68 Q.B.A. A.D. 2001 No. 16 J.C.B. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MERVIN MAURICE AND WALTER GARDINER and HER MAJESTY THE QUEEN RESPONDENT Clem Chartier for the appellants P. Mitch McAdam for the respondent JUDGMENT February 25, 2002 KRUEGER J. [1] This is an appeal by Mervin Maurice and Walter Gardiner from their summary conviction on October 5, 2001, for unlawfully using a searchlight for the purpose of hunting wildlife, contrary to s. 11.1(3) of The Saskatchewan Regulations passed pursuant to The Wildlife Act, 1998. The stated grounds of appeal are: 1. The conviction is against the law, the evidence and the weight of the evidence; 2. The learned trial judge erred in law in holding that the appellants as “Indians” within the meaning of the Natural Resources Transfer Agreement, 1930, which forms part of the Constitution of Canada by virtue of the Constitution Act, 1930 did not have an Aboriginal right to hunt with searchlight. 3.That the learned trial judge erred in law in failing to find that s. 11.1(3) of The Saskatchewan Regulations, to the extent that it affected the appellants’ “Aboriginal rights” and/or “Indianness”, must be read down in order to preserve its constitutionality under the doctrines of division of powers and/or interjurisdictional immunity. [2] The facts are not in dispute. At about two o’clock in the morning of October 7, 1999, while returning home on public dirt road in Northwest Saskatchewan from an unsuccessful moose hunt, the appellants spotted and then shot, aided by illumination from their vehicle headlights, white-tail deer on unoccupied Crown land. After lengthy trial at Meadow Lake the appellants were convicted and each fined $500.00. [3] Both of the appellants are of Metis heritage, being direct descendants of Metis people who took scrip in 1906 at Ile-a-la-Crosse and who, while living in the community of Sapwagamik, engaged in the traditional Metis way of life. Prior to being charged with the hunting offence, both appellants moved to Meadow Lake and now only embark upon traditional Metis way of life during the summer months or other times when their children are not in school. The trial judge found as fact that the appellants are Metis. The respondent acknowledges that if the appellants are Metis, they enjoy an aboriginal right to hunt for food as protected by s. 35(1) of the Constitution Act, 1982. The issue on this appeal is whether the appellants, as Metis, are subject to s. 11.1(3) of The Saskatchewan Regulations made under The Wildlife Act. [4] The relevant portions of The Wildlife Regulations, 1981, R.R.S., c. W-13.1, Reg. 11.1, as amended, provide as follows: 11.1 (1) Nothing in this section is to be construed as applying to hunting on Reserve. (2) For the purpose of ensuring the safety of hunters and the public, searchlight shall not be used for the purposes of hunting wildlife. (3) No person shall fail to comply with subsection (2). (4) Notwithstanding subsections (2) and (3), person may use searchlight for the purposes of normal trapping operations. (5) No person shall, during the period from one-half hour after sunset to one-half hour before sunrise, discharge, for the purposes of hunting, firearm from any: (a) provincial highway or highway; (b) road, primary grid road or grid road; (c) road allowance, right of way or ditch. (6) Subsection 75(3), clause 77(1)(a) and subsection 80(2) of the Act apply to contravention of this section. S. (jj.2) defines “searchlight” to mean spotlight, flashlight, jacklight, night light, headlight or any other light that casts beam of light, and includes night vision scopes and goggles. Section 12 of the Natural Resources Transfer Agreement, 1930 reads: 12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have right of access. STANDARD OF REVIEW [5] It has long been established that findings of fact are not to be reversed on appeal unless it can be shown that the trial judge made palpable and overriding error that affected his/her assessment of the facts. See. Lensen v. Lensen, (1987) 1987 CanLII (SCC), S.C.R. 672; R. v. Andres (1982), 1979 CanLII 2238 (SK CA), W.W.R. 249 (Sask. C.A.). No error in the assessment of the facts has been alleged by the appellants and none is apparent from review of the evidence. [6] Errors in law may result from an incorrect application of the law to the facts as found. The appellants maintain that the trial judge erred in law when he interpreted s. 12 of the Natural Resources Transfer Agreement, 1930 [hereinafter called NRTA] so as to deprive them of their aboriginal right to hunt at night with searchlight. They further argue that it was an error in law for the trial judge to apply the Sparrow test of justification for s. 11.1(3) of the Regulations rather than the doctrine of interjurisdictional