
a light or illuminating device because of the rule against multiple convictions
arising from the same delict (Kienapple v. The Queen, [1975] 1 S.C.R. 729)
and we have not been asked to revisit this matter.
73
Higinbotham Prov. Ct. J. declined to convict the appellants on the
charge of hunting without reasonable consideration for the lives, safety or
property of other persons for two reasons: First, because he was not satisfied
that the Crown’s specific allegations in respect of this count had been made
out; and second, because he could not “rely solely on the evidence that night
hunting is inherently unsafe to record a conviction on this count” (para. 25),
since this evidence had already founded the appellants’ convictions under s.
27(1)(d).
74
Higinbotham Prov. Ct. J. did, however, convict Mr. Olsen of discharging
a firearm at wildlife from a motor vehicle contrary to s. 28(1) of the Wildlife
Act.
75
Mr. Olsen and Mr. Morris appealed to the Supreme Court of British
Columbia, where Singh J. held that to exercise a treaty or aboriginal right
without due regard or consideration for public safety is not a reasonable
exercise of that right: [2002] 4 C.N.L.R. 222, 2002 BCSC 780. He therefore
concluded, without recourse to the Sparrow test, that the Wildlife
Act did not conflict with or impact on the treaty right. As a result, he
found that the appellants were in fact subject to the Wildlife Act,
which he accepted as valid provincial legislation of general application aimed
at ensuring safety.
76
The appellants further appealed to the Court of Appeal of British
Columbia, where each of the three justices who heard the appeal wrote separate
reasons: (2004), 25 B.C.L.R. (4th) 45, 2004 BCCA 121.
77
Thackray J.A. held that because s. 27(1) of the Wildlife Act
prohibits only hunting at night and not the right to hunt itself, it was a law
of general application that applied to Indians of its own force and effect (or,
as is sometimes said, “ex proprio vigore”).
78
Huddart J.A. concluded that the appellants did not establish that night
hunting was an element of the aboriginal right to hunt “integral to the
distinctive culture” of the Tsartlip (para. 213). In her view, the Wildlife
Act prohibition on night hunting therefore did not violate the core hunting
right protected by the treaty.
79
Lambert J.A. dissented. He held that the Wildlife Act affected
Indian laws, customs, traditions and practices in relation to hunting for food
and ceremonial purposes and therefore “str[uck] at the core of Indianness”
(para. 18). In his view, the core of Indianness encompasses within it the
right to hunt for food by the Indians’ own preferred means.
80
Accordingly, Lambert J.A. found that the Wildlife Act
prohibitions do not apply of their own force to members of the Tsartlip Indian
Band because only federal legislation can strike at the core of Indianness,
except where provincial legislation is incorporated into federal law (“invigorated”)
by s. 88 of the Indian Act .
81
With respect to s. 88 of the Indian Act , Lambert J.A. found that
the initial words “[s]ubject to the terms of any treaty” meant “that the
treaty, properly interpreted, cannot be impinged on or affected [in its
exercise] by the statutory provision” (para. 31). He went on to find that
the Wildlife Act prohibitions were in direct conflict with the treaty
right and therefore s. 88 could not be used to incorporate the impugned
provisions of the Wildlife Act.
IV
82
For the reasons that follow, we conclude that the impugned ban on night
hunting with a firearm is valid provincial legislation that applies to the
appellants. The relevant provisions of the Wildlife Act prohibit unsafe
hunting practices, which is in pith and substance a matter within the
legislative jurisdiction of the provinces. They do not conflict with federal
legislation and the doctrine of paramountcy therefore has no application.
Finally, the right to hunt protected by the Douglas Treaty is subject to an
internal limit: It does not include the right to hunt in an inherently
hazardous manner. Or, put differently, the right to hunt under the treaty must
be exercised reasonably and hunting practices that are inherently hazardous are
antithetical to the reasonable exercise of the right to hunt. The impugned
provision of the Wildlife Act regulates this internal limit. Since the
regulation of dangerous hunting falls outside the scope of the treaty right to
hunt, no treaty right is engaged. As there is no aboriginal right asserted,
and as the law does not otherwise go to Indianness, the law applies ex
proprio vigore and does not need to be incorporated by s. 88 in order to
apply to Indians.
