High court ruling allows natives to hunt at night

Judgment overturns earlier decision in B.C. case that said safety concerns outweighed treaty rights

December 22, 2006

Allan Dowd
reuters news agency
Toronto Star

VANCOUVER–A divided Supreme Court of Canada ruled yesterday that some B.C. native people may hunt at night using lights, overturning a lower court ruling that said safety concerns usurp treaty rights.

The high court overturned the convictions of two members of British Columbia's Tsartlip Indian Band, who were arrested after they shot a fake deer set up by wildlife officers seeking to catch illegal night hunters.

The men had argued that their right to hunt at night using lights was protected by a treaty signed in 1852 between the Indian band and the governor of the then-British colony of Vancouver Island on Canada's Pacific Coast.

A lower court ruled that although the Tsartlip people had historically used illumination during night hunts, the practice was not protected by a treaty right because it was "inherently unsafe."

Hunters use spotlights to blind or "freeze" an animal and make it an easier target, but the nighttime darkness makes it difficult for hunters to see other people or houses that might be hit by accident.

The Supreme Court, in a 4-3 ruling, said it accepted evidence that the Tsartlip had never had a serious accident in generations of hunting at night using illumination.

"Protected methods of hunting cannot ... be wholly prohibited because in some circumstances they could be dangerous. All hunting, regardless of the time of day, has the potential to be dangerous," Supreme Court justices Marie Deschamps and Rosalie Abella wrote for the majority.

The court's minority said the 1852 treaty did not envision the dangers of hunting at night using high-powered rifles, and noted that in the case before the court, the hunters had fired the first shot while sitting in a vehicle with two children.

The court ruled unanimously earlier this month that Canada's aboriginal rights were not trapped in time and could evolve with changing lifestyles and technology.

Native groups praised the ruling, saying it showed that treaties took precedence over provincial laws, and said the decision would have an impact across Canada.

"It is a victory not only for the present generation, but for our future generations as well," said Wayne "Ivan" Morris, one of the two men charged in the case.

But the head of the British Columbia Wildlife Federation told the CBC the ruling created safety concerns, especially because the Tsartlip's traditional territory is in a relatively densely populated area of Vancouver Island.