On January 27, 2009, the Ontario Court of Appeal rendered its decision in R. v. Jacob and upheld convictions related to hunting under Treaty No. 9. Jacob concerned an appeal that upheld the appellants’ convictions by a justice of the peace for hunting at night and discharging a firearm across a road contrary to the Fish and Wildlife Conservation Act.2 The primary issue on appeal was whether the appellants, members of the Aroland First Nation and beneficiaries of Treaty No. 9, could defend their actions based on exercising a right to hunt under Treaty No. 9.
The court began its analysis of Treaty No. 9 by examining the geographic limits clause, or the so-called "lands taken up" limitation,3 which states, in part: "… saving and excepting those tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes."
The Crown had argued that the appellants were not exercising a treaty right because they were hunting on a public road that constituted "lands taken up" under the terms of Treaty No. 9. The test to determine whether lands are taken up is whether the use being made of such land is "visibly incompatible" with the exercise of the treaty right — in this case night hunting.4
The court held that the justice of the peace had applied the proper principles when concluding that the road in question was "lands taken up." The court also held that "roadways used by the public are incompatible with hunting."5
The appellants argued that the court should set aside their convictions because of the SCC’s decision in R. v. Morris,6 which held that a prohibition against night hunting in British Columbia did not apply because the appellants in that case had a treaty right to hunt at night. The court noted:
The geographic limitations in the two treaties are significantly different. The North Saanich Treaty in Morris limited the treaty right to hunt on "unoccupied lands." In Morris, the majority of the [SCC] seems to have accepted that the land upon which the appellants were hunting were "unoccupied lands" within the meaning of the treaty. There did not appear to be any issue that the treaty right to hunt at night did not apply to the area where the appellants in that case were hunting.7
The court concluded by dismissing the appeals, upholding the convictions, and determining that the lands were taken up for the purposes of Treaty No. 9 and therefore no claim of a treaty right to hunt could be made.