V
83
Section 91(24) of the Constitution Act, 1867 gives Parliament
exclusive legislative authority over “Indians, and Lands reserved for the
Indians”. Aboriginal and treaty rights fall squarely within Parliament’s
jurisdiction under s. 91(24) .
84
Although s. 91(24) attributes exclusive jurisdiction over “Indians” and
“Lands reserved for the Indians” to Parliament, valid provincial legislation
normally applies to aboriginal persons. It is well established that “First
Nations are not enclaves of federal power in a sea of provincial jurisdiction”
(Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and
Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at para. 66).
85
The validity of a provincial enactment is a condition precedent to its
application to aboriginal Canadians. A provincial law that does not fall
within a provincial head of power is invalid and of no force or effect.
Provincial legislation that, in pith and substance, relates to “Indians” or
“Lands reserved for the Indians” — or any other matter within exclusive
federal jurisdiction — is ultra vires. However, provincial legislation
that merely has an incidental effect on a federal head of power is intra
vires: Paul v. British Columbia (Forest Appeals Commission), [2003]
2 S.C.R. 585, 2003 SCC 55, at para. 14. Such incidental effects are without
relevance for constitutional purposes (ibid.). For instance, in the
aboriginal context, provincial traffic legislation applies on reserves (see R.
v. Francis, [1988] 1 S.C.R. 1025). Valid provincial laws of this type apply
ex proprio vigore to aboriginal Canadians.
86
Determination of the pith and substance of an enactment requires an
examination of its purpose as well as its legal and practical effects: Kitkatla,
at paras. 53 and 54. Drawing on Chief Justice Dickson’s reasons in General
Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, LeBel
J. set out in Kitkatla, at para. 58, the proper approach for determining
the pith and substance of provincial legislation:
1. Do the impugned provisions intrude into a
federal head of power, and to what extent?
2. If the impugned provisions intrude into a
federal head of power, are they nevertheless part of a valid provincial
legislative scheme?
3. If the impugned provisions are part of a
valid provincial legislative scheme, are they sufficiently integrated with the
scheme?
87
The Wildlife Act falls in pith and substance within the
province’s powers. It is not directed at a federal head, like Indians, but
more generally at safety, a matter within provincial power. The impugned ban
on night hunting is an integrated part of a broader provincial scheme
applicable to all British Columbians and aimed at assuring the safety of the
province’s hunters and residents.
88
It follows that the impugned provision applies to the appellants, unless
it is excluded by one of the exceptions to the general rule that valid
provincial laws of general application apply to aboriginal Canadians.
Provincial laws will not apply to Indians if they conflict with federal
legislation or engage the doctrine of interjurisdictional immunity.
89
Under the paramountcy doctrine, valid provincial legislation will be
rendered inoperative if it enters into an operational conflict with valid
federal legislation. Such conflict will exist if simultaneous compliance with
both provincial and federal legislation is impossible or if the provincial
legislation displaces or frustrates the federal legislative purpose (Rothmans,
Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC
13). There is some debate as to the order in which the doctrine of paramountcy
and the doctrine of interjurisdictional immunity should be considered by a
court, particularly where s. 88 of the Indian Act is at issue: see K.
Wilkins, “Of Provinces and Section 35 Rights” (1999), 22 Dal. L.J. 185.
We do not find it necessary to resolve that debate in this case, since there is
no conflicting federal legislation on hunting; accordingly, the paramountcy doctrine
does not apply.
90
Under the doctrine of interjurisdictional immunity, valid provincial
legislation is constitutionally inapplicable to the extent that it intrudes or
touches upon core federal legislative competence over a particular matter.
Thus, exclusive federal jurisdiction under s. 91(24) protects “core Indianness”
from provincial intrusion: Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010, at para. 177. Valid provincial legislation which does not touch
on “core Indianness” applies ex proprio vigore. If a law does go to
“core Indianness” the impugned provincial legislation will not apply unless it
is incorporated into federal law by s. 88 of the Indian Act .
91
Indian treaty rights and aboriginal rights have been held to fall within
the protected core of federal jurisdiction: Simon v. The Queen, [1985] 2
S.C.R. 387, at p. 411; Delgamuukw, at para. 178. It follows that
provincial laws of general application do not apply ex proprio vigore to
the hunting activities of Indians that are protected by a treaty.
