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.
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Aboriginal Rights and Defences - Prima Facie Infringement of Treaty 8 Fishing Rights
R v. Hamelin, 2010 ABQB 529
Aboriginal Rights and Defences - Whether Treaty Providing that "a project shall not be submitted to more than one (1) impact assessment . . ." excludes assessment under Federal Fisheries Act and CEAA
Quebec (Attorney General) v. Moses, 2010 SCC 17
Aboriginal Rights and Defences - Taxation of Fishing income from traditional Territory (Off reserve) Taxation - Taxation of Aboriginal Fishing Income
Roberts v. R, 2010 TCC 52
This case involved a status member of the Kitsumkalum First Nation who lived on a reserve near Port Essington approximately 70 miles from Prince Rupert, British Columbia. After being assessed income tax on fishing income earned while fishing outside his reserve, but in his traditional fishing territory the FN Fisher appealed his assessment to the Tax Court of Canada. In deciding whether or not to assess tax upon the income, the court applied a 9 part connecting factors test.
With respect to location of the fixed place of business, the Court found that the FN Fisher lived on a reserve and maintained a business office and stored equipment on the reserve.
With respect to business activities, nature of work and location where business decisions made, (the most important connecting factor) the Court found (1) the core of the business was catching fish aboard a commercial fishing vessel located in off reserve waters, (2) the catch was never taken to the reserve, but offloaded directly to fish plants located off reserve, (3) business decisions were made both on reserve while planning and off reserve while fishing.
With respect to place of payment, while some cheques were delivered to the reserve, most payments were made by the fish buyer directly crediting his account.
With respect to, the degree to which the business was integral to life on the reserve or in the commercial mainstream, it was argued by the FN Fisher that the fishing activity was integral to life on the reserve because it was done in his Nation's traditional fishing territories. This argument was rejected because of (1) weak evidence of traditional use in the areas in question, and (2) existing jurisprudence such as Walkus v. R.  3 CTC 181 that gave a very narrow definition of the phrase "on a reserve".
Based upon the Court's review of all the connecting factors, it upheld the Government's assessment of tax payable.
Aboriginal Rights and defences - Roadside Inspection for Game - Whether breach of s. 7 & 10(b) charter rights to search and take statement after conservation officer had reasonable and probable grounds
R v. Rice, 2009 BCCA 569
This case involved charges of illegal hunting and possession of moose by three aboriginal hunters. Although not a fisheries case, it is relevant to fisheries prosecutions because (1) it involved an inspection under s. 95 of the B.C. Wildlife Act, which is similar to an inspection under s. 49 of the federal Fisheries Act; (2) it applied the test formulated in the Supreme Court of Canada fisheries case of R. v. Fitzpatrick,  S.C.R. 154; and (3) it is one of the first post R. v. Grant appellate decisions (digested here) dealing with search and seizure in regulatory prosecutions.
The background facts are that a conservation officer was conducting a road side inspection under s. 95 of the Wildlife Act at a time when moose hunting in the area was closed except for aboriginals from that specific area. When the conservation officer asked if the three occupants of the motor vehicle had been hunting, one occupant responded in the affirmative. When ask if they had shot anything, they answered in the affirmative and produced status cards showing that only one of the three status aboriginals were from the immediate area. When asked what was shot, one of the occupants, who was not from the immediate area, admitted to shooting a moose that was in the back of the motor vehicle.
At trial and the ensuing appeals, the issues were:
Whether or not the admission of shooting the moose should be excluded from evidence pursuant to (1) s. 7 of the Charter for interfering with rights of liberty (because of threat of imprisonment) and fundamental justice (because of self-incrimination) and/or (2) s. 10(b) of the Charter for failing to provide a right to counsel when detained.
With respect to the s. 7 rights, the accused argued that his rights were breached because he was compelled to answer incriminating questions after the conservation officer had established reasonable and probable grounds to believe an offence had been committed. In determining whether or not the s. 7 rights of the accused had been breached the court applied the four-part test from R. v. Fitzpatrick as adopted and applied in R. v. White,  2 S.C.R. 417, namely (1) existence of coercion; (2) existence of an adversarial relationship between the accused and the state; (3) the risk of an unreliable confession in a statutorily compelled confession; and (4) whether use of the statement would increase the likelihood of abuse by the state.