immunity as protected by s. 91(24) of the Constitution. The respondent takes the position that night hunting with an artificial light never was part of any aboriginal hunting right, and even if s. 11.1(3) constitutes prima facie infringement within the meaning of the Sparrow test, it is justified because of the strong safety purpose. [7] Like the trial judge, do not intend to comment on the enforcement guidelines with respect to Metis hunting and fishing rights that have been adopted by the Department of Environment and Resource Management. It is not necessary to do so in order to dispose of this appeal. Nor do intend to comment on whether the word “Indian” as contained in s. 12 of the NRTA includes “Metis.” That can be assumed for the purposes of this appeal. It will not affect the final result. [8] The trial judge made three distinct and alternate findings: (1) Based on the evidence (in particular that of Richard Wyatt) night hunting with an artificial light is so inherently dangerous as not to attract protection as an aboriginal right. (2) Based on the Sparrow test for prima facie infringement and justification, s. 11.1(3) of the Regulations withstands both prima facie infringement and justifiability scrutiny. (3) Based on the authorities, s. 11.1(3) of the Regulations does not touch the appellants’ core as Indians and, therefore, does not give rise to interjurisdictional immunity. [9] It is the position of the appellants that as Metis they enjoy hunting rights within the meaning of s. 12 of the NRTA. Their argument is that they are exempt from any hunting prohibition when hunting on unoccupied Crown land. In support of that contention, counsel for the appellants relied on R. v. Prince and Myron, 1963 CanLII 91 (SCC), [1964] S.C.R. 81; R. v. Tobacco, [1980] C.N.L.R. 81 (Sask. C.A.) and R. v. Mooswa, [1980] C.N.L.R. 112 (Sask. C.A.) Those cases deal with hunting rights separate and apart from safety considerations and were all decided prior to R. v. Sparrow, (1990) 1990 CanLII 104 (SCC), S.C.R. 1075. [10] Counsel for the respondent is of the view that it does not matter whether the appellants are Indians within the meaning of s. 12 of the NRTA or whether they possess aboriginal hunting rights independent of that agreement. According to the respondent, the appellants, like everyone else, are subject to the Saskatchewan regulation that prohibits night hunting with artificial lights except when hunting on Reserve. The regulation is constitutionally binding, it is suggested, because its primary objective is safety. In support of that argument the Court was referred to R. v. Myran and Meeches, 1975 CanLII 157 (SCC), [1976] S.C.R. 137. The respondent also relies on the decision of the Supreme Court of Canada in Sparrow, supra, and the cases that followed, including R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] S.C.R. 723; R. v. Badger, 1996 CanLII 236 (SCC), [1996] S.C.R. 771; and R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] S.C.R. 507. A. ABORIGINAL HUNTING RIGHTS [11] The trial judge reviewed the relevant reported authorities relating to hunting rights. He found them to be divided into two categories; those directed toward safety issues and those dealing with the method of hunting. He concluded at para. 49 of his judgment: [49] Therefore if the Accused are “Indians” under the NRTA, and their rights fall to be considered in like fashion to those “Indians” who took treaty in 1906, the Accused would still have to comply with the Regulation, because they were not hunting on Reserve and because the cases cited above have held that no one is allowed to engage in dangerous hunting practices, even people with NRTA rights who hunt on unoccupied Crown land to which they have right of access. The trial judge found that aboriginal hunting rights must be exercised subject to any legislation that expresses legitimate safety concerns. [12] The Nova Scotia Court of Appeal in R. v. Bernard, [2000] C.N.L.R. 97 (N.S. Prov. Ct.); upheld [2002] N.S.C.A. 5, was invited to find that there are inherent limitations requiring aboriginals to hunt safely. The panel opted instead to consider safety as factor in determining prima facie infringement and, if necessary, justification pursuant to the Sparrow test. In my view, that is better approach. [13] The question is not whether the Aboriginal/Treaty right is to hunt safely. The question is not whether there is an Aboriginal/Treaty right to hunt at night with an artificial light. Separately, both of those questions have been decided in the affirmative. The issue in this case is whether the limiting legislation is a prima facie infringement on the appellants’ right to hunt for food and, if so, whether it is justifiable. Since Sparrow it has become unnecessary and perhaps