92
If, however, a provincial law of general application does not affect a
treaty right, and does not otherwise touch upon core Indianness, that law
applies ex proprio vigore, without recourse to s. 88 . Legislation that
falls outside the internal limits on the treaty right that the parties to the
treaty would have understood and intended would not encroach on the treaty
right.
93
Many aboriginal and treaty rights are subject to internal limits. In R.
v. Marshall, [1999] 3 S.C.R. 456 (“Marshall No. 1”), and R. v.
Marshall, [1999] 3 S.C.R. 533 (“Marshall No. 2”), the Court held
that the treaty right to trade for necessaries was subject to an internal limit
to a catch that would produce a moderate livelihood. In similar fashion,
safety may operate as an implicit or definitional limit on aboriginal or treaty
rights. In R. v. Badger, [1996] 1 S.C.R. 771, Cory J. wrote, at para.
89, that:
. . . reasonable regulations aimed at ensuring safety do not infringe
aboriginal or treaty rights to hunt for food. Similarly these regulations do
not infringe the hunting rights guaranteed by Treaty No. 8 as modified by the NRTA.
94
In R. v. Sundown, [1999] 1 S.C.R. 393, the Court held that “there
[is] no inconsistency in principle between a treaty right to hunt and the
statutory requirement that the right be exercised in a manner that ensured the
safety of the hunter and of others” (Cory J., for the Court, at para. 41,
citing Myran v. The Queen, [1976] 2 S.C.R. 137, at pp. 141-42; see also R.
v. Sutherland, [1980] 2 S.C.R. 451, at p. 460; Moosehunter v. The Queen,
[1981] 1 S.C.R. 282, at p. 289; and Simon, at p. 403).
95
Provincial legislation may apply to matters included within “core
Indianness” if it is incorporated by s. 88 of the Indian Act , which
provides:
88. Subject to the terms of any treaty
and any other Act of Parliament, all laws of general application from time to
time in force in any province are applicable to and in respect of Indians in
the province, except to the extent that those laws are inconsistent with this
Act or any order, rule, regulation or by-law made thereunder, and except to the
extent that those laws make provision for any matter for which provision is
made by or under this Act.
96
The Court clarified the effect of s. 88 of the Indian Act in Dick
v. The Queen, [1985] 2 S.C.R. 309. The Court noted that for the purposes
of s. 88 there are two categories of provincial laws: (1) laws which can be
applied to Indians without touching their Indianness; and (2) laws which cannot
apply to Indians without regulating them qua Indians (pp. 326-27). The
first category of provincial laws applies to Indians without any constitutional
difficulty. The second category cannot apply to Indians by reason of the
doctrine of interjurisdictional immunity. It is to this second category of
provincial legislation that s. 88 of the Indian Act is directed. Thus,
s. 88 incorporates provincial laws of general application that are otherwise
constitutionally inapplicable to Indians — laws that are precluded from
applying to Indians by the doctrine of interjurisdictional immunity because
they affect core Indianness, a matter under federal jurisdiction.
97
However, as may be readily observed from its text, s. 88 does not
incorporate all provincial laws that are otherwise inapplicable by reason of
the doctrine of interjurisdictional immunity. Section 88 operates, inter
alia, “[s]ubject to the terms of any treaty”. In other words, s. 88 cannot
incorporate a provincial law that conflicts with a treaty right.
98
What type or degree of conflict is required between a provincial law of
general application and a treaty to engage the treaty exception’s protection?
On the authorities, an insignificant burden on a treaty right is not enough:
see, for example, R. v. Côté, [1996] 3 S.C.R. 139, at para. 88. At the
other end of the spectrum, a more searching “unjustified infringement” test
would be inappropriate: Section 88 was adopted in 1951 (S.C. 1951, c. 29), more
than 30 years before the emergence of the concepts of justification associated
with s. 35 of the Constitution Act, 1982 were introduced.
99
In our view, a prima facie infringement test best characterizes
the degree of conflict required to engage the protection of the treaty
exception. Legislation that places no real burden on the treaty right does not
constitute a prima facie infringement and would not trigger the treaty
exception. Legislation which engages the internal limits of a treaty right
does not affect the treaty right at all, and therefore, a fortiori, does
not constitute a prima facie infringement.
