The Supreme Court of Canada’s Decision in R. v. Morris – Limitations on Provincial Regulation of Treaty Rights
January 10, 2007
On December 21, 2006, the Supreme Court of Canada rendered its judgment in R. v. Morris,1 a case involving the interpretation of a treaty right to hunt and the question of whether holders of that right are subject to a provincial law prohibiting night hunting. A majority of the court concluded that they are not.
In 1996, Ivan Morris and Carl Olsen, members of the Tsartlip Indian Band, saw what they believed was a deer while driving at night on Vancouver Island. Morris, who was driving, stopped the vehicle, while Olsen shot at the deer several times with his rifle. Olsen then passed the rifle to Morris, who also took two shots. The "deer" at which Morris and Olsen shot was a decoy set up by wildlife conservation officers. They were charged with a number of offences under the British Columbia Wildlife Act,2 including hunting at night and dangerous hunting.
At trial, Morris and Olsen asserted that they had been exercising the right to hunt conferred upon them by the North Saanich Treaty of 1852 (more commonly known as the Douglas Treaty) and that the Wildlife Act, therefore, did not constitutionally apply to them.
(1) Provincial Court of British Columbia
Higinbotham P.C.J. accepted that the Tsartlip had practiced night hunting since prior to the signing of the Douglas Treaty.3 He also found that night hunting was a practice without cultural significance to the Tsartlip, adopted for reasons of convenience.4 On that basis, he concluded that the Douglas Treaty did not confer a right to hunt at night. He convicted Morris and Olsen of hunting at night but acquitted them of dangerous hunting.
(2) Supreme Court of British Columbia
Morris and Olsen appealed their convictions to the Supreme Court of British Columbia. Singh J. found that the Douglas Treaty included the right to hunt at night, on the basis that a treaty right to hunt includes the right to employ the methods or means preferred by the right-holder,5 subject to the right being "exercised reasonably."6 In Singh J.’s view, the Wildlife Act prohibition on night hunting merely gave effect to the requirement that the right to hunt be exercised reasonably.7 He affirmed the night hunting convictions.
(3) Court of Appeal for British Columbia
A further appeal by Morris and Olsen to the British Columbia Court of Appeal resulted in three separate sets of reasons for judgment.8
Thackray J.A. effectively considered it irrelevant whether the Douglas Treaty provided for the right to hunt at night. e reasoned that only matters resting at the core of federal jurisdiction under s. 91(24) of the Constitution Act, 1867 ("s. 91(24)") over "Indians, and Lands reserved for the Indians" – i.e., "Indianness" – are constitutionally immune from provincial legislation, and that not all treaty rights lie at core of Indianness. He considered the right to hunt at night, if it was a treaty right at all, such a right. Thackray J.A. noted that the Tsartlip developed the practice of night hunting as a matter of convenience and in order to avoid a clash with working hours. While night hunting might have been a right protected by the Douglas Treaty, it could not be a matter at the core of Indianness.9
Huddart J.A. considered all treaty rights to rest at the core of Indianness. Provincial legislation affecting such rights could therefore never, of its own force, infringe such rights. Provincial legislation could also not be incorporated by s. 88 of the federal Indian Act, ("s. 88")10 which makes provincial legislation applicable to Indians, but always "[s]ubject to the terms of any treaty."11
Huddart J.A. did not regard the prohibition on night hunting as infringing any treaty right. She emphasized that night hunting was a practice adopted by the Tsartlip for reasons of convenience and stressed the trial judge’s finding that hunting at night is inherently dangerous. She concluded that the prohibition on night hunting did not infringe the right to hunt set out in the Douglas Treaty. Rather, she said, it adapted the right "to contemporary realities," and applied to Morris and Olsen in the same manner as it applied to all persons hunting in British Columbia.12
Lambert J.A. dissented. He would have set aside the convictions on the following basis:
[T]he Wildlife Act would infringe on the core of Indianness of the Tsartlip people whose hunting for food and ceremonial purposes lies at the root of their culture. So the Wildlife Act does not apply to the Tsartlip people unless made to apply by s. 88 of the Indian Act. But s. 88 is "Subject to the terms of any treaty." Section 88 cannot constitutionally invigorate any law that impinges on or affects the exercise of the treaty right. The Tsartlip people have a treaty right to hunt in accordance with their own laws, customs, traditions and practices, which govern hunting at night … and the safety practices which regulate that manner of hunting. So the Wildlife Act does not apply to the Tsartlip people when exercising their treaty rights to hunt over unoccupied land.13
The Supreme Court of Canada split 4-3 in its decision to allow Morris and Olsen’s appeal and to set aside their night hunting convictions.14
Deschamps and Abella JJ. wrote for the majority, with Binnie and Charron JJ. concurring. They found that that Douglas Treaty included the right to hunt at night and that the Wildlife Act’s absolute prohibition on night hunting infringed that right. They concluded that the Wildlife Act prohibition did not apply of its own force and was not incorporated by s. 88.
