Aboriginal Rights/Defences - Case Summaries
The database contains 79 case summaries relating to Aboriginal Rights/Defences . The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
Judicial Review/Crown Liability
Aboriginal Rights and Defences - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement - Standing of Attorney General of Nunavut
Blaney v. British Columbia (Minister of Agriculture Food & Fisheries), 2005 BCSC 283
This was a judicial review application challenging a decision of the Minister of Agriculture Food and Fisheries to approve an amendment of a aquaculture licence allow a change from Chinook salmon to Atlantic salmon. After hearing evidence the court granted a declaration that the Minister had a continuing duty to consult and adjourned the application for judicial review generally.
Aboriginal rights and defences - Costs awarded when charges withdrawn after long delay
R v. Janvier , 2004 ABPC 160
Offences - Misc. - Aboriginal Rights and Defences- Failure of Crown at trial to prove averment in Information that fishing in non-tidal waters - No right to amend information during appeal
R v. Jimmy , 2004 BCSC 997
Offences - Search and Seizure - Aboriginal Rightrs and Defences - Constitutionally protected Narwhal fishery; Demand by fisheries offices to attend at fisheries office with illegally harvested Narwhal tusk - No credibly based suspicion sufficient to trigger statutory power of inspection - s. 7 invoked to exclude inculpatory admissions-
R v. Kooktook , 2004 NUCJ 7
Aboriginal rights and defences - Infringement - By itself, a 7.5 month closure of a river does not establish a prima facie infringement
R v. Eagle Child, 2004 ABPC 111
Offences - Misc. - Unlawfully selling of aboriginal food fish - definition of "sell"
R v. Sutherland , 2004 MBQB 104
This case involved an aboriginal fisherman who delivered five pickerel caught without a commercial fishing licence to a fish plant to the account of a different fisherman holding a commercial licence. At trial, the the court gave the accused the benefit of the doubt with respect to whether or not he was "selling" the fish because he had directed the money be paid to a person other than himself.
Upon summary conviction appeal, the court held that the trial judge had "placed undue restriction on the meaning of the words "sell" or offer to sell . . . the delivery of goods to one person with payment directed to a third party falls within that definition".
Aboriginal Rights and Defences - Metis - Failure to establish existence of identifiable metis community
R v. Daigle , 2004 NBQB 79
Aboriginal Rights and Defences - Bait Ban - No prima facie infringement if no evidence called by defence
R v. Lefthand, 2004 ABPC 38
Aboriginal Rights and Defences - Procedure re Justification Phase - Voluntary Allocation Agreement with DFO - Communal nature of Right
R v. Lindstrom , 2004 BCPC 25
Judicial Review and Crown Liability
Aboriginal Rights and Defences - Non infringement of treaty rights by British Columbia Oil and Gas Commission
Saulteau First Nation v. British Columbia (Oil and Gas Commission), 2004 BCSC 92
Aboriginal Rights and Defences - Unsuccessful application to strike - Cause of action re. failure to proclaim Indian Act and create reserves when NFLD first joined confederation
Davis v. Canada (Attorney General), 2004 NLSCTD 153
Not yet available.
Aboriginal Rights and Defences - Rejection of food fishing defence to charges under Sports Fishing Regs.
R v. Gray , B.C.J. No. 14
Not yet available.
Aboriginal Rights and Defences - Stay for unreasonable delay and failure to to comply with disclosure order of privileged documents overturned on appeal
R v. Reid ,  B.C.J. No. 954
Judicial Review/Crown Liability – Definition of “fishing” - Does not require the holder of the licence to use or exploit the fish that were killed
Aboriginal Rights and Defences – Public Interest Standing
Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd., 2003 FCA 484
This case involved an application by the Chief Percy Williams on behalf of the members of the Twicksutaineuk/Ah-kwa-mish Tribes for judicial review of a decision of the Minister of Fisheries to issue a Marine Mammal Predator licence to a fish farm for the purpose of killing of problem seals and seal lions.
As a preliminary matter, the court had to determine whether or not the tribe members had public interest standing. Upon reviewing the first of the three part test set out in Harris v. Canada  4 F.C. 37 (F.C.A.), the court ruled that the tribe members did not have public interest standing because they were not able to establish that they were likely to succeed on the merits of their application.
The Tribe essentially argued that the licence in question was not a “fishing” licence because it did not require the holder of the licence to use or exploit the fish that were killed. After reviewing the legislation in question and the relevant case law, the court rejected this argument. The court was of view that the act of fishing was complete once possession of the fish is obtained. As an example, the court referred to catch and release practices in the sports fishery where anglers catch fish with the specific intention of releasing them once they are caught.