100
On this basis, provincial regulatory authority over Indian treaty rights
may be summarized as follows:
1. Provincial laws directed at the regulation
of treaty rights are ultra vires;
2. Valid provincial laws of general application
that do not affect or infringe treaty rights apply to Indians either:
(a) ex proprio vigore; or
(b) through incorporation under s. 88, if they nevertheless touch
upon core Indianness in some other manner;
Valid provincial laws that fall outside of the scope of the treaty
right, by virtue of an internal limit on the treaty right, do not go to “core
Indianness”, and thus apply ex proprio vigore. They do not need to be
incorporated by s. 88; and
3. Valid provincial laws of general application
that constitute a prima facie infringement of treaty rights trigger the
treaty exception in s. 88 and are constitutionally inapplicable. Provincial
laws that impose only an insignificant burden on a treaty right (see Côté)
do not trigger that exception and are therefore incorporated by s. 88.
VI
101
Having already concluded that the impugned legislation falls under a
valid provincial head of power and does not conflict with any federal
legislation, we must now determine whether it goes to “core Indianness”. If it
does, it applies as a result of incorporation under s. 88; if not, the law
applies ex proprio vigore. The appellants’ claim that night hunting
does go to Indianness is based on their right to hunt under the Douglas
Treaty. In order to determine, then, whether the ban applies to them ex
proprio vigore, we must ascertain the scope and extent of the right to hunt
enshrined in that treaty.
102
The treaty right is set out in para. 2 of the Douglas Treaty, which
reads:
It is understood, however, that the land itself, with these small
exceptions, becomes the entire property of the white people for ever; it is
also understood that we are at liberty to hunt over the unoccupied lands, and
to carry on our fisheries as formerly.
103
This case proceeded on the Crown’s concession that the words “as
formerly” modified the “liberty to hunt over the unoccupied lands” as well as
the “liberty . . . to carry on our fisheries”. In our view, this branch of the
matter merits little discussion: The scope of the right to hunt under the
Douglas Treaty is not at all dependant on the Crown’s concession.
104
For ease of reference, we recall here the findings below.
105
In the Court of Appeal, Lambert J.A. defined the appellants’ treaty
right as the right to hunt for food and ceremonial purposes according to the
Indians’ preferred means in accordance with their own laws, customs, traditions
and practices, and the safety practices which regulate the manner of hunting
(para. 49). Huddart J.A. found that the treaty protected only those rights
that are “integral to the distinctive culture” of the Tsartlip (para. 208) and
that night hunting, while a traditional practice of convenience, is not part of
the core right to hunt protected by the treaty. Singh J. of the British
Columbia Supreme Court held that the Douglas Treaty protected a right to hunt
as well as the methods and means of hunting. He held nonetheless that the
treaty right does not contemplate or, still less, confer a right to hunt
dangerously, there being an implicit limitation to the treaty right that
prevents unsafe hunting.
106
We prefer the interpretation of Singh J. In our respectful view,
Huddart J.A.’s approach tends to blur the distinction between an aboriginal
right and a treaty right and Lambert J.A.’s interpretation disregards the
internal safety limitations to which that right is necessarily subject.
107
The scope of a treaty right and its internal limits is essentially a
matter of treaty interpretation, which in turn refers us back to the intention
of the parties to the treaty. “The goal of treaty interpretation is to choose
from among the various possible interpretations of common intention the one
which best reconciles the interests of both parties at the time the treaty was
signed” (Marshall No. 1, at para. 78, per McLachlin J. (as
she then was), dissenting on other grounds).
108
When the Douglas Treaty was signed, hunting at night was not uncommon.
Nor was it particularly dangerous. It would not have been surprising had both
the Crown and the North Saanich aboriginals contemplated that the aboriginals
would continue to hunt at night. At the time, this practice did not pose the
same dangers as it does today (which dangers will be explained in detail
below). And the parties may not have even had reason to anticipate that the
dangers would grow. But they could not have believed that the right to hunt
included a right to hunt dangerously. To impute that belief to them would do
injustice to both parties and, would in addition, defy common sense.
109
We use the phrase “hunting dangerously” or “hunting in an unsafe manner”
or like expressions in this decision to signify hunting in a manner or under
conditions that involve an inherent and especially elevated risk to the lives
and safety of others.
110
In our view, the parties to the Douglas Treaty must have understood that
the right to hunt did not carry with it a right to hunt in an unsafe manner.
