Post by Woody Williams on Oct 14, 2005 11:59:41 GMT -5
www.theglobeandmail.com/servlet/story/RTGAM.20051014.wxsupreme14/BNStory/National/
Hunting trip takes men to top court
Case steeped in history pits native rights against B.C.'s provincial safety regulations
By RICHARD BLACKWELL
Friday, October 14, 2005
Globe and Mail
Late in the evening of Nov. 28, 1996, Ivan Morris and Carl Olsen, two members of the Tsartlip First Nation on Vancouver Island, set out on a hunting trip near the town of Youbou, along with Mr. Morris's two young
sons.
They were driving a truck along a deserted road, shining a flashlight into the woods, when they saw what they thought was a deer. Mr. Olsen took three shots from the passenger seat, then passed the gun to Mr. Morris, who stepped outside and took two more.
What they were shooting at was a decoy -- a mechanical deer with reflective eyes -- set up by provincial conservation officials. The officers interrupted the hunt, and a few days later Mr. Morris and Mr.
Olsen were charged with, among other things, breaching British Columbia's Wildlife Act by hunting during prohibited hours with the use of a light.
That incident has set off a series of legal challenges over the past nine years. B.C. Supreme Court and the province's Court of Appeal upheld the convictions of the two men. The case will culminate today at a hearing in front of the Supreme Court of Canada.
The specific question before the court is whether the provincial Wildlife Act, which prohibits hunting at night, should apply to native people who are hunting under the terms of the North Saanich Treaty of 1852.
The broader issue in this case -- and the reason it has gone as far as Canada's top court -- is whether provincial laws can supersede a treaty to protect the public good.
Historically, only the federal government had the power to determine the specifics of treaty rights, said Robert Janes, the lawyer for the Te'mexw Treaty Association on Vancouver Island, an intervenor in the case.
The key question going to the Supreme Court judges, he said, is whether "the provinces should be allowed to tell the Indians exactly how they should hunt."
For Mr. Morris, who is in Ottawa today with Mr. Olsen to attend the Supreme Court hearing, the issue is even more fundamental.
"I'm hoping that our rights, which are entrenched in the treaty, are protected," he said. "The [night-hunting] method should be a part of that right."
The arguments in this case are steeped in Canadian history.
The treaty came into force less than a decade after the Hudson's Bay Company built its first fort in Victoria, and three years after the British Crown granted Vancouver Island to the company.
James Douglas, then governor of the colony of Vancouver Island, signed more than a dozen treaties allowing natives to continue their traditional hunting on unoccupied land. That ensured that the natives, who were in the majority in the region, could stay self-sufficient.
The provisions of the treaty still apply to descendants of those who signed it, including Mr. Olsen and Mr. Morris.
But in the provincial courts, the two hunters were found guilty of breaching the Wildlife Act and their convictions were upheld on appeal.
Most judges in those courts agreed that it is unsafe to hunt at night, and that banning that practice doesn't erode the fundamental rights guaranteed to natives in the treaty.
The one dissent was from Mr. Justice John Lambert of the B.C. Court of Appeal. He said the provincial Wildlife Act should not apply to the Tsartlip people when they are exercising their treaty rights to hunt under their own laws and traditions.
In their written submissions to the Supreme Court, the lawyers for Mr. Olsen and Mr. Morris argue that the Tsartlip people have been hunting at night since pre-treaty days, when they used torches to attract animals.
They have also been hunting safely as part of their culture for generations, the lawyers argue.
It would "add to the already long trail of broken promises" if the court finds "that night hunting, to feed their families, maintain their ceremonial obligations and sustain their communities, is now forever foreclosed to the Tsartlip," the submission argues.
Mr. Morris said the safety issue is "just a ploy to try and disregard the protection of our rights. . . . In our families, we're taught safety right from an early age."
The B.C. government says in its submissions that prohibiting night hunting does not interfere with overall treaty rights. If the court decides otherwise, "it follows that [Mr. Morris and Mr. Olsen] are entirely immune from provincial safety regulations in relation to safe hunting practices," the filing says.
A provincial law can infringe on treaty rights as long as it is justified, and as long as it doesn't significantly impair those rights, the B.C. government lawyers say. Since Mr. Morris and Mr. Olsen can still hunt in the daytime, there has been only a "modest" effect on
their right to hunt, the government said.
Some of the intervenors argue for a more nuanced view.
Harley Schachter, a lawyer for the Red Rock Indian Band in Northern Ontario, says his clients believe aboriginal groups can't ignore legitimate safety concerns. However, if a "reasonable accommodation"
cannot be worked out between the natives and a provincial government through negotiations, only the federal government has the jurisdiction to step in, he said.
Several native groups across the country have intervened on the side of Mr. Morris and Mr. Olsen. Meanwhile, the governments of Alberta, Saskatchewan, New Brunswick, Ontario, Quebec and Newfoundland, and the federal government, all have filed submissions in support of British Columbia.