With respect to the existence of coercion, the Court followed the Fitzpatrick decision and ruled that "the obligations imposed upon the accused hunter were imposed as a result of voluntary participation in hunting, a highly regulated activity." Accordingly, as in the case of Fitzpatrick, the requirement to provide information regarding hunting activities was not considered coercive (para. 61).
With respect to the existence of an adversarial relationship, the Court followed R v. White to hold that even though the conservation officer had reasonable grounds to believe that an offence had occurred, since the dominant purpose of the questioning was not the investigation of an offence, the relationship was not considered adversarial for the purpose of the test.
The Court also ruled that the items 3 and 4 of the Fitzpatrick test did not apply.
With respect to the s. 10(b) right to legal counsel, it was argued by the accused that he should have been advised of his right to counsel and been provided with an opportunity to consult with counsel before being asked who shot the moose. For reasons similar to those articulated with respect to s. 7 of the Charter, the Court ruled that the accused must be deemed to have consented to be detained by virtue of his participation in the licenced activity. Although the roadside stop and questioning could be considered a detention as in the sense used in the case of R. v. Subaru, 2009 SCC 33 (a companion case to R. v. Grant referred to here), this form of investigative detention did not trigger a right to counsel. As was the case with the s. 7 analysis, there was no infringement despite the fact that the conservation officer had reasonable and probable grounds to believe an offence had occurred because "the purpose of s. 95 and all the questions asked by the officer was to obtain truthful information about compliance with the Act" (para. 74). Given the Courts reference to R. v. White in the same paragraph, presumably the Court meant "predominate" purpose.
Editor's note: As a result of this case, some earlier cases such as R. v. Kinghorne, 2003 NBQB 341 (digested here) may no longer be good law. Some of these earlier cases held that an inspection was transformed into a search when credibly based probability replaced suspicion. In this regard, see also the references in this case to R. v. Jarvis 2002 SCC 73 [link] at pargraphs 41-8.
Offences - Aboriginal Rights and Defences - Misc. - Failure to Designate under s. 8 of the Aboriginal Communal Fishing Regulations - Necessity of Including charge in Information - directed verdict
R v. Boudreau, 2009 NSPC 45
Taxation - Fishing Income of Aboriginal Fisher - Aboriginal Rights and Defences - Fishing Income
Ballantyne v. R., 2009 TCC 325
This case involved an aboriginal fisher who fished off reserve, but delivered his fish to and on reserve fishing co-operative that acted as agent for off reserve fish marketing company. The Tax Court ruled that the fishing income was not exempt from taxation.
Offences - Misc. - disclosure Aboriginal Rights and defences - disclosure (discussions between Band Council and Gov't Officials)
R v. Boudreau, 2009 NSPC 7
This case involved charges of illegal fishing for snow crab pursuant to Aboriginal Communal Fishing Regulations. When defence council discovered that the Band Council of the First Nation that that issued the Communal Fishing licences had discussed the case with several Government officials, including enforcement officers, he sought production of any reports and/or e-mails resulting from that meeting.
After reviewing the applicable jurisprudence the court held that since the Crown was unaware of any further information being in existence, this was a situation where the onus was on the defence prove that "there is in existence further material that is relevant" (para. 21). With respect to the existence of evidence, the court ruled that he accused had failed to establish the existence of any such evidence. With respect to relevance, the court held that even if documentation existed, it would not be relevant because the discussions at the meeting related to (a) what was required of the Band to prevent similar offences occurring in the future, and (b) the impact of the seizure of fish seized from the accused on the Band's seasonal fish quota.
Judicial Review/Crown Liability -Aboriginal Rights/Defences
Nunavut Wildlife Management Board v. Minister of Fisheries and Oceans et al., 2009 FC 16
Barry Group, a Canadian Fishing Company, sold 1900t of turbot quota to two other offshore fishing enterprises for in excess of $10 million. The Minister approved the transfer in late January 2008 and after completing the usual searches, the purchasers completed the transaction in early March 2008, more than 30 days after the Minister’s decision. On March 14, 2008, the Nunavut Wildlife Management Board (“NWMB”) filed an application for judicial review, on the grounds that it was not adequately consulted. On its face, NWMB would not appear to be a party directly affected by the quota transfer approval decision, however the court held that it was and that the application was not beyond the normal 30 day time limit for such applications because NWMB was not aware of the decision until Feb. 18, 2008. None of the commercial parties had any notice of the NWMB interest until they received notice of the application for judicial review.
