Aboriginal Fisheries Cases

Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal.

EDITOR'S NOTE - This section of Fisheries Law has not been updated since 2005. (some cases are available on the Recent Cases page)

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 (A.G.) [2005] F.C.J. 423, 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 [4]:

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.

Aboriginal rights and defences - Challenge to Minister's power to amend a fish farm licence without proper consultation of Indian Band - Declaration of duty to consult

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 - 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

Aboriginal rights and defences - Infringement - By itself, a 7.5 month closure of a river does not establish a prima facie infringement

Aboriginal rights and defences - S. 7 privilege against self incrimination breached (R. v. Fitzpatrick distinguished when exercising constitutionally protected right to harvest for sustenance purposes) -

Aboriginal rights and defences - Costs awarded when charges withdrawn after long delay

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

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

Aboriginal Rights and Defences - Rejection of food fishing defence to charges under Sports Fishing Regs.

Aboriginal Rights and Defences - Stay for unreasonable delay and failure to to comply with disclosure order of privileged documents overturned on appeal

Aboriginal Rights and Defences - Unlawfully selling of aboriginal food fish - definition of "sell"

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] B.C.J. No. 128, 2004 BCSC 92

Aboriginal Rights and Defences - Metis - Failure to establish existence of identifiable metis community

Aboriginal Rights and Defences - Bait Ban - No prima facie infringement if no evidence called by defence

Aboriginal Rights and Defences - Procedure re Justification Phase - Voluntary Allocation Agreement with DFO - Communal nature of Right

Aboriginal Rights and Defences - Unlawfully selling of aboriginal food fish - definition of "sell"

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".

Judicial Review/Crown Liability – Definition of “fishing” - Does not require the holder of the licence to use or exploit the fish that were killed

Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd. 2003 F.C.J. No. 1893, 2003 FCA 484

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.

Offences – Misc. – Protest Fishery or Pilot Sales – No Racial Discrimination

Aboriginal Rights and Defences - Treat Right to Fish for Lobster – Aboriginal Right –

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, [1996] 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.

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).

R. v. Tommy, Nelson and Douglas 2002 BCPC 0039 (B.C. Prov. Ct.) (MacGregor, Prov. Ct. Judge)

This case arose out of charges of drift-net fishing without a licence in the Fraser River by members of both the Cheam Indian Band the Kwantlen Band. At trial the Crown conceded a Prima Facie infringement of an aboriginal right to fish. With respect to the issue the infringement, the court applied the Sparrow test and concluded that the restriction on the aboriginal right to fish for food and ceremonial purposes was justified.

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:

Aboriginal Rights and Defences – Incidental Catch – Preferred means of harvest

R. v. Haines et al. (3 October 2002) Prov. Ct. File No. 22340/22576C Prince Rupert Registry (B.C. Prov. Ct.) (Point, Prov. Ct. Judge)

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.

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.

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 [1996] 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).

This case is the first post Marshall decision (digested herein) involving aboriginal fishing for lobster by members of the Burnt Church First Nation in Miramichi Bay. After the release of the Marshall decision, the accused was charged with illegal fishing for lobster in Miramichi Bay.

Aborigal – Treaty Rights – Marshal Defence – Application for State Funded Counsel

R. v. Peter Paul [2002] N.S.J. No. 384; 2002 NSPC 25 (N.S. Prov. Ct.) (Gibson, A.C.J. Prov. Ct.)

This case involved illegal fishing charges against two First Nations defendants who wished to assert a defence based upon a Marshal type treaty right. Upon reviewing all of the facts, the court distinguished R. v. MacDonald [2001] N.S.J. No. 368 (N.S.C.A.) (digested herein) and granted state funded assistance on the basis of the test set out in R. v. Rowbotham (1998) 41 C.C.C. (3d) 1 (Ont. C.A.).

R. v. George [2002] B.C. J. No. 1313; 2002 BCPC 207 (B.C. Prov. Ct.) (Brecknel (Prov. Ct. J.)

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 [1992] 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:

Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd. 2003 FCT 30 (F.C.T.D.) (Rouleau J.)

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 [2002] 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 practises in the sports fishery where anglers catch fish with the specific intention of releasing them once they are caught.

Aboriginal Rights and Defences – Buying and selling salmon caught under authority of a food fish licence

This case involved charges of buying and selling salmon caught under the authority of a food fishing licence.

This judgment was a ruling on a voice dire concerning the admissibility of documents seized under the authority of two search warrants issued under s. 487 of the Criminal Code.