They must have understood as well that the Crown did not abdicate its interests
or its responsibilities in this regard. The Crown was preoccupied by the need
to secure the safety of the settlers. Hunting in an unsafe manner could not
have been thought to serve the interests of the aboriginals any more than the
interests of the Crown. To find that the Douglas Treaty enshrined a right to
hunt in an unsafe manner is plainly irreconcilable with the third Marshall principle:
Treaties must be interpreted in a manner that best reconciles the interests of
the parties to it.
111
On this point, we find the reasoning of the New Brunswick Court of
Appeal in R. v. Paul (1993), 142 N.B.R. (2d) 55, in relation to an
aboriginal treaty right to hunt next to private dwellings, particularly
compelling:
In my view, Mr. Paul’s treaty rights must be
considered in the context of their exercise. Lamer J., as he then was, said in
Sioui at p. 1072 that he “could not believe that the Hurons ever
believed that the Treaty [of 1760] ever gave them the right to cut down
trees in a garden as part of their right to carry on their customs”.
Similarly, and unlike the trial judge, who said that “status Indians” may
exercise their treaty rights even in a manner that “is inherently dangerous”, I
cannot believe that the Indians of the St. John ever believed that they could
exercise the rights given them in the Treaty of Boston of 1725 in an
unsafe manner. . . . [para. 18]
112
The ninth principle of treaty interpretation laid down in Marshall
No. 1 further supports this conclusion: “Treaty rights of aboriginal
peoples must not be interpreted in a static or rigid way. They are not frozen
at the date of signature. The interpreting court must update treaty rights to
provide for their modern exercise.” (para. 78)
113
The appellants argue that using the ninth principle to restrict rather
than expand the scope of a treaty right would “turn this [principle] on its
head”.
114
As will be more fully explained below, since 1852, the dangers of night
hunting have been amplified with the development of modern weaponry. In our
view, treaty rights are not impervious to changes of this sort. They do not
evolve in a social, environmental or technological vacuum. A right to hunt is
not transformed into a right to hunt in an unsafe manner by disregarding
unforeseen dangers or new risks.
115
Quite the contrary, the ninth principle simply acknowledges that
treaties must be interpreted in a manner that contemplates their exercise in modern
society. Just as the methods and means of exercising the right should not be
frozen in time, neither should the government’s legitimate safety concerns.
Adapting the exercise of treaty rights to modern weaponry without adapting the
corollary legitimate safety concerns would lead to unacceptable results. One
cannot reasonably focus on the former and turn a blind eye to the latter.
116
In R. v. Marshall, [2005] 2 S.C.R. 220, 2005 SCC 43, this Court
held that only the logical evolution of a pre-treaty practice will attract
treaty protection. In that case, the evidence showed only a pre-treaty
practice of some limited trade in wood products. This evidence was
insufficient to establish a treaty right to engage in commercial logging.
McLachlin C.J., for the majority, described the standard in these terms:
Of course, treaty rights are not frozen in time.
Modern peoples do traditional things in modern ways. The question is whether
the modern trading activity in question represents a logical evolution from the
traditional trading activity at the time the treaty was made; Marshall 2,
at para. 20. Logical evolution means the same sort of activity, carried on in
the modern economy by modern means. This prevents aboriginal rights from being
unfairly confined simply by changes in the economy and technology. But the
activity must be essentially the same. “While treaty rights are capable of
evolution within limits, . . . their subject matter . . . cannot be wholly
transformed” (Marshall 2, at para. 19). [para. 25]
117
In our view, when the same sort of activity carried on in the modern
economy by modern means is inherently dangerous, that dangerous activity will
not be a logical evolution of the treaty right.
118
It is true, as the appellants assert, that the treaty protects from
encroachment the means and methods of its exercise, such as: timing of the hunt
(R. v. White (1965), 52 D.L.R. (2d) 481 (S.C.C.), aff’g (1964), 50
D.L.R. (2d) 613 (B.C.C.A.); “season, method [and] limit” of the hunt (Sutherland,
at p. 460); “method, timing and extent” of the hunt (Badger, at para.
90)).
119
However, the fact that the treaty protects the means and methods of
hunting does not negate the internal limit on the right: the treaty hunting
right does not include the right to hunt in a manner that endangers the safety
of the hunter or others. Because dangerous hunting falls outside the scope of
the protected treaty right, the province is free to regulate in this area. The
issue of safety was not addressed in Prince v. The Queen, [1964] S.C.R.