McLachlin C.J. and Fish J. wrote a joint dissent, in which Bastarache J. concurred. They held that the Douglas Treaty right to hunt was subject to an internal limitation that excluded dangerous hunting and that hunting at night with a firearm is dangerous. Accordingly, the prohibition on night hunting did not infringe the right to hunt and applied of its own force.
(1) The Majority Reasons
Deschamps and Abella JJ. stated that a two-stage analysis was required to resolve the case. At the first stage, they would interpret the Douglas Treaty to determine the scope of the claimed treaty right. At the second stage, they would consider whether, in light of the scope of the treaty right, the Wildlife Act prohibition on night hunting applied to Morris and Olsen.15
(a) Treaty Interpretation
In determining the scope of the right to hunt conferred by the Douglas Treaty, Deschamps and Abella JJ. began by emphasizing the need to place promises in the treaty "in their historical, political, and cultural contexts to clarify the common intentions of the parties and the interests they intended to reconcile at the time."16 With respect to the historical context of the Douglas Treaty, they observed that "it was in the interest of all parties to preserve traditional hunting and fishing practices."17 With respect to the political context, they noted that Governor Douglas had represented at the time of the Douglas Treaty’s inception that it would secure for the Tsartlip and other bands the right to continue their pre-treaty hunting practices.18
Deschamps and Abella JJ. then referred to the trial judge’s finding that night hunting was one of the methods of hunting employed by the Tsartlip from time immemorial.19 This finding was, for them, enough to bring night hunting within the scope of the Douglas Treaty right to hunt "as formerly."20 They further stated that "the use of guns, spotlights, and motor vehicles reflects the current state of the evolution of the Tsartlip’s historic hunting practices."21
Deschamps and Abella JJ. conceded that "it could not have been within the common intention of the parties that the Tsartlip would be granted a right to hunt dangerously, since no treaty confers on its beneficiaries a right to put human lives in danger."22 However, they added, not all night hunting is dangerous:
Much of the north of the province is uninhabited except by aboriginal people, and there are areas where even they are seen only occasionally. To conclude that night hunting with illumination is dangerous everywhere in the province does not accord with reality and is not, with respect, a sound basis for limiting the treaty right.23
(b) Regulation of Treaty Rights by Provincial Legislation
Deschamps and Abella JJ. observed that Parliament has, under s. 91(24), exclusive authority to make laws in relation to "Indians, and Lands reserved for the Indians." Where provincial legislation impairs an integral part of federal jurisdiction under s. 91(24) – i.e., affects Indianness – it will be inapplicable to the extent of the impairment. Treaty rights, held Deschamps and Abella JJ., are one such part.24
Deschamps and Abella JJ. stated that s. 88 "reflects Parliament’s intention to avoid the effects of the immunity imposed by s. 91(24) by incorporating certain provincial laws of general application into federal law."25 However, s. 88 does not incorporate provincial laws where the effect would be to infringe treaty rights.26
In determining whether provincial legislation infringes a treaty right such that s. 91(24) renders it inapplicable, and s. 88 will not incorporate it, Deschamps and Abella JJ. said that the essential question is whether application of the provincial legislation would result in a "meaningful diminution" of the treaty right (as opposed to "insignificant interference" with it).27 They noted two classes of cases in which the Supreme Court had held that regulation of treaty rights by provincial legislation did not involve "meaningful diminution" of those rights:
(a) cases involving commercial treaty rights and provincial legislation aimed at conservation or other compelling public objectives (e.g., R. v. Marshall,  3 S.C.R. 533);28 and
(b) cases involving non-commercial treaty rights and provincial legislation that places "a modest burden" on a person exercising the rights, or that interferes "in an insignificant way" with the exercise of those rights (e.g., R. v. Côté,  3 S.C.R. 139).29
They rejected the notion that provincial legislation that infringes a treaty right might nonetheless be incorporated under s. 88 where justified pursuant to the analytical framework set out in Sparrow30 and Badger:31
