Post by Woody Williams on Dec 22, 2006 11:09:55 GMT -5
B.C. natives win right to hunt at night
Supreme Court ruling: Dissenters argue that public safety put at risk
OTTAWA - A B.C. aboriginal band won the right to hunt at night in a divided Supreme Court of Canada ruling yesterday that included a rebuke from the dissenting judges that public safety should not take a backseat to treaty rights.
The majority of judges concluded that British Columbia's blanket ban on night hunting is overly broad because the practice isn't necessarily dangerous.
"The ramifications of this decision will be felt right across Canada," predicted Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs.
The decision overturned the conviction of two Vancouver Island aboriginals who belong to the Tsartlip First Nation, Ivan Morris and Carl Olsen, who were caught a decade ago in a sting operation.
They had lost their case every step of the way, but they convinced the Supreme Court majority they should be able to hunt with rifles in the dark, with the aid of a lamp, because their ancestors had engaged in the practice using torches and bows and arrows.
"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," said the majority decision, co-authored by justices Marie Deschamps and Rosalie Abella.
"It applies without exception to the whole province, including the most northern regions where hours of daylight are limited in the winter months and populated areas are few and far between."
The ruling said treaty rights must be adapted to modern times and that "hunting with a rifle and ammunition is the current form of an evolving right whose origins were hunting with a bow and arrow."
The minority judgment, penned by Chief Justice Beverley McLachlin and Justice Morris Fish, countered that courts have consistently found that night hunting "inherently involves an unacceptable and elevated risk to the public."
They argued that the 1852 treaty in question was never intended to permit a practice that is dangerous.
Also, aboriginals could still be charged with dangerous hunting under B.C.'s Wildlife Act, but it would be up to the Crown to prove that the activity in question was unsafe.
The ruling invites the province of British Columbia to develop a new law that imposes restrictions on night hunting rather than a sweeping ban.
While hunting laws fall under provincial jurisdiction, there is a general prohibition across Canada, with few exceptions, on hunting after dark.
In British Columbia, the ban extends from an hour after sunset to an hour before sunrise. A spokeswoman for the province said it was too early to comment on whether British Columbia intends to redraft its wildlife law.
The two victorious hunters, with aboriginal leaders at their side, held a news conference yesterday to laud the Supreme Court ruling.
"The decision not only upholds our treaty rights, it protects our traditional way of life," said Mr. Olsen.
The ruling is the second significant victory this month for aboriginals, who two weeks ago won the right to cut trees on Crown land for domestic use
Supreme Court ruling: Dissenters argue that public safety put at risk
OTTAWA - A B.C. aboriginal band won the right to hunt at night in a divided Supreme Court of Canada ruling yesterday that included a rebuke from the dissenting judges that public safety should not take a backseat to treaty rights.
The majority of judges concluded that British Columbia's blanket ban on night hunting is overly broad because the practice isn't necessarily dangerous.
"The ramifications of this decision will be felt right across Canada," predicted Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs.
The decision overturned the conviction of two Vancouver Island aboriginals who belong to the Tsartlip First Nation, Ivan Morris and Carl Olsen, who were caught a decade ago in a sting operation.
They had lost their case every step of the way, but they convinced the Supreme Court majority they should be able to hunt with rifles in the dark, with the aid of a lamp, because their ancestors had engaged in the practice using torches and bows and arrows.
"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," said the majority decision, co-authored by justices Marie Deschamps and Rosalie Abella.
"It applies without exception to the whole province, including the most northern regions where hours of daylight are limited in the winter months and populated areas are few and far between."
The ruling said treaty rights must be adapted to modern times and that "hunting with a rifle and ammunition is the current form of an evolving right whose origins were hunting with a bow and arrow."
The minority judgment, penned by Chief Justice Beverley McLachlin and Justice Morris Fish, countered that courts have consistently found that night hunting "inherently involves an unacceptable and elevated risk to the public."
They argued that the 1852 treaty in question was never intended to permit a practice that is dangerous.
Also, aboriginals could still be charged with dangerous hunting under B.C.'s Wildlife Act, but it would be up to the Crown to prove that the activity in question was unsafe.
The ruling invites the province of British Columbia to develop a new law that imposes restrictions on night hunting rather than a sweeping ban.
While hunting laws fall under provincial jurisdiction, there is a general prohibition across Canada, with few exceptions, on hunting after dark.
In British Columbia, the ban extends from an hour after sunset to an hour before sunrise. A spokeswoman for the province said it was too early to comment on whether British Columbia intends to redraft its wildlife law.
The two victorious hunters, with aboriginal leaders at their side, held a news conference yesterday to laud the Supreme Court ruling.
"The decision not only upholds our treaty rights, it protects our traditional way of life," said Mr. Olsen.
The ruling is the second significant victory this month for aboriginals, who two weeks ago won the right to cut trees on Crown land for domestic use
