Supreme Court recognizes treaty right to hunt at night

By Lloyd Dolha

At a press conference just before Christmas, representatives of the Tsartlip First Nation and the Union of BC Indian Chiefs welcomed a majority ruling by the Supreme Court of Canada which upheld a Tsartlip treaty right to hunt at night, as set out in one of the pre-confederation Douglas treaties.

“The evidence in this case showed that the Tsartlip people are a people who harvest many resources at night,” said lawyer Ardith Walkem, legal counsel to the Tsartlip First Nation. “Night hunting and harvesting resources at night is a really important part of who the Tsartlip people are.”

The ruling of the Supreme Court is the first time a Canadian court has acknowledged that the provisions of the North Sannich Treaty of 1852, are paramount over provincial laws of general application which ban the practice in the interest of public safety.
Ivan Wayne Morris, one of the two Tsartlip hunters charged with night hunting which gave rise to the Supreme Court ruling, said the decision is a victory for future generations of their people.
“These rights are supposed to protected for me and our people, as well as our children and our grandchildren,” said Morris. “It’s not a case for Ivan Wayne Morris or Carl Wilson. It’s for our people. It’s for the right. That’s what we were looking for and today is a victory for all of us in the sense that our rights are now protected.”

The recognition of the right has been over ten years in the making since Morris and Wilson were charged with night hunting with the aid of an illuminating device on November 28, 1996 within their traditional territory on Vancouver Island.
The pair were set up in a sting operation by conservation officers after members of a local rod and gun club complained of the practice in the interests of public safety.

Over the course of ten years, up through every court in the judicial system, judges recognized the legitimacy of the right to hunt as formerly specified by the treaty (the Tsartlip historically used pitch torches and lamps), but upheld charges in the interest of public safety.

Co-counsel Louise Mandell noted the decision affirmed the ancient treaty relationship between the Crown and First Nations and allows the future of the province to arise from an acknowledged past. Mandell said the decision sends a clear message to Victoria that the province can no longer pass laws and wrap themselves in government policy without understanding the harvesting right and ensuring its proper implementation.

UBCIC president Chief Stewart Phillip said the Supreme Court recognized the intent of the Douglas treaty to protect and preserve the Tsartlip peoples’ way of life.
“There is a need in this country and province to shift the attitude and mindset of government legislators to understand what the Supreme Court is saying, time and time again, needs to be translated into a significant transformation of existing legislation and policies that do impact blatantly on our aboriginal rights and title.”

In rendering their decision, the majority concluded the blanket ban on night hunting is not necessarily dangerous.
“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. … We believe that it would be possible to identify uninhabited areas where hunting at night would not jeopardize safety,” wrote the majority.

What is ironic about the decision is that the number one concern of public safety was defeated by the method in which the sting operation was conducted in the first place. As explained by Mandell, the very fact that the conservation officers set their trap in a remote area, with public safety in mind, demonstrated the area could be used for night hunting.

“In other words, the province’s own method of trying to entrap the hunters was itself proof that there could be safe hunting at night in this location,” said Mandell. She explained further that the treaty right to hunt at night is specified as taking place only on unoccupied lands, so there’s already a safety component build into the treaty itself.

Morris said he didn’t expect the general public to understand their practice of night hunting.

He said his elders told him, “We moved the days.”
Still, people like Wilf Pfleiderer, president of the BC Wildlife Federation (BCWF) remain unconvinced.

“We need to sit down with the First Nations leadership and determine how we can deal with the conflict between the treaty right of the Tsartlip and the public’s right to use Crown land safely,” he said.

He said the First Nation’s right to harvest for cultural, ceremonial and sustenance needs is respected by the federation, but the “use of modern technology carries with it the accountability to abide by the common sense rules and penalties for its misuse that must be applicable to everyone.”

He said the Supreme Court ruling “defies common sense.”
“We must realize the public safety risk this has created,” said Pfeiderer. “The recognized safety issues and conservation concerns have evolved regulations that do not support night hunting in light of the evolution of the equipment used for hunting and the increased loss of animals through wounding it has created.”