The Court held that the lack of consultation did not violate Article 15.3.4 of the Nunavut Land Claims Agreement because the quota transfer did not affect the substance or value of the Inuit harvesting rights and opportunities. As a result, the Court did not overturn the Minister’s decision. However, given new concerns raised by the applicant, the Court held that in the future the Minister should broaden his or her consultations with NWMB so as to give the Nunavut an opportunity to explore the possibilities of purchasing quota from quota holders that no longer wished to remain in the fishery.
Aboriginal Rights and Defences - Aboriginal Commercial Fishing Rights and Fiduciary Duty
R v. Tommy, 2008 BCSC 1095
This case involved a number of charges of illegal fishing by members of the Cheam First Nation on the Fraser River. With respect to some of the charges, the court ruled the Crown failed to justify closing aboriginal fishing on the Fraser River at a time while the recreational fishery was still open. With respect to other charges the Crown held that the Crown's closures were justified despite failure to have bilateral consultations because the Cheam failed in their reciprocal duty to participate in consultations in good faith. In addition the court said that "[t]he courts cannot be expected to micromanage the complex and dynamic task of planning, coordinating and allocating fisheries amongst a variety of user groups." [para 117]. The court also confirmed that sustainability is a valid legislative objective (para. 57). For similar companion cases where the Crown was entirely successful see R. v. Douglas, 2008 BCSC 1097 [link] and R. v. Aleck, 2008 BCSC 1096 [link].
Aboriginal - Oral History - Judicial Review - Admission of supplementary affidavits of Aboriginal Oral History
Gwasslaam (Geroge Phillip Daniels) v. Canada (Fisheries and Oceans), 2008 FC 912
This case involved a claim to an aboriginal fishing right.
In an application under Federal Court Rule 312 to admit supplemental affidavit evidence of oral history, the Prothonotary denied the application primarily on the grounds that the evidence of oral history was available at the time the application was filed. Upon appeal from a decision of a Prothonotary, the court ruled that it was "in the interests of justice that available evidence with respect to the state of the oral history underlying the Aboriginal claim at the heart of the Application should be available to aid the judge deciding the Application." (para. 13)
Aboriginal Rights and Defences - Pilot Sales Licence Issued Under Aboriginal Communal Fishing regulations - Not a violation of S. 15 of the Charter of Right
R v. Kapp, 2008 SCC 41
Not yet available.
Aboriginal Rights and Defences - Judicial Review of Decision to Limit lobster catch permitted under Aboriginal Communal Food and Ceremonial Fishing Licence - Consultation requirements
Native Council of Nova Scotia v. Canada (Attorney General), 2008 FCA 113
This case involved an application for judicial review of a decision of the Minister of Fisheries to limit the permitted lobster catch under an Aboriginal Communal Food, Social and Ceremonial Licence issued to the Native Council of Nova Scotia ("NCNS"), a society that was created for the purpose of "assisting and giving a collective voice to Mi'kmaq and other Aboriginal persons living 'off-reserve' in Nova Scotia" (para. 7). The fishing licence in question, had been issued pursuant to a harvest plan negotiated as part of a "Aboriginal Fisheries Arrangement" negotiated between DFO and NCNS.
As a consequence of concerns over poaching occurring under the guise of the fishing permits issued pursuant to the fishing licence and after some consultation, DFO modified the Licence to impose a 20 trap per person per day limit.
At the hearing the three over-lapping issues were raised:
1) Administrative law issue (procedural fairness);
2) Constitutional issue (s. 35 duty to consult); and
3) Contractual issue.
With respect to the constitutional issue, the trial level court ruled that the applicant had failed to establish the breach of a duty to consult for a number of reasons including the following:
a) Not all of the members of the NCNS had an aboriginal right to fish;
b) No aboriginal right was asserted in the applicants pleadings and the court was unable to imply one from the evidence presented;
c) One cannot meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right (quoted from Haida);
d) the duty to consult and accommodate does not guarantee aboriginal groups the outcome they desire (quoted from Haida);
With respect to the allegations of breach of procedural fairness, after reviewing the little evidence that was available, the trial level court concluded that NCNS had an opportunity to participate in the process of determining a course of action to address the poaching concerns. Although the views of NCNS were not accepted, they were considered. Under the circumstances, this was adequate.