The court reviewed the affidavits filed in support of the affidavits and concluded that they contained erroneous and unsupported evidence. The court also concluded that there was material non-disclosure. Accordingly, it ruled that the search had violated the Charter. In ruling that the evidence obtained as a result of the violation should be excluded, the court said as follows:

In the public and highly polarized environment of the salmon fishery on the Fraser, it is important the authorities act in accordance with the law, inform themselves of their obligations under the Charter of Rights and Freedoms and act in accordance the these obligations. The D.F.O. should provide its officers with the resources to do so. Given the seriousness of the breaches, the lack of good faith, I am satisfied on the balance of probabilities that the administration of justice would suffer greater disrepute from the admission of the evidence than from the exclusion.

Regina v. Arthur Aleck et al. 2000 BCPC 0177 (B.C. Prov. Ct.) (MacDonald, P.C.J.)

This case involved charges against 17 members of the Cheam Indian Band for fishing within their traditional territory on the Fraser River during a time that the fishery had been closed by D.F.O. Since the Crown admitted a prima facie case of infringement, this decision focused primarily on whether or not that infringement could be justified. In upholding the infringement as justified, the court said, amongst other things, as follows:

1. The term “conservation” means “more than merely protecting the stocks from extinction” (para. 35) and includes a D.F.O. plan to gradually rebuild the stocks over a 24 year period;

2. The Cheam do not have an ownership right in the fish, their right is “no more than a constitutionally protected Aboriginal right to fish, and that same right extends to all other Aboriginal Bands on the Fraser river, and in fact, to Aboriginal bands in Vancouver Island, who may have some access to the same fish” (para. 44);

3. Since fish were not “expropriated” in the sense used in Sparrow at page 119, the question of compensation does not arise (para. 50); and

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 [2001] 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 [1996] 1 S.C.R. 1013.

This case involved and an aboriginal lobster fisherman from New Brunswick who was charged with obstructing a fisheries officer. At a pre-trial application, the fisherman applied to have state funded counsel appointed to conduct a defence based upon aboriginal rights that was estimated to cost approximately one million dollars. After reviewing the authorities, the court ordered a stay of proceedings pending the provision of state funded counsel. In doing so, the 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 “well affect hundreds of native fishers who strongly and fervently believe in their right to fish lobster.”

This case involved three aboriginal fishermen charged with fishing the early Stuart run in the Fraser River without a licence.

At trial, the Crown conceded that their aboriginal right to fish had been infringed. Accordingly, the issue before the court was whether or not the Crown was justified in imposing the closure of the fishery for conservation purposes.

At trial, the defence argued that the infringement could not be justified because, amongst other things, D.F.O. had allowed both an in river test fishery and a sports fishery. After reviewing the test set out in R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.), the trial court concluded that the infringement could not be justified and entered stays of proceedings.

Upon summary conviction appeal to the British Columbia Supreme Court, the decision of the trial court was reversed and the stays were lifted. In doing so, the court reasoned as follows:

1. The trial judge made palpable and overriding errors with respect to his findings regarding the impact of the sports fishery;

2. With respect to whether or not there was a valid legislative objective for the infringement;

3. Given the fact that very small numbers of fish were caught in the test fishery and non-tidal sports fishery, top priority was given to the aboriginal fishery after conservation measures;

This case involved four first nations accuseds, who were charged with harvesting clams in a closed area, namely, the Nanaimo estuary. At trial, evidence was led that that the Nanaimo First Nations Band and the Federal Government had entered into an agreement to suspend the treaty rights to harvest in that area because of pollutants in the area creating a health hazard for persons consuming the clams.

At trial, the case was defended based upon an alleged infringement of their treaty right to fish.

1. Given the evidence that suspension of the fishing rights was made with the agreement of the Band Council for safety and health reasons, the court found no infringement;

2. In the alternative, if there was an infringement the court held that it was justified for the follow reasons:

b. Despite the fact that it was now necessary to take a car or ferry to find harvesting grounds, the suspension did not impose undue hardship

c. With respect to whether or not the preferred means of exercising an aboriginal right had been denied, the court concluded that this right did not include a right to exercise the right in a preferred location; and

This case involved an alleged agreement between the Yale First Nation and the Minister of Fisheries to allow a pilot sale fishery in the year 2000 pursuant to the Aboriginal Communal Fishing Licence Regulations.

In an application for summary judgment under Rule 18A, the Yale First Nation sought a declaration that a document purporting to record the agreement was an enforceable agreement.

The Crown opposed the application for summary judgment and also sought a declaration under Rule 19(24) that the plaintiff’s claim be struck as disclosing no reasonable claim.

