Friday, December 22, 2006

Night Hunter

Treaties are made and broken in the rest of the world as circumstances change and the parties thereto find more advantage in violating them than honouring them; sometimes they just lapse into desuetude because the parties no longer exist.

But almost alone in all the world, treaties with the Indians remain somehow immune to the usual fates of treaties: somehow they must continue to be honoured, to the letter, without room for renegotiation or even tacit disregard, no matter how irrelevant or impractical they have become.

Most Indians don't derive their sustenance from the land anymore, but the screams of cultural genocide go up whenever anyone suggests modifying or extinguishing unlimited hunting and fishing rights.

Now, in the year 2006, the Supreme Court has recognized the right of some of them to hunt at night:

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 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.

As long as this continued insistence on treaty rights continues, Indians will be locked in an ultimately futile struggle to preserve a way of life that elsewhere has passed into history.

Source: National Post

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