inappropriate to attempt to define aboriginal hunting rights. The focus has shifted to the limiting legislation in both Aboriginal and Treaty hunting rights cases. In deciding whether s. 11.1(3) is valid legislation, it is necessary to apply the test established by Sparrow and expanded in the subsequent authorities. The trial judge did go on (pages 27 to 32) to consider infringement and justification pursuant to Sparrow. That, in my opinion, is where the safety purpose of the legislation ought to be considered. B. INFRINGEMENT [14] In Sparrow the Supreme Court of Canada clearly indicated that constitutionally protected hunting rights of aboriginal peoples (Aboriginal and Treaty) can be subject to federal and provincial legislation if the legislation does not constitute prima facie infringement of those rights. The analysis to be performed was described by the trial judge in paras. 66 and 67 of his judgment: [66] In Sparrow, supra, the Supreme Court of Canada established four stages of analysis in deciding whether Treaty right has been unjustifiably infringed: 1. Has the claimant demonstrated that he or she was acting pursuant to an Aboriginal right? 2. Has the right been extinguished prior to the enactment of s. 35(1) of The Constitution Act, 1982? 3. Has the right been infringed? and 4. Has the infringement been justified? [67] With respect to the first two stages of analysis, counsel have agreed that the Metis of Northwest Saskatchewan, including those of Sapwagamik, hold an existing and historical Aboriginal right to hunt moose and deer for food which had not been extinguished prior to 1982, and find it unnecessary to resolve the question as to whether the two Accused may exercise the right as members of the collective but will assume that they may. [15] When deciding whether there has been prima facie infringement of hunting rights of aboriginal peoples, Sparrow presented three questions: (a) Is the limitation unreasonable? (b) Does the regulation cause undue hardship? (c) Does the regulation deny the holders of right their preferred means of exercising that right? After careful consideration of the evidence the trial judge concluded that the practice of night hunting by means of an artificial light is highly dangerous. The prohibition, therefore, was found not only to be reasonable, but essential. The regulation presented no undue hardship and was never the preferred means of hunting by people of Sapwagamik. Further, the trial judge concluded that the legislation could not be considered a diminution of any assumed aboriginal right. That led him to the conclusion that there was no prima facie infringement of the appellants’ hunting rights in s. 11.1(3). [16] The onus of proof is upon the party challenging the legislation. Aboriginal and Treaty rights are not absolute. Reasonable regulations aimed at ensuring safety do not infringe Aboriginal or Treaty rights. See R. v. Badger, supra, at 817 to 818 and R. v. Sundown, 1999 CanLII 673 (SCC), [1999] S.C.R. 393 at para. 26. Section 11.1 is not unreasonable safety legislation. The evidence here did not show that the impugned regulation imposed an undue hardship on Metis in general or the appellants in particular. Similarly it was not proven that the people of Sapwagamik preferred as community to hunt at night with artificial lights. contrary preference emerges from both the Metis culture and their legislation contained in the Metis Wildlife and Conservation Act. As safety legislation section 13.1(3) does not infringe aboriginal rights, but it has conservation component that will be assessed later. [17] am unable to accept the appellants’ argument that because s. 11.1(1) exempts Reserves from the searchlight prohibition, safety was not the primary purpose of the regulation. According to the expert witness, Kenneth Brian Ness, Reserves were exempt out of respect for the Band Councils’ right to pass their own safety laws pursuant to the Indian Act. The trial judge’s conclusion that the questioned regulation was aimed at ensuring safety and did not infringe Aboriginal or Treaty rights to hunt for food was based on established law and the facts. Having found that there was no infringement, the trial judge went on to hold that had there been an infringement of aboriginal rights, it was justified pursuant to the test laid down in Sparrow. C. JUSTIFICATION [18] The trial judge correctly identified the test for justification of a legitimate regulation of a constitutional aboriginal peoples’ right:1. Does the legislation have avalid objective?2. Is the honour of the Crown at stake in dealing with the Aboriginal peoples?3. Has there been as little infringement as possible?4. Has the Aboriginal group been consulted? The objective was primarally safety, both from the words used in the