With respect to the summary judgment portion of the application, the court admitted parole evidence to find that the written agreement contained a condition precedent to the effect that the agreement was contingent upon the Department of Fisheries obtaining a similar agreement from a neighbouring First Nations group. Since such an agreement was not obtained, the condition precedent was not satisfied and the agreement was not enforceable.

In obiter, the court also said that given the decision of Comeau’s Seafoods Ltd. v. Canada (Fisheries and Oceans) (1997), 142 D.L.R. (4th) 193 (S.C.C.), even if the condition precedent had been satisfied, the Minister could not have been forced to issue a fishing licence.

With respect to the application to strike under Rule 19(24), the court was sympathetic to the Crown’s argument that at best the agreement was only an agreement authorize the issuance of a licence. And since the Minister had the discretion under section 7 of the Fisheries Act to revoke that authorization at any time prior to the licence being issued, no damages could flow. However, since the Federal Court of Appeal in Comeau’s Seafoods “did not state that such a claim [for damages] could never be successful”, the court did not strike the plaintiff’s claim.

In obiter, the court also suggested that under the circumstances, the plaintiff may not have been entitled to declaratory relief because the declaration only concerned a future right (the issuance of a fishing licence) as opposed to an existing right. Given the Comeau decision, the court suggested the plaintiff’s rights did not ripen until a licence had actually been issued.

Editor’s Note: Unfortunately, the reasons for judgment in this case do not show the actual wording of the written agreement signed by the Yale First Nation. If the actual agreement only referred to the Minister agreeing to “authorize” the issuance of a licence, then I would agree with the obiter comments of the court. However, if the agreement were simply to issue a licence, I would think the plaintiff would have a reasonable prospect of at least obtaining a judgment for damages. See for example paragraphs 74-7 of the Court of Appeal judgement in Comeau Seafoods; Puddister Trading Corporation Ltd. v Canada (28 May 1997), No. T-168-92 (Fed. Ct. T.D.) (Simpson J.) (digested herein); But see: Aucoin v. Canada (Minister of Fisheries and Oceans [2001] F.C.J. No. 1157; 2001 FCT 800 at para. 47-8.

Aboriginal Rights and Defences – Availability of Interlocutory Relief to stop Enforcement Measures

Practise – Injunctions that Finally Determine Rights Ought not be made on an Interlocutory Basis

Crown Liability Judicial Review – Availability of Injunctive Relief Against the Crown

Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans) [2000] F.C.J. No. 1445 (Fed. Ct. T.D.) (Pelletier J.)

This case involved a Nova Scotia Indian Band which was relying upon the two R v. Marshall decisions (digested herein) in support of an application for an interlocutory injunction to enjoin D.F.O. from taking enforcement measures to prevent its members from participating in a Band regulated lobster fishery.

With respect to the first issue, the court reconciled two somewhat inconsistent authorities to hold that “injunctions which finally determine rights, and therefore amount to a declaration of rights, ought not be made on an interlocutory basis” (para. 44) except in situations where (1) “the rights must be exercised immediately or not at all” or (2) “when the damage caused by the refusal of the injunction will make success at trial nugatory” (para. 51). Since the issue of treaty rights to fish for lobster would likely “stretch a long way into the future (para. 52), the court did not apply any of the exceptions to the general rule. Accordingly the Court ruled that the motion for interlocutory relief be dismissed.

Despite its dismissal of the motion, the court also gave its view on the application of the tripartite test for the availability of an injunction. In reviewing the test for determining the balance of convenience the court applied RJR-MacDonald Inc. v. Canada [1991] 1 S.C.R. 311 to find that in constitutional type cases, one must look at the public interest. Once it is established that the government authority is charged with the duty of promoting the public interest and that the “impugned legislation, regulation, or activity was undertaken pursuant to that responsibility” . . . “the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action” (para. 65). Since the impugned conduct was the enforcement activities of the Department Fisheries against persons fishing without licences, the court ruled, that “the public interest is against creating a vacuum of authority”. Accordingly the court found that the balance of convenience did not favour granting an injunction.

Offences – Aboriginal Communal Fishing Regulations – Notice required under Statutory Instruments Act

This case involved and aboriginal fisherman charged with fishing during a closed time. At issue during the trial was the requirement for notice of a regulation to all persons likely to be affected by it as required by section 11(2)(b) of the Statutory Instruments Act.

At trial, the trial judge found that the communal licence issued by the fisherman’s Band pursuant to the Aboriginal Communal Fishing Regulations was a statutory instrument for the following reason:

This particular communal licence is much more than a simple permit to do something subject to when, where and how regulations. This particular document is a complete document, which not only says who can do what, it also contains in great detail how, were and when certain individuals can fish for fish or shell fish.