81, and that case’s reference to night hunting should not be understood without
reference to the subsequent jurisprudence of this Court with respect to safety,
including Myran, which dealt specifically with the proper interpretation
of Prince.
120
In Myran, Dickson J. (as he then was), speaking for the Court,
explained the interplay between “means and methods” jurisprudence and safety
this way:
I think it is clear from Prince . . . that
an Indian of the Province is free to hunt or trap game in such numbers, at such
times of the year, by such means or methods and with such contrivances, as he
may wish, provided he is doing so in order to obtain food for his own use and
on unoccupied Crown lands or other lands to which he may have a right of
access. But that is not to say that he has the right to hunt dangerously and
without regard for the safety of other persons in the vicinity. Prince
. . . deals with “method”. Neither that case nor those which preceded it dealt
with the protection of human life. I agree with what was said in the present
case by Mr. Justice Hall in the Court of Appeal for Manitoba:
In the present case the governing statute is The
Wildlife Act, supra, and in particular Sec. 41(1) thereof. Section
10(1) under which the accused were charged does not restrict the type of game,
nor the time or method of hunting, but simply imposes a duty on every person of
hunting with due regard for the safety of others. Does that duty reduce,
detract or deprive Indians of the right to hunt for food on land to which they
have a right of access? If one regards that right in absolute terms the answer
is clearly in the affirmative; but is that the case? Surely the right to hunt
for food as conferred or bestowed by the agreement and affirmed by the statute
cannot be so regarded. Inherent in the right is the quality of restraint, that
is to say that the right will be exercised reasonably. Section 10(1) is only a
statutory expression of that concept, namely that the right will be exercised
with due regard for the safety of others, including Indians. [pp. 141-42]
121
The overarching principle, now firmly entrenched in our jurisprudence,
is that public safety enjoys preeminent status in matters of this kind. Or to
use the words of Myran, the right must be exercised reasonably.
VII
122
We have concluded that the treaty right to hunt upon which the
appellants rely in this case is subject to the internal limit that it cannot be
exercised in a manner that is dangerous to the safety of the hunter or others.
This is a general description of the limitation. We must still determine how
this internal limit may be validly expressed in the regulatory context. Are
the courts limited to case-by-case after the fact inquiries into whether a
particular hunter on a particular occasion exercised the treaty right to hunt
unsafely? Or can the province pass legislation or adopt regulations that
define the limits of the right in a way that can be administered and understood
by the aboriginal community?
123
The answer to this question is found in this Court’s jurisprudence,
which affirms the right of the province to determine and direct in advance the
limits of a treaty right in a particular regulatory context, provided it does
so reasonably. As Cory J., writing for the majority in R. v. Nikal,
[1996] 1 S.C.R. 1013, stated:
It has frequently been said that rights do not exist in a vacuum, and
that the rights of one individual or group are necessarily limited by the
rights of another. . . . The government must ultimately be able to determine
and direct the way in which these rights should interact. Absolute freedom
in the exercise of even a Charter or constitutionally guaranteed
aboriginal right has never been accepted, nor was it intended. . . . Absolute
freedom without any restriction necessarily infers a freedom to live without
any laws. Such a concept is not acceptable in our society. [Emphasis added;
para. 92.]
124
Similarly, in Marshall No. 1, the Court, after concluding that
the treaty right to fish was inherently limited to quantities reasonably
expected to produce a moderate livelihood, stated:
Catch limits that could reasonably be expected to
produce a moderate livelihood for individual Mi’kmaq families at present-day
standards can be established by regulation and enforced without violating the
treaty right. In that case, the regulations would accommodate the treaty
right. Such regulations would not constitute an infringement that would
have to be justified under the Badger standard. [Emphasis in original;
para. 61.]
The Court
reaffirmed the province’s right to define the reasonable limits of treaty
rights through regulation in Marshall No. 2, stating:
. . . regulations that do no more than reasonably define the
Mi’kmaq treaty right in terms that can be administered by the regulator and
understood by the Mi’kmaq community that holds the treaty rights do not
impair the exercise of the treaty right . . . . [Underlining added; para.
37.]
125
These holdings are consistent with this Court’s assertion in Myran
that the treaty right must be exercised in a reasonable manner. Reasonable
regulatory restrictions, including blanket prohibitions, which address
legitimate safety concerns, will not infringe the treaty right.