Hunting trip takes men to top court
Case steeped in history pits native rights against B.C.'s provincial safety regulations
By RICHARD BLACKWELL
Friday, October 14, 2005
Globe and Mail
Late in the evening of Nov. 28, 1996, Ivan Morris and Carl Olsen, two members of the Tsartlip First Nation on Vancouver Island, set out on a hunting trip near the town of Youbou, along with Mr. Morris's two young
sons.
They were driving a truck along a deserted road, shining a flashlight into the woods, when they saw what they thought was a deer. Mr. Olsen took three shots from the passenger seat, then passed the gun to Mr. Morris, who stepped outside and took two more.
What they were shooting at was a decoy -- a mechanical deer with reflective eyes -- set up by provincial conservation officials. The officers interrupted the hunt, and a few days later Mr. Morris and Mr.
Olsen were charged with, among other things, breaching British Columbia's Wildlife Act by hunting during prohibited hours with the use of a light.
That incident has set off a series of legal challenges over the past nine years. B.C. Supreme Court and the province's Court of Appeal upheld the convictions of the two men. The case will culminate today at a hearing in front of the Supreme Court of Canada.
The specific question before the court is whether the provincial Wildlife Act, which prohibits hunting at night, should apply to native people who are hunting under the terms of the North Saanich Treaty of 1852.
The broader issue in this case -- and the reason it has gone as far as Canada's top court -- is whether provincial laws can supersede a treaty to protect the public good.
Historically, only the federal government had the power to determine the specifics of treaty rights, said Robert Janes, the lawyer for the Te'mexw Treaty Association on Vancouver Island, an intervenor in the case.
The key question going to the Supreme Court judges, he said, is whether "the provinces should be allowed to tell the Indians exactly how they should hunt."
For Mr. Morris, who is in Ottawa today with Mr. Olsen to attend the Supreme Court hearing, the issue is even more fundamental.
"I'm hoping that our rights, which are entrenched in the treaty, are protected," he said. "The [night-hunting] method should be a part of that right."
The arguments in this case are steeped in Canadian history.
The treaty came into force less than a decade after the Hudson's Bay Company built its first fort in Victoria, and three years after the British Crown granted Vancouver Island to the company.
James Douglas, then governor of the colony of Vancouver Island, signed more than a dozen treaties allowing natives to continue their traditional hunting on unoccupied land. That ensured that the natives, who were in the majority in the region, could stay self-sufficient.
The provisions of the treaty still apply to descendants of those who signed it, including Mr. Olsen and Mr. Morris.
But in the provincial courts, the two hunters were found guilty of breaching the Wildlife Act and their convictions were upheld on appeal.
Most judges in those courts agreed that it is unsafe to hunt at night, and that banning that practice doesn't erode the fundamental rights guaranteed to natives in the treaty.
The one dissent was from Mr. Justice John Lambert of the B.C. Court of Appeal. He said the provincial Wildlife Act should not apply to the Tsartlip people when they are exercising their treaty rights to hunt under their own laws and traditions.
In their written submissions to the Supreme Court, the lawyers for Mr. Olsen and Mr. Morris argue that the Tsartlip people have been hunting at night since pre-treaty days, when they used torches to attract animals.
They have also been hunting safely as part of their culture for generations, the lawyers argue.
It would "add to the already long trail of broken promises" if the court finds "that night hunting, to feed their families, maintain their ceremonial obligations and sustain their communities, is now forever foreclosed to the Tsartlip," the submission argues.
Mr. Morris said the safety issue is "just a ploy to try and disregard the protection of our rights. . . . In our families, we're taught safety right from an early age."
The B.C. government says in its submissions that prohibiting night hunting does not interfere with overall treaty rights. If the court decides otherwise, "it follows that [Mr. Morris and Mr. Olsen] are entirely immune from provincial safety regulations in relation to safe hunting practices," the filing says.
A provincial law can infringe on treaty rights as long as it is justified, and as long as it doesn't significantly impair those rights, the B.C. government lawyers say. Since Mr. Morris and Mr. Olsen can still hunt in the daytime, there has been only a "modest" effect on
their right to hunt, the government said.
Some of the intervenors argue for a more nuanced view.
Harley Schachter, a lawyer for the Red Rock Indian Band in Northern Ontario, says his clients believe aboriginal groups can't ignore legitimate safety concerns. However, if a "reasonable accommodation"
cannot be worked out between the natives and a provincial government through negotiations, only the federal government has the jurisdiction to step in, he said.
Several native groups across the country have intervened on the side of Mr. Morris and Mr. Olsen. Meanwhile, the governments of Alberta, Saskatchewan, New Brunswick, Ontario, Quebec and Newfoundland, and the federal government, all have filed submissions in support of British Columbia.