Since the licence was a statutory instrument, the trial judge felt bound by s. 11(2) of the Statutory Instruments Act, which prevented a conviction under the instrument unless it is proved that the Crown took reasonable steps to bring the purport of the regulation to the notice of the persons likely to be affected by it.

Upon Appeal to the Supreme Court of B.C., the court relied upon R. v. Furtney, [1991] 3 S.C.R. 89 to hold that individual licences (such as communal licences fishing licences and bingo licences) issued pursuant regulations are not statutory instruments for which notice is required. Accordingly, the acquitted was set aside and the matter was remitted back to the trial court for sentencing.

Offences - Aboriginal Communal Fishing Regulations - abuse of process

Regina v. George Houvin et al.
(6 July 2000) (B.C.C.A..) No. CA026446; 2000 BCCA 427 (Huddard J.A.)

This case was a test case involving a challenge to the Aboriginal Communal License Regulations. In June of 1998, D.F.O. opened a commercial fishery on the Fraser River which only members of certain Indian bands were allowed to participate in. The accused, all non aboriginals, participated in the fishery by way of protest and were charged with fishing during a closed time.

An application for a stay of proceeding was applied for prior to the entering a plea.

At the trial level, the court granted a stay of proceedings for the following reasons:

1. D.F.O.'s practise of issuing communal fishing licences pursuant to the Aboriginal Communal Licence Regulations was illegal because the Minister did not have the right to determine the existence of an aboriginal right as per a previous decision of Judge Thomas in R. v. Cummins (digested herein);

2. The Crown had dispensed with the law by adopting an enforcement policy which focused on one group, and exempted another group; and

3. Since this dispensation policy violated the conscience of the community such that it would genuinely be unfair and indecent to proceed, the court intervened to prevent an abuse of process.

On summary conviction appeal, Curtis J., disagreed with the finding of the trial judge that the practice of issuing aboriginal fishing licences was illegal. On the basis of the absolute discretion given to the minister under s. 7 of the Fisheries Act, the court upheld the validity of the Aboriginal Communal Licence Regulations. He also noted that the “licences do not purport to create an aboriginal right to commercial fishing. The Supreme Court of Canada has held in the Sparrow case that fishing permits are simply a matter of controlling the fishing, not of defining underlying rights.” Accordingly, he overturned the judicial stay of proceedings.

Upon further appeal to the B.C.C.A., the court upheld the summary conviction appeal.

At the appeal, the primary issue was whether or not the Minister of Fisheries could grant a licence to catch and sell fish to an aboriginal group in the absence of a legally recognized aboriginal right to do so. In upholding the right of the Minister to do so, the court applied the Gulf Trollers decision [1987 2 W.W.R. 727 (F.C.A.) to categorize the Minister’s decision to grant such licences as political decision he was entitled and authorized to make.

In argument, the Respondent also relied upon an excerpt from R. v. Marshall [No. 2], [1999] 3 S.C.R. 533 to suggest that the Aboriginal Communal Fishing Regulations do not authorize the commercial sale of fish caught pursuant to those regulations. However, the court analyzed the regulatory scheme and concluded otherwise. In doing so, it emphasized the freedom which the Minister has to regulate the fishery through the imposition of licence conditions as opposed to regulations [The ACFR provide that if there is an inconsistency between the regulations and a condition of the licence, the condition of the licence prevails].

With respect to the stay of proceeding granted by the trial judge, the court concluded that obiter comments in R. v. Cummins to the effect that the aboriginal fishery was illegal were in error. Accordingly, there was no abuse of process to support a stay of proceedings.

Editor’s note: This decision will likely be relied upon by D.F.O. to support its policy of regulating individual fisheries primarily by the use of licence conditions as opposed to regulation. See for example 1999 amendments to the Pacific Fishery Regulations.

Offences - Aboriginal Communal Fishing Regulations - Invalid to the extent that they authorize fishing for commercial purposes

Regina v. John Martin Cummins
(26 January 1998) No. 93472-01 (Surrey Prov. Ct.) (Thomas J.)

This was a test case involving a challenge to the aboriginal fishing strategy which allows aboriginal fishers to fish for commercial purposes under the Aboriginal Communal License Regulations. D.F.O. opened a fishery in the Fraser River for aboriginal commercial fishing and the accused, a non aboriginal (the Reform M.P. for Delta-South Richmond), set a net after advising D.F.O. of his intention to do so. He was then charged with fishing during a closed time.