126
The question before us is thus whether the province’s ban on night
hunting constitutes a reasonable exercise of the province’s power to regulate
the internal safety limit on the appellants’ treaty right. Or, put
differently, is this ban a reasonable way, in the regulatory context of the
Province of British Columbia, to articulate the internal safety limitation on
the treaty right to hunt?
127
The trial judge found that it was. He stated:
[I]t is undeniably true that the Province of British Columbia has taken
a firm and consistent attitude against night hunting, based upon the advice
from conservation officers, that the practice is inherently unsafe. Certainly
the evidence in this case supports such a finding. It is night hunting that
brings added and unacceptable danger, according to the evidence. The evidence
establishes that it is dangerous to permit the use of high-powered rifles in
the dark, and to leave it to individual hunters to use their common sense to
minimize those risks in the face of a sudden opportunity to kill game.
.
. .
[I]t is apparent that the use of lights at night brings a new set of
problems, even as it eliminates others. Most important, it brings the problem
of tunnel vision, where the hunter becomes so focussed on the illuminated
target, he tends to fail to be sufficiently aware of the periphery of his view,
or even the background. This leads to a significant risk of accidental injury
to persons or property. I do not question that proper training and other
measures can be taken to reduce the risk, but we do not live in a perfect
world. The statutory provision is directed at the issue of safety, and is
reasonable on its face as a measure to help ensure that needless risk is
avoided. [paras. 11 and 13]
128
These findings, shared by trial and appellate courts across the country,
are manifestly reasonable. See R. v. Seward (1999), 171 D.L.R. (4th)
524 (B.C.C.A.); R. v. Bernard (2002), 200 N.S.R. (2d) 352, 2002
NSCA 5, leave to appeal refused, [2002] 3 S.C.R. vi; R. v. Pariseau,
[2003] 2 C.N.L.R. 260 (Que. C.A.); R. v. Southwind, [1991] O.J. No. 3612
(QL) (Prov. Div.); R. v. King, [1996] O.J. No. 5458 (QL) (Prov. Div.);
R. v. Harris, [1998] B.C.J. No. 1016 (QL) (Prov. Ct.); R. v. Ice,
[2000] O.J. No. 5857 (QL) (C.J.); R. v. Stump, [2000] 4 C.N.L.R. 260
(B.C. Prov. Ct.); R. v. Barlow (2000), 228 N.B.R. (2d) 289 (Q.B.), leave
to appeal refused, [2001] N.B.J. No. 145 (QL), 2001 NBCA 44; Turner v.
Manitoba (2001), 160 Man. R. (2d) 256, 2001 MBCA 207; R. v. Augustine (2001),
232 N.B.R. (2d) 313 (Q.B.), leave to appeal refused, [2001] N.B.J. No. 190
(QL), 2001 NBCA 57; R. v. Maurice, [2002] 2 C.N.L.R. 273, 2002
SKQB 68; R. v. Pitawanakwat, [2004] O.J. No. 2075 (QL), 2004 ONCJ 50; R.
v. Yapput, [2004] O.J. No. 5055 (QL), 2004 ONCJ 318. For the opposing view
see: R. v. Maple, [1982] 2 C.N.L.R. 181 (Sask. Prov. Ct.); R. v. Machimity,
[1996] O.J. No. 4365 (QL) (Prov. Div.); and R. v. Polches (2005), 289
N.B.R. (2d) 72, 2005 NBQB 137.
129
The conclusion that a ban on night hunting is a reasonable exercise of
the Province’s regulatory power in defining the internal limit on the treaty
right flows naturally and logically from the defining feature of nighttime —
that is, darkness. The evidence at trial was more than sufficient to establish
that one’s ability to identify objects, estimate distances and observe
background and surrounding items is greatly diminished in the dark, posing a
real danger to other members of the public.
130
This added danger to hunting causes the risks associated with hunting at
nighttime with a firearm to be unacceptably high. The Wildlife Act prohibition
is a reasonable response to a real danger.