legislation and the evidence introduced. The trust relationship between the Crown and aboriginal peoples was honoured. There was little, if any, infringement of hunting rights of Metis arising from the legislation. Consultations had taken place and some of the views of those consulted were incorporated into at least one regulation amendment. No compelling reasons were advanced why the trial judge’s conclusions were not valid. The regulation prohibiting night hunting with artificial lights, if an infringement, was justifiable. [19] On the assumption, but without finding, that Metis are Indians within the meaning of s. 12 of the NRTA, the appellants have aboriginal hunting rights protected by the Constitution. The NRTA in 1930 altered those hunting rights: (1) by eliminating commercial hunting; (2) by expanding the hunting area to include all unoccupied Crown land; and (3) by authorizing the Province to make conservation laws. (See: R. v. Badger, supra, per Cory J. at 815.) In Badger Mr. Ominayak was hunting on private land not being put to any visible use. That is the equivalent of hunting on unoccupied Crown land. Any law that constitutes prima facia infringement of the aboriginal right to hunt for food on unoccupied Crown land must be justified pursuant to the Sparrow test. See R. v. Badger, supra, at 823. But aboriginal rights are not absolute and, as already indicated, laws having a safety objective do not infringe aboriginal rights. The Province has jurisdiction to pass conservation laws. Section 11.1(3) restricts the method of hunting at night and to that extent it likely is a conservation infringement. If so, it is still permissible provincial legislation, but must meet the Sparrow justification test. That it easily does because of the strong safety factor. The appellants have failed to show any error in law by the judge in applying the justification test pursuant to Sparrow. D. DOCTRINE OF INTERJURISDICTIONAL IMMUNITY [20] If Metis people are Indians within the meaning of s. 91(24) of the Constitution Act, 1867 (conceded by the respondent), the appellants contend that the regulation in s. 11.1(3) cannot apply to them because the Province of Saskatchewan does not have jurisdiction to pass such legislation. Law making that touches Metis as Metis (Indians as Indians) is restricted to Parliament. See Peter Hogg on Constitutional Law of Canada, 3rd ed., vol. at p. 27-10. [21] The position of the respondent is that provincial hunting laws regulate aboriginal hunting rights; they do not extinguish them. Accordingly, such laws do not cross the interjurisdictional immunity boundary. Legislation prohibiting night hunting with artificial lights has been considered by the courts of several provinces. See R. v. Seward, [1999] C.L.N.R. 299 (B.C.C.A.), application for leave to appeal to Supreme Court of Canada denied (2000); R. v. Augustine, [2001] N.B.J. No. 9, application for leave to appeal to the Court of Appeal denied, (2001); R. v. Bernard, supra,; R. v. Paul, 1999 CanLII 11034 (QC CS), [2000] C.N.L.R. 262 (Que. S.C.). All courts found the practice of night hunting with lights to be dangerous and upheld the limiting provincial legislation. In Seward and Bernard, the Sparrow test of infringement and justification was the only test applied. No infringement was found in either case. [22] Again the trial judge reviewed the relevant authorities when considering interjurisdictional immunity. He found that notwithstanding s. 91(24) of the Constitution Act, 1867, provincial laws of general application apply proprio vigore to Indians and Indian lands, but can never extinguish aboriginal rights. The trial judge further concluded, based on R. v. Kruger, 1977 CanLII (SCC), [1978] S.C.R. 104, that s. 11.1 of the Regulations is provincial law of general application and does not extinguish the Metis right to hunt for food; rather, it restricts the method of hunting for food. It does not, therefore, touch the core of Indians at the heart of s. 91(24) of the Constitution. The interjurisdictional immunity boundary was not crossed. [23] Lamer C.J. in Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] S.C.R. 1010, distinguishes between provincial laws that infringe aboriginal rights and those that extinguish them. At para. 181 he stated: Second, as mentioned earlier, s. 91(24) protects core of federal jurisdiction even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity. That core has been described as matters touching on “Indianness” or the “core of Indianness” (Dick, supra, at pp.326 and 315;’ also see Four B, supra,at p.1047 and Francis, supra, at pp.1028-29). The core of Indianness at the heart of s. 91(24) has been defined in both negative and positive terms. Negatively, it has been held to not include labour relations (Four