With respect to allegations that DFO breached the consultation requirement of the Aboriginal Fisheries Arrangement, the trial level court ruled that the agreement only required that the parties "attempt" to find a mutually acceptable solution to their dispute. It did not impose a requirement that they "arrive" at a mutually acceptable resolution of their dispute.
Upon appeal, the decision of the trial level court was upheld based upon its reasoning with respect to items one and two above.
Aboriginal Rights and Defence - Whether Aboriginal Communal Fishing Management Entity employer as defined by Nova Scotia Workers' Compensation Act Employment Law - Whether Aboriginal Communal Fishing Management Entity employer as defined by Nova Scotia Workers' Compensation Act
Mime'j Seafoods Ltd v. Nova Scotia (Workers' Compensation Appeals Tribunal) , 2007 NSCA 115
This case involved judicial review of a decision of the Nova Scotia Workers' Compensation Appeal Tribunal that held that Mime'j Seafoods Ltd. was a employer for the purpose of assessments under the Workers' Compensation Act.
Mime'j Seafoods Ltd. was an aboriginal communal fishing management entity that was incorporated for the sole purpose of accommodating D.F.O.'s requirement that fishing licences be held by either a band or some other entity recognized by Canadian law. It was the owner of 12 fishing vessels used in the aboriginal fishery and holder of multiple licences granted under the Aboriginal Communal Fishing Regulations. It leased vessels and licences to captains and deckhands for use in the fishery. It also underwrote the operating expenses, provided fishing gear and controlled the disbursement of the proceeds of the landed catch.
Although Mime'j was not asserting any aboriginal or treaty right (para. 5), it argued that because the Act provides no definition for the word "employed" it was necessary to go the the common law to determine whether or not the crews of the Mime'j vessels were employed (para 37-8). In doing so, the aboriginal world view would suggest that the "various fishers are engaged in a variety of separate joint venture operations" (para. 39).
After a detailed review of the principals of statutory interpretation and the applications of those principals to the Act, the court concluded that Mime'j was an employer under the Act without the need to resort to the common law. Consequently, it was not necessary to consider the aboriginal world view on the definition of employment.
Judicial Review/Crown Liability - Aboriginal Rights and Defences
Ahousaht First Nation v. Canada, 2007 FC 567
This case involved an application by group of First Nations for judicial review of a decision of the Minister of Fisheries to implement a three year pilot plan for individual transferable fishing quotas in the for rockfish, lingcod and dogfish. It was alleged by the First Nations that the Minister had failed to satisfy its duty to consult before implementing the pilot plan. With respect to the scope of the duty to consult the court concluded as follows:
In this case, we are not dealing with a claim to a specific piece of land where the government might be contemplating some development project, or even the issuance of a licence to exploit resources on said land which might substantially deplete the resource in question. Rather, we are dealing with a claim of an aboriginal right to fish commercially, in the context of a proposal by the government to implement a program of quotas with a view, first and foremost, to encourage conservation, as well as to meet a number of other objectives, such as achieving greater accountability and improving economic viability. As such, the respondent argues that, rather than infringing the applicant’s alleged rights, the Pilot Plan will help protect the groundfish fisheries, for the benefit of all Canadians, including the applicants.
In ruling that the Crown had satisfied the duty to consult the court said as follows:
Given the multilateral consultations that were held by DFO in which the applicants took part, given the conservation issues at stake, given the potential impact on groundfish fisheries of the introduction of the 100 per cent monitoring of all catch for the 2006 fishing season without the implementation of transferable IQs, and given that the plan was introduced as a three-year pilot only, I am satisfied that the Minister’s decision to proceed without waiting for bilateral consultations with the applicants to conclude was justified, and did not constitute a failure to abide by his duty to consult with the applicants. [para. 66]
Editor's note: This case was upheld on appeal for slightly different reasons. The decision is reported at 2008 FCA 212
Aboriginal Rights and Defences - Justification
R v. Douglas, 2007 BCCA 265
This case involved a dispute between the Cheam First Nation and D.F.O. over D.F.O.'s decision to open a marine sport fishery permitting retention by non-aboriginal fishers of Early Stuart sockeye. This is run of special significance to the Cheam and most of the other First Nations on the Fraser river because (1) it is the first run of the season, and (2) it has a high fat content and high quality. At trial the Crown conceded that there had been infringement, but argued that infringement was justified.