131
In Seward, the British Columbia Court of Appeal put it
succinctly:
The introduction of rifles has significantly heightened the danger of
hunting. Not just the hunters, but anyone within a mile radius of a hunter is
at risk. This is especially so at night when the fact of darkness transforms a
dangerous endeavour into a hazardous one. It does not matter that an
individual might be able to hunt at night without injuring anyone, the fact is
that the possibility of death or injury is increased when visibility is
decreased and one or more hunters are in the woods. [para. 47]
132
The impugned legislation thus regulates an area which lies entirely
outside the treaty right to hunt. It therefore does not conflict at all with
the treaty right. No aboriginal right is asserted, and absent a conflicting
treaty or aboriginal right, reasonable provincial safety regulation of
dangerous hunting practices cannot be said to intrude upon “core Indianness”.
It follows that the Wildlife Act prohibition on night hunting with a
firearm is a valid provincial law applicable to the appellants ex proprio
vigore and without recourse to s. 88 .
133
We are not persuaded by the appellants’ submission that the provincial
power to legislate with respect to safety is restricted to the ability to
prohibit unsafe hunting in a general manner. If provinces can prohibit
“unsafe hunting”, there is no reason why they should be precluded from
identifying particular practices that are unsafe. This falls within the power
of the provinces to reasonably regulate the internal limits on treaty rights,
affirmed in Marshall No. 1 and No. 2 and Sundown.
134
Finally, we offer two brief observations concerning the joint reasons of
Justices Deschamps and Abella.
135
First, in their view, the question on this appeal is the extent to
which, if at all, provinces may validly interfere with treaty rights. With
respect, we only reach that question if the impugned provincial legislation is
first found to affect a treaty right. In this case, we are agreed that the
Douglas Treaty does not confer a right to hunt dangerously. This renders
hypothetical the question posed by our colleagues.
136
Second, Justices Deschamps and Abella find that a ban on hunting with a
modern firearm at night is overly broad. They believe that the Douglas Treaty
countenances only more limited prohibitions. In our respectful view, this
constraint undermines the objective of legislation relating to a hunting
practice which courts have consistently found inherently involves an
unacceptable and elevated risk to the public.
137
The constitutional questions in the present appeal were stated as
follows:
l. Do ss. 27(1)(d) and (e) of the Wildlife
Act, S.B.C. 1982, c. 57, constitutionally apply of their own force to the
appellants in view of Parliament’s exclusive legislative authority under s.
91(24) of the Constitution Act, 1867 ?
2. If not, do ss. 27(1)(d) and (e) of the Wildlife
Act, S.B.C. 1982, c. 57, nonetheless apply to the appellants by virtue
of s. 88 of the Indian Act, R.S.C. 1985, c. I-5 ?
138
Since the proceedings relating to s. 27(1)(e) were conditionally stayed
and no objection was made on appeal, it is not necessary for purposes of this
appeal to assess the constitutionality of s. 27(1)(e).
139
With respect to s. 27(1)(d), the first question should be answered in
the affirmative. Having concluded that s. 27(1)(d) of the Wildlife Act
is a reasonable law of general application directed at safety that does not
engage the appellants’ treaty rights, and which applies ex proprio vigore,
it is not necessary to answer the second question.
140
For these reasons, we would dismiss the appeal.
Appeal allowed, McLachlin C.J.
and Bastarache and Fish JJ. dissenting.
Solicitors for the appellants: Mandell Pinder, Vancouver.
Solicitor for the respondent: Ministry of the Attorney General,
Victoria.
Solicitor for the intervener the Attorney General of
Canada: Department of Justice, Vancouver.
Solicitor for the intervener the Attorney General of
Ontario: Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of
Quebec: Department of Justice, Sainte‑Foy.
Solicitor for the intervener the Attorney General of
New Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General for
Saskatchewan: Saskatchewan Justice, Regina.
Solicitor for the intervener the Attorney General of
Alberta: Alberta Justice, Calgary.
Solicitor for the intervener the Eagle Village First Nation (Migizy
Odenaw): Diane Soroka Barrister and Solicitor Inc., Westmount.
Solicitors for the intervener the Red Rock Indian
Band: Duboff Edwards Haight & Schachter, Winnipeg.
Solicitors for the intervener Conseil de la Nation huronne‑wendat: Langlois
Kronström Desjardins, Québec.
Solicitors for the intervener Te’mexw Treaty
Association: Cook Roberts, Victoria.
Solicitors for the intervener Chief
Allan Claxton: Woodward and Co., Victoria.
Solicitors for the intervener Chief Roger William: Rosenberg
& Rosenberg, Vancouver.