B) and the driving of motor vehicles (Francis). The only positive formulation of Indianness was offered in Dick. Speaking for the Court, Beetz J. assumed, but did not decide, that provincial hunting law did not apply proprio vigore to the members of an Indian band to hunt and because those activities were “at the centre of what they do and what they are” (at p. 320). But in Van der Peet, described and defined the aboriginal rights that are recognized and affirmed by s. 35(1) in the similar fashion, as protecting the occupation of land and the activities which are integral to the distinctive aboriginal culture of the group claiming the right. It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24). Prior to 1982, as result, they could not be extinguished by provincial laws of general application. [24] More recently the Saskatchewan Court of Appeal in R. v. Grumbo, 1998 CanLII 12345 (SK CA), [1998] C.N.L.R. 172, dealt with the issue of interjurisdictional immunity. At page 185 Sherstobitoff J. wrote: Mr. Grumbo argues that, the Crown having stipulated that Metis are Indians within the meaning of s. 91(24) of the Constitution Act, 1867, then the provisions of The Wildlife Act cannot apply to them as it would be legislation relating to Indians qua Indians. The weight of authority clearly says that provincial legislation relating to game is provincial law of general application affecting Indians not qua Indians but as inhabitants of the province, and is applicable to them, subject of course to s. 12 of the Natural Resources Transfer Agreement: Cardinal v. The Attorney General of Alberta, 1973 CanLII 980 (SCC), [1974] S.C.R. 695 [[1973] .W.W.R.. 205, 40 D.L.R. (3d) 553, 13 C.C.C. (2d) 1]; R. v. Horseman, at p. 934 [S.C.R.; pp. 104-5 C.N.L.R.]; R. v. Kruger and Manuel, 1977 CanLII (SCC), [1978] S.C.R. 104 [[1977] W.W.R. 300, 75 D.L.R. (3d) 434, 34 C.C.C. (3d) 377, 14 N.R. 495]. The principle is not affected by the judgment of the Supreme Court of R. v. Dick, [1985] S.C.R. 309 [1985 CanLII 80 (SCC), 69 B.C.L.R. 184, 23 D.L.R. (4th) 33, [1986] W.W.R. 1, [1985] C.N.L.R. 55, 22 C.C.C. (3d) 129, 62 N.R. 1], where the court was prepared to assume, for the purpose of the judgment, that the legislation in issue affected the Indianness of the accused, because it was specifically said that the court was not deciding the issue. Mr. Grumbo cannot succeed on this ground. The fact that no aboriginal right to hunt had been established in Grumbo does not, in my view, affect the principle laid down by the court. [25] Section 11.1(3) of the Regulations prohibits night hunting with searchlight. It does not extinguish or diminish the Constitutional right to hunt for food. Further, it is law of general application. It applies to every hunter except when hunting on Reserve. The trial judge concluded at para. [61] In my view, applying the authorities cited above to the facts of this case, the application of the Regulation to the Accused, assuming that they possess an Aboriginal right to hunt for food, as the parties agreed, does not extinguish that right but only curtails method of exercising it which is, in any event, universally disapproved by the holders of the right. Another consequence of the finding that night hunting with artificial lights is not tradition of the Metis of Northwest Saskatchewan is the corollary that Regulation prohibiting such hunting does not touch their core of Indianness. The question of whether the Regulation infringes the Aboriginal right of the Metis will be discussed below, but find that the Regulation is law of general application and that the doctrine of interjurisdictional immunity is not triggered by it. The Accused’ submission cannot prevail. [26] The legal authorities referred to by the trial judge support the conclusion arrived at by him that s. 11.1(3) of the Regulations does not touch the appellants’ core of “Indianness.” As stated by Cory J. in R. v. Horseman, 1990 CanLII 96 (SCC), [1990] S.C.R. 901, and again by Sherstobitoff J.A in R. v. Grumbo, supra, “...legislation relating to game is provincial law of general application affecting Indians not qua Indians but as inhabitants of the province... .” Treaty and Aboriginal rights protected by s. 35(1) of the Constitution have not been diminished by s. 11.1(3) of the Regulations. At most the right to hunt for food in this province has been restricted by the requirement that all persons exercising that right do so in safe manner. The regulation applies to the appellants as hunters, not as Metis. CONCLUSION [27] It cannot be said that the findings of fact by the trial judge are unsupported by the evidence or are unreasonable. Nor should the decision be set aside on the ground of a wrong decision on a question of law. The appellants have failed to come within the provisions of s. 686(1)(a)(i) or (ii) of the Criminal Code. The appeal is dismissed.
