RAVEN - Respecting Aboriginal Values and Environmental Needs

Night hunting in Tsartlip territory

R v Morris

Year: 2006

Court: Supreme Court of Canada

Citation: 2006 SCC 59

Location: BC

TAGS: Treaty Rights; Harvesting Rights

For an infringement of a treaty right to be found, there must be a meaningful diminution of the treaty right. 

Summary:

Morris and Olsen, two members of the Tsartlip Band of the W̱SÁNEĆ Nation were charged under s.27(1)(d) and (e) of the British Columbia Wildlife Act for hunting for food at night with illumination devices. Morris and Olsen argue that the charges are in violation of their right to hunt under the North Saanich Treaty of 1852 (one of the Douglas treaties on Vancouver Island, BC). The Crown argues that, while Morris and Olsen have a right to hunt, there is prohibition of hunting at night for safety reasons. 

The majority of the Supreme Court of Canada found that the Tsartlip’s right to hunt at night with illuminating devices is protected by the North Saanich Treaty of 1852. While the prohibition of dangerous hunting in the Wildlife Act does not infringe the treaty right, the prohibition of hunting at night with an illuminating device in s. 27 of the Wildlife Act is too broad and infringes the treaty right of the Tsartlip Band of the W̱SÁNEĆ Nation to hunt at night with illumination devices. Section 27 of the Wildlife Act is too broad because it prohibits both safe and dangerous hunting.

Why this Case Matters:

R v Morris adds to the framework for analyzing infringements on treaty rights. An infringement requires a “meaningful diminution” of a treaty right. A “meaningful diminution” of a treaty right includes anything but an insignificant interference with the right (para. 53). In R v Morris, the Supreme Court of Canada also looked at the ability of provincial laws and regulations to infringe on treaty rights. 

Supreme Court Judgment:

https://www.canlii.org/en/ca/scc/doc/2006/2006scc59/2006scc59.html?autocompleteStr=r%20v%20morris&autocompletePos=4

Go Deeper:

https://www.firstpeopleslaw.com/database/files/library/Preparing_an_Aboriginal_Rights_Case____An_Overview_for_Defence_Counsel.pdf

https://tspace.library.utoronto.ca/handle/1807/17373

http://www.thecourt.ca/night-hikers-beware/

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