Today’s post looks at the Supreme Court of Canada’s decision of R v Morris, an Aboriginal hunting rights case. The question posed to the Court was “whether a provincial government acting within its constitutionally mandated powers can interfere with treaty rights and, if so, to what extent.”
Background & Facts
Morris and Olsen were arrested for breaches of prohibitions contained within the Wildlife Act, including:
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)). 
The charges were the result of a decoy operation, following a “rod and gun” club meeting, where members expressed dissatisfaction of Indigenous persons engaging in night hunting. As a defence to the above charges, Morris and Olsen argued their right to hunt was protected by the North Saanich Treaty of 1852.
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 evidence that night hunting had not resulted in any accidents to date, he concluded that there was no treaty right to hunt at night because it was “inherently unsafe.” Both men were subsequently convicted under s.27(1)(d) (prohibited hours), and Olsen solely under s.28(1) (from motor vehicle). They were acquitted of s.29 (safety), and the charges were stayed in terms of s.27(1)(e) (illumination). The convictions under s.27(1)(d) were upheld by both summary convictions appeal judge as well as the Court of Appeal of British Columbia. 
The only provisions at issue before the SCC in this decision were s. 27(1)(d) and (e), in relation to night hunting, and the aid of light or illuminating device.
Analysis & Application
The Court divided their analysis into two parts:
- Whether the impugned provisions of the Wildlife Act impair a treaty right (this involves characterizing the scope of the treaty right claimed by Morris and Olsen and delineating any limits on that right).
- 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. 
The Court discussed the treaty right in question between the Crown and the Saanich. The treaty commitment important to this case read “it is . . . understood that we [the Saanich Tribe] are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.”  Although the wording of such guarantee suggests freezing the exercise of the right to the time at signing, the Court refused this approach. The Court instead gave a liberal interpretation, in line with the Marshall decision, citing “[t]reaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories”. Upon applying this approach to their analysis of the facts, the Court determined that the Tsartlip’s treaty rights include the right to hunt at night and with illumination, and consequently the Wildlife Act impaired this right. 
The Court held that the legislative prohibitions set out in s. 27(1)(d) and (e) of the Wildlife Act, although valid provincial law, were nonetheless overbroad, inconsistent with the common intention of the parties to the treaties, and completely eliminated a chosen method of exercising their treaty right. In order for provincial legislation to be applicable, it can only insignificantly interfere with a treaty right (anything more is a prima facie impairment of the treaty right). In applying this ratio to the facts, the Court found that the prohibitions involved a categorical ban on night hunting and hunting with illumination, which goes beyond a insignificant interference with a treaty right, and as such constitutes a prima facie infringement of a treaty right. 
In terms of s.88 of the Indian Act, Justices Deschamps and Abella for the majority stated:
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. 
Thus, the impugned provisions of the Wildlife Act were not applicable in this case. For the above reasons, the Court allowed the appeal, set aside the convictions under s.27(1)(d) and (e), and entered acquittals for Morris and Olsen. 
Note: For Chief Justice McLachlin and Jutsice Fish’s dissent click here (paragraphs 62 +)
Until next time,
Team ReconciliAction YEG
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 R v Morris,  2 SCR 915 at para 1, 274 DLR (4th) 193.
 Ibid at para 6.
 Ibid at para 8.
 Ibid at para 3.
 Ibid at paras 11-13.
 Ibid at paras 14-15.
 Ibid at para 17.
 Ibid at para 29.
 Ibid at para 41.
 Ibid at para 58.
 Ibid at para 60.
 Ibid at para 61.
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