With respect to justification, the Cheam argued that the Crown's decision to open the marine sport fishery at a time when there were restrictions on the aboriginal fisheries was not in accordance with the honour of the Crown (the second part of the Sparrow justification test) because (1) it failed to give priority to the aboriginal right and (2) D.F.O. made the decision without consulting the Cheam.
At trial, the Crown was successful. At the summary conviction appeal level, the Cheam were successful.
Upon further appeal to the B.C.C.A., the Crown was successful. With respect to the issue of consultation, the B.C.C.A. ruled that the Crown's consultation was adequate for the following reasons:
1) Having conducted appropriate consultations in developing and implementing its fishing strategy, D.F.O. is not required to consult each First Nation on all openings and closures throughout the season, where the actions are consistent with the overall strategy (para. 42);
2) Even if the marine recreational opening was not consistent with the strategy developed through consultation, there was no duty to consult because the opening had no appreciable adverse effect (para. 44); and
3) Given the finding that the Cheam did not fulfil their reciprocal obligation to carry out their end of the consultation, to require the Crown to consult on a minor issue goes beyond what is required to justify D.F.O.'s conduct (para. 45).
With respect to the issue of priority, the court said as follows:
As part of the contextual analysis into priority, it will sometimes be necessary to consider the practical difficulties occasioned by the movement of the fish themselves: Sparrow, supra, at 1116, citing R. v. Jack,  1 S.C.R. 294 at 313. The Fraser River sockeye encounter numerous fisheries, including aboriginal, recreational and commercial, as they migrate from the Pacific to their spawning grounds. If a non-aboriginal fishery could never precede any of the aboriginal fisheries, the result would be an exclusive food, social and ceremonial fishery, regardless of need and abundance of stock. That cannot be the intended result of Sparrow, where the Court stated that the objective of the priority requirement is to guarantee that fisheries conservation and management plans “treat aboriginal peoples in a way ensuring that their rights are taken seriously” (at 1119). [para. 54]
In this case the court noted that brunt of the conservation measures were borne by the sports and commercial fishery, which combined caught only 216 fish out of a total of approximately 206,000 fish.
Leave to appeal to the Supreme Court of Canada was denied. See:  S.C.C.A. 352
Practice – No duty to pay interest on proceeds of sale of fish - Offences – Forfeiture – No duty to pay interest on proceeds of sale of fish - Aboriginal - Rights and Defences – No Duty to pay interest on proceeds of sale of fish
Gladstone v. Canada , 2005 SCC 21
This case involved a quantity of herring spawn on kelp that was seized pursuant to s. 58(1) of the Fisheries Act (1970) and subsequently sold pursuant to s. 58(1) and paid into the consolidated revenue fund. After a successful appeal by the fishermen to the Supreme Court of Canada, the matter was eventually stayed by the Crown and the proceeds of sale were paid out to the fisherman eight years later pursuant to s. 73.1 of the Fisheries Act without interest. It was agreed that if interest were payable, it would be $132,000.
The issue before the Supreme Court was whether or not the Crown was required to pay interest on the funds for the period in which the funds were held.
Although there was a dearth of authority directly on point, the trial court canvassed a great deal of jurisprudence dealing primarily with non fisheries cases to reject all of the fishermen’s arguments and conclude that the Fisheries Act is a complete code and “in the absence of statutory authority there is no obligation on the Crown to pay interest.” (2002 BCSC 1447)
Upon appeal, the decision of the trial court was reversed in a decision written by Madam Justice Huddart. In making an order for the payment of interest, the court based its order upon a breach of fiduciary duty, though not one arising from the fact that the fisherman was aboriginal. The court classified the Crown as an “administrator of special purpose funds” who by virtue of its discretionary power and other factors became a fiduciary.
Upon further appeal, the Supreme Court of Canada reversed the B.C.C.A. and held that no interest was payable by the Crown. In doing so, it relied upon R. v. Ulybel Enterprises Ltd.  2 S.C.R. 867 in support of its finding that the Fisheries Act was a complete code dealing with the return of seized property. The Act provides for payment of interest in other circumstances (s. 71.1(2) and s. 79.4(1)), but not when the proceeds of seized items are returned under s. 73.1. Since no provision is made by the Fisheries Act for the payment of interest, no payment is required. In making its decision, the court rejected arguments based upon the requirements of the Financial Administration Act, unjust enrichment, fiduciary duty and trust. With respect to unjust enrichment, the court found that the provisions of the Fisheries Act referred to above fell into the "disposition of law" category of juristic reasons for an enrichment. With respect to breach of fiduciary duty, the court distinguished the case of Authorson v. Canada (2002), 58 O.R. (3d) 417 that had been relied upon by the B.C..C.A.
