When I first read the judgment from the Supreme Court on night hunting by aboriginals my initial thought was, “what are they smoking in the judge’s chambers? After I had read the judgment I modified that to “what were four of the judges smoking in chambers”?
The story is that in 1996, two members of the Tsarlip Indian Band on Vancouver Island had been charged and eventually convicted of hunting deer at night, which is illegal, due to safety reasons, right across Canada and the U.S.
Arguing that they had traditionally hunted at night with lights they challenged their conviction based on the argument that their treaty rights were being infringed.
This argument was based on the fact that their band was covered under the North Saanich Treaty of 1852, that guaranteed that the Saanich Tribe “are at liberty, to hunt over the unoccupied lands, and carry on our fisheries as formerly”. The key word being “formerly”. They argued that because it was part of their hunting tradition, that they were guaranteed to be able to continue this method of hunting.
In a split 4 to 3 decision the Supreme Court of Canada allowed the appeal and set aside the convictions.
The four assenting Justices, Binnie, Deschamps, Abella and Charron agreed that there was no treaty right to “hunt dangerously”, but that “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 …”.
The esteemed judges did concede that “if a night hunt is dangerous in particular circumstances, it can (and should) be prosecuted …”.
That makes the Conservation Officer’s job much tougher. Unless someone is lying on the ground dead or there is a bullet hole through the kitchen window, who’s to say the circumstances weren’t safe?
A nice touch was their concept of the northern part of the province:
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.
I get the impression that their view of British Columbia is a roadless wilderness north of Prince George or possibly even the Okanagan.
In the dissenting view by Justices McLachlin, Bastarache and Fish, they state:
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.
Unfortunately, their arguments did not carry the day.
There is always talk in cases such as this that the changes in technology should be taken into consideration. Birchbark torches being replaced by high-power lights, canoes and horse by trucks and ATVs and the bow and arrow by high power rifle with scopes. But this judgment speaks very clearly to that opinion:
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.
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,  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,  1 S.C.R. 393).
It is worthwhile to read through the complete judgment to gain an insight into how the judicial mind works. Personally, I think that the dissenting three got it right, but that is the risk every time you go into court. Whether it is local or Supreme, you never know how it is going to play out.