By arthur Weinreb
Wednesday, December 27, 2006
Last week, in a 4-3 split the Supreme Court of Canada handed down a decision that gives members of the Tsartlip Indian Band of British Columbia the right to hunt at night with the use of illuminating devices even though such practices are illegal under B.C. legislation. The case began 10 years ago when two band members, Carl Olsen and Ivan Morris were charged under B.C.'s Wildlife act with hunting at night with the use of illuminating devices.
The majority of the Court found that the Tsartlip had been granted the right to hunt at night under the North Saanich Treaty that was signed in 1852 and that such right superseded any limitations imposed by the province of British Columbia under the Wildlife act.
Three members of the Court dissented and although they agreed with the majority about the rights granted to the Tsartlip under the 1852 treaty, they interpreted the right to hunt as being the right to hunt in a safe manner.
Chief Justice McLachlin and Justice Fish wrote of the treaty, "It does not include the right to hunt in an inherently dangerous manner. Or, put differently, the right to hunt under the treaty must be exercised reasonably and hunting practices that are inherently hazardous are antithetical to the reasonable exercise of the right to hunt.” The dissenting justices went on to note the societal differences between the present and 1852 when the treaty was signed. Not only has the population increased but canoes and bows and arrows have been replaced by motor vehicles and high powered rifles.
The majority of the Court skirted over the issue of public safety by noting that there was no evidence that anyone has been killed or seriously injured while night hunting with illuminating devices had been practiced by members of the Tsartlip. The justices have come a long way since June 2001 when they applied international environmental law's "precautionary principle” to find a Hudson Quebec by-law that banned the use of pesticides valid. Under the "precautionary principle”, no proof of danger must exist; a practice can be banned if scientific evidence might find it to be dangerous at some time in the future.
The difference between the majority and minority decisions boils down to the difference between political correctness run amok and the application of common sense. It is difficult to go against the logic of the minority that the treaty never intended to grant a right that was inherently dangerous and that while the practice of hunting at night was not dangerous in the middle of the 19th century, society has changed since then and these changes should be taken into account when interpreting these rights.
It's not only the Supreme Court of Canada that allows issues of public safety to take a back seat to aboriginal Rights. One needs only to look at what has been happening in Caledonia Ontario since early this year. The land claims made by natives to the Douglas Creek Estates trump any and all issues of the safety of the residents of the town who live nearby the disputed land. The Ontario Provincial Police carry on their duties as their political masters want them to; downplaying or ignoring any breaches of the peace or crimes that are committed by natives while attempting to blame non natives for any disturbances or incidents that are related to the occupation. Premier Dalton McGuinty can take pride in the fact that while God might not be on his side, the majority of the Supreme Court of Canada sure is.
Politicians in government such as former Public Safety Minister anne McLellan love to say that the most fundamental duty of government is the protection of its citizens. Not any more. Not in Canada.
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