Judicial Review/Crown Liability - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement - Standing of Attorney General of Nunavut - Aboriginal Rights and Defences - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement
Nunavut Territory (Attorney General) v. Canada , 2005 FC 342
This case involved the challenge of a decision of the Minister of Fisheries involving the allocation of the benefit of a 29 per cent increase in the total allowable catch of shrimp. This 29 per cent increase amounted to 2,127 additional tons of catch. of that 2,127 tons, all but 940 tons were allocated to Nunavut or Nunavut related interests. The remaining 940 tons were allocated to 17 existing licence holders who helped develop the fishery. Of those 17 existing licence holders, 1.5 of the licences were Nunavut interests.
One of two preliminary motions concerned the standing of the Attorney General of Nunavut to bring the judicial review application. Since the A.G. was not directly affected by the decision, the court ruled it had no standing under s. 18.1 of the Federal Court Act. In addition, it did not have public interest standing because there was another reasonable and effective way to bring the issue before the court by way of application by Nunavutr Tunngavik Incorporated. Notwithstanding the lack of standing, in the interest of judicial economy the court decided to exercise its discretion to adjudicate the matter.
The court also rejected a preliminary motion to deny the application on the basis of mootness.
With respect to the main challenge to the decision, the court applied a standard of review of patent unreasonableness and denied the application as follows at paragraphs 69 - 70::
In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) [footnote deleted], Justice Evans, for the Court, wrote at paragraphs :
appellant's quota in the turbot fishery has increased over the years, both absolutely and relatively, it cannot be said that the Minister had no regard to the adjacency and economic dependency principles.
I am satisfied that precisely the same could be said on the facts on this matter in relation to the Northern shrimp allocation in SFA 1 to Nunavut interests. Further, it is beyond question that the share of Nunavut interests in the 2003 increase of quota allocation was significantly higher than that of other interests in the same fishery. Against the words of Article 15.3.7 of the Agreement, it cannot be said that "special consideration" was not given to the principles of "...adjacency and economic dependence in the Nunavut Settlement Area on marine resources...", particularly when the Minister was required to apply those principles "...in such a way as to promote a fair distribution of [quota] between the residents of the Nunavut Settlement Area and the other residents of Canada ...in a manner consistent with Canada's interjurisdictional obligations." The special allocation made to Nunavut interests clearly was not "special enough" in the eyes of the Government of Nunavut and in the eyes of Nunavut Tunngavik Incorporated. It is not difficult for the Court to be sympathetic to that position, but that, of itself, is no grounds to set aside the decision under review. Against the standard of judicial review that is here appropriate, I am satisfied that the decision under review must stand. It cannot be said to be patently unreasonable. Put another way, it was open to the Minister, taking into account all of the competing interests that were before him.
Judicial Review/Crown Liability
Aboriginal Rights and Defences - Approval of Amendment of fish farm licence
Homalco Indian Band v. British Columbia, 2005 BCSC 283
Offences – Misc. – Protest Fishery – Absolute Discharge
R v. Anderson , 2004 BCSC 1745
This case involved charges of fishing during a closed time against 40 commercial fishermen who were protesting the refusal of the Department of Fisheries and Oceans (“D.F.O.”) to open the fishery. At a sentencing hearing, the court extensively reviewed the evidence regarding the extremely large run size and the inequities surrounding the Aboriginal Pilot Sales fishery that was allowed to fish ahead of the commercial fishery.Upon completion of this review of the evidence, the court granted an absolute discharge.
Upon being appealed by the Crown, the court indicated that although some of the trial court's comments regarding the aboriginal fishing strategy were unnecessary, given that this was a protest fishery with advance notice being given to the authorities, no risk of the actions being repeated by the offenders and the co-operation of the offenders with the authorities, the absolute discharges were upheld.
Aboriginal rights and defences - Justification for closure of Fraser River because of unusually high water temperatures notwithstanding allocation to other user groups prior to rise in temperature - Rebuilding of fish stocks a necessary part of conservation
R v. Bonneau , 2004 BCSC 1370