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T-Space at The University of Toronto Libraries >
Indigenous Law Journal >
Fall 2008, Volume 7, No. 1 >

Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/17373

Title: R. v. Morris: Shot in the Dark and Its Repercussions
Authors: Wilkins, Kerry
Issue Date: 1-Oct-2008
Publisher: Indigenous Law Journal
Abstract: The Supreme Court's decision in R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59, which upheld and enforced the treaty right of Tsartlip hunters to hunt safely at night with lights, is important for the practical consequences of its somewhat surprising doctrinal pronouncements. By rejecting the assumption that hunting at night is inherently dangerous, it converted what many thought would be an all or nothing issue into a matter for case-by-case attention. From now on, the Crown cannot succeed without proving, on the facts of each case, any particular means or occasion of Aboriginal hunting is, in that instance, disqualified for reasons of safety from the constitutional protection afforded to treaty rights. On the other hand, by declaring that provinces ordinarily have no power to infringe Indians' treaty rights, on grounds that should apply with equal force to Aboriginal rights, the Supreme Court turned what many thought would be a matter for determination case by case – the relationship between such rights and provincial authority – for all intents and purposes into an all or nothing issue. In doing so, the Court departed from its earlier unspoken practice of keeping its doctrinal options open as long as possible, and it made the game of treaty (and quite possibly Aboriginal) rights assertion and litigation much riskier for all sides.
URI: http://hdl.handle.net/1807/17373
ISSN: 1703-4566
Rights: Indigenous Law Journal
Appears in Collections:Fall 2008, Volume 7, No. 1

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