The purpose of the Sparrow/Badger analysis is to determine whether an infringement by a government acting within its constitutionally mandated powers can be justified. The justification analysis does not alter the division of powers, which is dealt with in s. 88.32
Deschamps and Abella JJ. noted that the relevant Wildlife Act provisions were provincial legislation validly enacted under s. 92(13) of the Constitution Act, 1867.33 They considered that the Wildlife Act’s "categorical ban" on night hunting constituted an infringement of Tsartlip’s treaty right to hunt. It did not apply to Morris and Olsen of its own force, given the constitutional inapplicability of provincial laws affecting matters of Indianness, and could not be incorporated as federal law under s. 88 given its infringement of the treaty right.34
(2) The Dissent
McLachlin C.J. and Fish J. generally agreed with the majority’s views regarding the regulation of treaty rights by provincial legislation. They accepted that provincial legislation is constitutionally inapplicable where it affects the core of federal legislative jurisdiction under s. 91(24) – i.e., Indianness.35 They also accepted that treaty and aboriginal rights fall within that core, such that "provincial laws of general application do not apply [of their own force] to the hunting activities of Indians that are protected by a treaty."36 They also agreed that s. 88 would make provincial laws applicable to matters relating to Indianness through incorporation, provided that they such laws did not infringe a treaty right.37
Where McLachlin C.J. and Fish J. parted ways with the majority was on the question of the interpretation of the Douglas Treaty. They observed that when the Douglas Treaty was signed, hunting at night was not particularly dangerous, but that the parties to the treaty would have understood that the right to hunt did not include a right to hunt in an unsafe manner.38 Today, "the dangers of night hunting have been amplified with the development of modern weaponry." While a court interpreting treaty rights must provide for their modern exercise, the evolution of treaty rights does not occur in a "social, environmental or technological vacuum." Where, as in the case of night hunting with firearms, a traditional activity "carried on in the modern economy by modern means is inherently dangerous, that dangerous activity will not be a logical evolution of the treaty right."39
Having defined the treaty right to hunt as "subject to the internal limit that it cannot be exercised in a manner that is dangerous to the safety of the hunter or others,"40 McLachlin C.J. and Fish J. examined the Wildlife Act prohibition on night hunting. They characterized it not as infringing the treaty right, but as "a reasonable exercise of the Province’s regulatory power in defining the internal limit" on that right in light of the "real danger" associated with hunting with a firearm at night.41 The prohibition applied of its own force and without any need for recourse to s. 88.
Both the majority and the dissent in the Supreme Court of Canada confirm the following with respect to provincial regulation of treaty rights:
1. Treaty rights lie at the core of federal jurisdiction over "Indians, and Lands reserved for the Indians" under s. 91(24) – i.e., matters of Indianness.
2. Provincial legislation that infringes treaty rights strikes at the core of Indianness, and accordingly does not constitutionally apply in respect of those rights of its own force.
3. While s. 88 incorporates provincial legislation of general application as federal law, it does so "subject to the terms of any treaty", and accordingly has no role in respect of provincial legislation that infringes treaty rights.
4. Provincial legislation can apply to and regulate treaty rights so long as it does not infringe those rights – i.e., involves only "insignificant interference" with them.
While there may have been some doubt in light of remarks made by the Supreme Court of Canada in earlier cases,42 there now appears to be no room for a Sparrow/Badger analysis to justify the infringement of treaty rights by provincial legislation. The key question for future cases will be whether a particular provision infringes treaty rights, in the sense that it involves "meaningful diminution" of them, or whether it instead only interferes insignificantly with such rights.
The primary disagreement between the majority and the dissent is obviously with respect to the question of whether hunting at night with a firearm is dangerous. The majority’s view that there must be some instances in which night hunting is safe runs contrary to the trial judge’s finding that the practice is "inherently dangerous"43 and to cases from across Canada, cited in the dissent, suggesting the same.