An appeal from a summary conviction for unlawfully using a searchlight for the purpose of hunting. The trial judge made three distinct and alternate findings: based on the evidence presented, night hunting with an artificial light is so inherently dangerous as not to attract protection as an aboriginal right; based on the Sparrow test for prima facie infringement and justification, s.11.1(3) of the Regulations withstands both prima facie infringement and justifiability scrutiny; based on the authorities, s.11.1(3) of the Regulations does not touch the appellant's core as Indians and, therefore, does not give rise to interjurisdictional immunity. The trial judge found that aboriginal hunting rights must be exercised subject to any legislation that expresses legitimate safety concerns. The facts were not in dispute. The appellants, who were of Metis heritage and engaged in the traditional Metis way of life, argued they enjoy hunting rights within the meaning of s.12 of the Natural Resources Transfer Act and are exempt from any hunting prohibition when hunting on unoccupied Crown land. The respondent acknowledged that if they are Metis, they enjoy an aboriginal right to hunt for food as protected by s.35(1) of the Constitution Act, 1982. However, they are subject to the regulation prohibiting night hunting with artificial lights (except when hunting on a Reserve) because its primary objective is safety. At issue was whether the appellants, as Metis, are subject to s.11.1(3)of the Saskatchewan Regulations passed pursuant to the Wildlife Act. HELD: The appeal was dismissed. 1)The appellants failed to come within s.686(1)(a)(i) or (ii) of the Criminal Code. 2)The findings were supported by the evidence and were reasonable. There was no wrong decision on a question of law.  3)Aboriginal and Treaty rights are not absolute. Reasonable regulations aimed at ensuring safety do not infringe these rights. Laws having a safety objective do not infringe aboriginal rights. As safety legislation, s.13.1(3) has a conservation component. The Province has jurisdiction to pass conservation laws. Legislation prohibiting night hunting with artificial lights has been considered by the courts of several provinces. All courts found the practice dangerous and upheld the limiting provincial legislation. 4)The Court preferred the approach taken in R. v. Bernard, which is to consider safety as a factor in determining prima facie infringement and if necessary, justification pursuant to the Sparrow test. The issue in this case is whether the limiting legislation is a prima facie infringement on the appellants' right to hunt for food and if so, whether it is justifiable. Since Sparrow, it has become unnecessary and perhaps inappropriate to attempt to define aboriginal hunting rights. Sparrow presented three questions when deciding whether there has been a prima facie infringement of hunting rights: is the limitation reasonable; does the regulation cause undue hardship; does it deny their preferred means of exercising that right. In Seward and Bernard, the Sparrow test of infringement and justification was the only test applied. No infringement was found in either case. 5)The trial judge concluded the practice of night hunting by means of artificial light is highly dangerous. The prohibition was found not only to be reasonable but essential. The regulation presented no undue hardship and was never the preferred means of hunting by people of Sapwagamik. The legislation could not be considered a diminution of any assumed aboriginal right and there was thus no prima facie infringement of hunting rights by s.11.1(3).  6)It was not accepted that because Reserves are exempted, safety was not the primary purpose. Reserves were exempt out of respect for Band Council's right to pass their own safety laws pursuant to the Indian Act. 7)The trial judge correctly identified the test for justification of a legitimate regulation as being whether the legislation has a valid objective; whether the honour of the Crown is at stake; has there been as little infringement as possible; has the aboriginal group been consulted. 8)Section 11.1(3) restricts the method of hunting at night and to that extent it likely is a conservation infringement. If so, it is still permissible provincial legislation. It meets the Sparrow justification test because of the strong safety component. 9)Provincial hunting laws regulate aboriginal hunting rights; they do not extinguish them. Accordingly, such laws do not cross the interjurisdictional immunity boundary. They do not touch the core of Indians at the heart of s.91(24) of the Constitution. The regulation applies to appellants as hunters, not as Metis.