There was a treaty protecting Aboriginal hunting rights to be performed “as formerly”, which definitely included hunting at night. The accused was convicted when hunting at night for “unsafe hunting practices”. A provision of the Wildlife Act bans night hunting completely.
The appellants were members of the Tsartlip Indian Band of the Saanich Nation. They were hunting at night when they shot at a decoy deer set up by provincial conservation officers to trap illegal hunters. They were arrested and charged with several offences under the Wildlife Act relating to hunting at night. At trial, as a defence to the charges under s. 27(1) (now s. 26(1)), the appellants raised their right “to hunt over the unoccupied lands . . . as formerly” under the North Saanich Treaty of 1852. They also introduced evidence that the particular night hunt for which they were charged was not dangerous.
The trial judge found that “night hunting with illumination was one of the various methods employed by the Tsartlip [people] from time immemorial”. However, he nonetheless concluded that the appellants did not have a treaty right to hunt at night because hunting at night with an illuminating device was “inherently unsafe”. The appellants were unsuccessful at appeal in the lower courts and continued their appeal to the Supreme Court.
- To what extent can provincial government interfere with treaty rights?
Appeal allowed; acquittals entered.
Deschamps and Abella, writing for the majority, state that the first step of the analysis is to determine whether the provisions of the Wildlife Act impair a treaty right. They find that the evidence clearly shows that the Tsartlip performed night hunting at the time the treaty was signed, and therefore that it is a protected treaty right. It is, of course, clear that there is no treaty right to hunt dangerously, and therefore the provision of the Wildlife Act banning dangerous hunting does not prima facie impair a treaty right. However, the scope of the provision completely bans night hunting.
As a result, it must be determined if the provincial government has the authority to regulate treaty rights, and what extent of limitation is necessary to amount to a prima facie infringement. They find that the Wildlife Act is valid provincial legislation, and that the specific provisions are of general application were not focused specifically on aboriginals. However, if the valid provincial laws impair an "integral part of the federal jurisdiction" over the aboriginals then they are inapplicable to the extent of the impairment under s. 88 of the Indian Act. While the section contains a limiting clause for "provincial laws of general application", they finds that the words "subject to the terms of any treaty" clearly imply that s. 88 cannot be used to incorporate provincial laws that conflict with a treaty into federal law.
The final question to be answered is what extent of impairment is required to constitute a prima facie impairment of a treaty right. Deschamps and Abella state that prima facie impairment requires only a "meaningful diminution", which is anything but an insignificant interference with the treaty right. It is also important to note that the Sparrow/Badger test can be used to justify such an infringement.
In the case at bar the absolute ban on night hunting is clearly more than an insignificant interference, and constitutes a prima facie impairment of the treaty right. There is no evidence relating to justification, and therefore the appeal must be allowed and an acquittal entered.
McLachlin and Fish, in the dissent, state that the treaty does not provide a right to hunt dangerously, and as the total ban on night hunting is required to ban dangerous hunting, then it does not amount to a prima facie infringement of a treaty right.
- Provincial legislation can only insignificantly interfere (less than a "meaningful diminution") with a treaty right – anything more than this is a prima facie impairment of the treaty right.
- Provincial impairments can be demonstrated using the infringement test from Sparrow/Badger.
- If a meaningful interference exists, you cannot under s. 88 use the justification analysis under Sparrow/Badger.