Despite their disagreement about the dangerousness of night hunting, the majority and the dissent concur that no one has a treaty right to do dangerous things. As treaty rights evolve in light of changes in technology, the economy and the environment, the evolution may not be a one-way street. Where such changes make it dangerous to do traditional things in modern ways – or, perhaps, to do traditional things in traditional ways – the rights in question may remain static, or even narrow in scope, rather than grow.
As for when the modern exercise of a treaty right will be considered dangerous enough to restrict its evolution, or limit its traditional scope, both the majority and the dissent provide some guidance. Clearly the endangerment of human life is enough. Deschamps and Abella JJ. say that no treaty right allows "human lives [to be put] in danger."44 Similarly, McLachlin C.J. and Fish J. refer to "an inherent and especially elevated risk to the lives and safety of others."45 However, the endangerment of property may also be enough, at least for the majority, given Deschamps and Abella JJ.’s assertion that the Tsartlip "do not have a right to put lives or property at risk."46
One matter highlighted by the Supreme Court of Canada’s decision is that provincial regulation of treaty rights must be done in a very thoughtful manner. Keep in mind that the Wildlife Act prohibits both dangerous hunting and night hunting, but draws no express link between them. Moreover, Morris and Olsen were convicted of night hunting but acquitted of dangerous hunting, and the Crown did not appeal their acquittals. Despite this, the Crown came to argue that the Wildlife Act prohibition on night hunting was applicable to Morris and Olsen because all night hunting is dangerous. The Crown might have had more success in its argument if the connection between the ban on night hunting and concerns about public safety were expressed in the legislation (i.e. with the focus on safety, a matter clearly within provincial jurisdiction), rather than left for the courts to discern, and if the Crown had prosecuted Morris and Olsen in a manner consistent with its stated position that all night hunting is dangerous hunting.
This decision underscores the need for thoughtful drafting and regulation by the Crown, federal and provincial, in all areas where the broader public interest may conflict with aboriginal or treaty rights.
- 2006 SCC 59.
- S.B.C. 1982, c. 57.
-  B.C.J. No. 3199 (QL) (Prov. Ct.), at para. 18.
- Ibid., at paras. 18-19.
- 2002 BCSC 780, at paras. 40-41.
- Ibid., at para. 52.
- Ibid., at para. 66.
- 2004 BCCA 121.
- Ibid., at paras. 95-116.
- R.S.C. 1985, c. I-5.
- Ibid., at paras. 200 and 219-220.
- Ibid., at paras. 212-213.
- Ibid., at para. 49.
- Supra, note 1.
- Ibid., at paras. 14-15.
- Ibid., at para. 18.
- Ibid., at para. 20.
- Ibid., at paras. 22-25.
- Ibid., at para. 26.
- Ibid., at para. 29.
- Ibid., at para. 32.
- Ibid., at para. 35.
- Ibid., at para. 40.
- Ibid., at paras. 41-43.
- Ibid., at para. 44.
- Ibid., at para. 45.
- Ibid., at para. 53.
- Ibid., at para. 46.
- Ibid., at paras. 47-50.
- R. v. Sparrow,  1 S.C.R. 1075.
- R. v. Badger,  1 S.C.R. 771.
- Supra, note 1, at para. 55.
- Ibid., at para. 42.
- Ibid., at para. 60.
- Ibid., at para. 90.
- Ibid., at para. 91.
- Ibid., at paras. 95-97. Though McLachlin C.J. and Fish J. did not discuss in the same depth as Deschamps and Abella JJ. the question of what constitutes infringement of a treaty right, they agreed with Deschamps and Abella JJ. that infringement requires more than "an insignificant burden on a treaty right": paras. 98-99.
- Ibid., at para. 108.
- Ibid., at paras. 110-17.
- Ibid., at para. 122.
- Ibid., at para. 129.
- See R. v. Côté,  3 S.C.R. 139, at para. 87 and R. v. Sundown,  1 S.C.R. 393, at para. 48.
- Supra, note 3, at para. 27.
- Supra, note 1, at para. 35.
- Ibid., at para. 109.
- Ibid., at para. 38 (emphasis added).