Postscript: This decision was upheld by the Court of Appeal 2003 FCA 484
Aboriginal Rights and Defences – Treaty Rights
R v. Houle , 2003 ABPC 107
This case involved five aboriginal defendants charged with catching and retaining northern pike of a prohibited length while involved in a sport fishing derby. Amongst other things, a defence was raised based upon a right to fish pursuant to Treaty No. 6 of 1876. Upon review the evidence, the court rejected this defence because the defendants fishing activities were not “done for the specific purpose of providing food for subsistence. . .” (para. 56).
Offences – Misc. – Protest Fishery or Pilot Sales – No Racial Discrimination Aboriginal Rights and Defences - Treat Right to Fish for Lobster – Aboriginal Right – Offences – Due Diligence - Possession
R v. Francis , 2003 NSPC 20
This case involved charges against an aboriginal defendant from the Acadia First Nations for illegal fishing during a closed time for lobster near Savory Park in Digby County, Nova Scotia. At trial defences were raised based upon treaty rights, aboriginal rights and due diligence.
With respect to treaty rights, since the defendant was not able to show that the Treaty of 1752 was applicable to the Acadia First Nation, this defence was rejected (para. 14). With respect to aboriginal right, the court applied the test set out in R. v. Van Der Peet,  2 SCR 507 and several other cases. In applying that test, the court found no evidence that lobster fishing was a continuation of an existing past practice at the time of European encounter.
With respect to the due diligence defence, the defendant led evidence that he was caught in the middle of a dispute between D.F.O. and the Mi’kmaq Fish and Wildlife Commission as to who had jurisdiction to licence this fishery. He initially set his traps with a valid licence from the Mi’kmaq Fish and Wildlife Commission. Upon hearing that the Commission no longer had jurisdiction to licence the fishery, he waited two days before removing his traps from the water because of the need to accompany his pregnant wife to the hospital in Yarmouth. After returning from the hospital he pulled his traps and kept some lobster for his birthday breakfast. Under these circumstances the court held that he acted with due diligence and acquitted him of a charge of having on board lobster traps without proper tags. However, since he did not return the lobsters to the water, the court convicted him of a charge of fishing without a valid licence.
Aboriginal - Applicability of Interim Fisheries Measures Agreement
R v. Elijah Douglas Shanoss , 2002 BCPC 316
This case involved an aboriginal defence to a charge of selling salmon caught without a fishing licence. At the time the offence took place, the accused was a member of the Gixsan First Nation that had signed an Interim Fisheries Measures Agreement and a subsequent allocation agreement that, amongst other things provided that during the 1995 fishing season, the GWWA agrees only to fish for salmon in accordance with this Agreement, the Surplus Sockeye Licence, the Sockeye License, the Surplus Pink License, the Pink License, the Plan and other fishing licenses issued by the D.F.O. and the GWWA.
In finding that this agreement precluded the accused from asserting an aboriginal right to fish, the court rejected the following arguments:
1) The Agreement only applied to Gixsan people who chose to fish under the agreement; and
2) The provisions of the agreement saying it is without prejudice to the positions taken by parties with respect to aboriginal rights, allowed the accused to assert an aboriginal right.
Offences – Misc. – Aboriginal defence - Delay
R v. George, 2002 BCPC 207
This case involved a charge against a First Nations defendant of offering to sell fish that was not caught under the authority of a fishing licence. At the commencement of the trial, the defence made an application for a judicial stay on the grounds that, “[t]hese delays have caused our clients, one of whom is an elder, considerable expense both in legal fees resulting in attending the extra various pre-trial hearings, and emotional hardship in having to wait almost 21 months from the time of the alleged offence to the day of trial” (para. 20). The court applied the test set out in R. v. Morin  1 S.C.R. 771 and found a prima facie case of delay. However, upon going to the second stage of balancing the defence need for a speedy trial against societies interest in bringing a accused person to trial, the stay was rejected on the grounds that no serious prejudice had been established. With respect to prejudice, the court said:
No evidence was offered of ongoing stress or damage to reputation resulted from the pending trial;
As discussed in R. v. Marin  B.C.J. No. 1515 at para. 19, there was no evidence of significant legal fees linked to the delays or business statements showing a decline in revenue, or doctor’s reports outlining symptoms of stress or anxiety.
Aboriginal Rights and Defences – Application for state funded counsel
R v. Bartibogue, 2002 NBQB 147
This case involved and a number of aboriginal fishermen from New Brunswick who were charged with obstructing a fisheries officer and a number of other offences related to attempting to enforce their Marshall type claim to treaty rights to fish for lobster. At the Provincial Court level a successful pre-trial application was brought in the case of R. v. Dedam  N.B.J. No. 186 (N.B. Prov. Ct.) (McCarroll Prov. Ct. J.) for state funded counsel. In making and order for a stay pending the appointment of state funded counsel, the Provincial Court noted that although a custodial sentence was not likely, a conviction could interfere with the accused’s ability to earn his livelihood. In addition, the outcome of the case “will affect hundreds of native fishers who strongly and fervently believe in their right to fish lobster.”
After making an agreement that the evidence and the order in the case of R. v. Dedam would apply to a number of similar accused including Mr. Bartibogue, a Crown appeal of all the cases was consolidated into one summary conviction appeal.
Upon appeal, the order was reversed and the stay set aside. In doing so, the court applied the test set out in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In applying that test, the court held that the applicant had failed prove the case was complex because no evidence was led to show it was an aboriginal or treaty rights case involving issues above and beyond the right of the Gov’t to regulate as allowed by R. v. Nikal  1 S.C.R. 1013.
Aboriginal Rights and Defences – Incidental Catch – Preferred means of harvest
R v. Haines et al., Prov. Ct. File No. 22340/22576C
This case involved charges against of what is commonly called dual fishing. That is, fishing at the same time under the authority of both a commercial halibut licence and an aboriginal food fishing licence.
Up until 1999, commercial by-catch of fish in excess of that allowed, could be relinquished to the Crown without penalty. At the same time, commercial aboriginal fisherman were allowed to keep by-catch and land it on their aboriginal food fishing licences to be used for food and ceremonial purposes. This was called “dual fishing”. At the same time as commercial fisherman were prohibited from avoiding penalties by relinquishing fish in excess of their allowable by-catch, D.F.O. also prohibited dual fishing by aboriginal fishermen. As a result of this change in policy, much less aboriginal food fish was landed, with the result that many of the aboriginal people in the Prince Rupert area no longer received gifts of food fish.
In 1999, the defendants participated in the commercial halibut fishery and also landed some significant quantities of by-catch as food fish under the authority of their aboriginal food fish licences. Upon being charged with violations of the conditions of both their commercial licences and food fishing licences, they asserted defences based upon an unconstitutional violation of their aboriginal rights to fish.
As required, the court determined as follows:
1) Existence and scope of their aboriginal right to fish;
2) Whether that right was interfered with; and
3) Whether the interference or infringement could be justified.
Existence and Scope of Right
Without a great deal of analysis, the court found that the defendants had an aboriginal right to fish for food and ceremonial purposes in the Nisga territory (but not Haida territory). The court went on to find that the practises necessarily incidental to this right included a profound fisheries tradition of respect. This tradition “involves the practises of not wasting fish, fishing to need, and sharing the fish caught to meet the needs of the community” (para. 136).
After reviewing all of the evidence, the court found that the restriction on dual fishing was an unreasonable infringement because it prevented the aboriginals from practicing their preferred method of fishing. Furthermore, it imposed undue hardship by requiring the aboriginals to make separate and costly trips for food fishing with the result that many elders in Prince Rupert no longer received food fish. It is found the infringement to be unreasonable because it required the throwing away of halibut (and other already dead fish) that could otherwise be used as food fish.
Justification of Infringement
After reviewing the evidence lead by the D.F.O., the court was not persuaded that the infringement took place pursuant to a compelling and substantial objective. In particular, the court noted that the infringement was motivated in part by pressure from certain members of the (presumably) non-aboriginal fishery who wanted to keep things fair and stated that “[b]y there very nature aboriginal fishing rights create a special class of fishers . . . It cannot be right for D.F.O. to rely on the discontent of non-aboriginal fishers as a purpose for diminishing the rights of aboriginal fishermen” (para. 209).
With respect to consultation, the court found that D.F.O. did not fully inform itself of the fishing practices of the Nisga’a or their views of the prohibition. Accordingly, consultation was “completely inadequate" (para. 215). The court also found that the minimal impairment test had not been met.
Editor’s Note: With respect to the court’s comments regarding D.F.O. not relying on the discontent of non-aboriginal fishers as a purpose for diminishing the rights of aboriginal fishermen, see R v. Gladstone  2 S.C.R. 723 where in discussing the possible justifications for limiting the aboriginal right to catch and sell the roe on kelp, the Supreme Court of Canada suggested that the Government could consider such factors as the pursuit of regional and economic fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. The court noted, that under some circumstances, the reconciliation of aboriginal societies with the rest of Canada may well depend on such recognition.
Although the Crown originally filed an appeal of this decision, it has been dropped.
See also R. v. Puratich (5 June 2002) Port Alberni Prov.Ct. Registry No.30568 (B.C. Prov. Ct.) digested herein for an example of a non-aboriginal case where the court accepted a due diligence defence regarding by-catch and made some obiter comments regarding the problems with D.F.O. rules regarding incidental catch of halibut (para. 23).