The court found that neither D.F.O. nor the Minister of Fisheries had the right to establish or determine the aboriginal right to fish for commercial purposes. In the alternative, the court held that even if the Minister had such authority, he did not have the right to delegate authority to the chiefs of the Indian Bands to designate which members could fish. Accordingly, the court declared that the portions of the Aboriginal Communal Licence Regulations purporting to authorize a commercial fishery had no legal validity. Since these Regulations had no legal validity, the fishery in question was not lawfully open to anyone fishing for commercial purposes. Since the accused was fishing for commercial purposes, he was found guilty.

Counsel for the Accused: Chris Harvey, Q.C.

Counsel for the Crown: Unknown

Editor’s note: In the case of Regina v. George Houvin et al. (6 July 2000) (B.C.C.A..) No. CA026446; 2000 BCCA 427 the British Columbia Court of Appeal said that obiter comments in this case - to the effect that the Aboriginal Communal Fishing Regulations had no legal validity – were incorrect.

This was an application by an intervener, West Nova Fisherman’s Coalition, in the Marshall appeal to have the appeal reheard, with a stay pending appeal.

Although the application was denied, the court issued reasons clarifying portions of its earlier judgment on September 17, 1999. In particular the court said as follows:

This case involved a Mikmaq Indian who was charged with fishing with a prohibited net during a closed period and selling fish without a licence in violation of Federal fishery regulations.

The main issue in the case was whether he possessed a treaty right to sell fish so as to be exempted from compliance with regulations.

The Majority of the court interpreted the treaty so as to give the Mikmaq a right to catch and trade in fish. However, this was limited to what was necessary to supply them with necessaries. In a modern context this means the right to earn a moderate livelihood, but not the accumulation of wealth. Accordingly, this treaty right can be contained by regulation within proper limits.

With respect to justification under the test set out in R v Badger, [1996] 1 S.C.R. 771, the Court said "in light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime in the absence of some explicit guidance." (R. v. Badger). The Court reviewed s. 7 of the Fisheries Act and the regulations which the accused was charged under and held that since they contained no guidance on how the Minister should exercise his discretion with respect to treaty rights, they could not be justified under s. 35. Accordingly, the accused was acquitted.

Aboriginal Rights and Defences - Intervener Status - Practice - Intervener Status

This case involved an application by the Fisheries Council of B.C. for intervener status. The court held that since the action was essentially a "rivalry, skirmish and contest between Indian bands over where they might catch their given allocation of salmon, this is not a case where the Fisheries Council had a legitimate interest in the outcome. To allow the requested intervention would "broaden the proceeding far beyond that envisioned by the parties . . ."

Judicial Review - Order of the Minister of Fisheries increasing a total allowable catch for Turbot

This case involved a lands claims agreement between the Government of Canada and the Nunavut Inuit. Amongst other things, this agreement provided that the Government of Canada would "seek the advice of the NWMB (Nunavut Management Wildlife Board) with respect to any wildlife management decisions . . . which would affect the substance and the value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area." The agreement also provided that the Government would recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources and give special consideration to these factors when allocating commercial fishing licences.

In 1997, the Minister of Fisheries acted against the advice of the NWMB and his own assistant deputy minister in increasing the total allowable catch of turbot without securing an agreement from Greenland to reduce its share of the total allowable catch. According to the assistant deputy minister, such an increase would cause over fishing. The Minister also made some changes to the allocation of Turbot amongst the user groups.

With respect to the allocation issue, the motion's judge, Mr. Justice Campbell ruled that term "special consideration" as it occurred in the Land Claims agreement meant the Nunavut had priority in allocation decisions within their area over everyone, including Nunavik Inuit.

With respect to the decision to increase the total allowable catch, upon reviewing the Minister's authority under s. 7 of the Fisheries Act, and the principles of administrative law, the motion's judge concluded that the Minister could lose his jurisdiction if he failed to take relevant factors into consideration when making a decision. He concluded that it was incumbent upon the Minister of Fisheries to "consider" the advice and recommendations of the NWMB. The scope and meaning of what is meant by "consider" must be examined on a case by case basis. The court concluded that in light of the obligations imposed by the wording of the Land Claims Agreement, the scope of what is meant by the word "consider" is much more than simply receiving and examining advice. "Thus, consultation and consideration must mean more than simply hearing. It must include listening as well." This means that if a recommendation is not accepted by the Minister, at the very least, an explanation must be given as to why it was not accepted.

As a consequence of the Minister's failure to take into account relevant considerations, the motion's judge set aside his decision, and referred the matter back to the Minister for consideration in accordance its reasons.

1. With respect to the decision to increase the total allowable catch, the court ruled that, while the Minister of Fisheries is under an obligation to seek and consider the advice from the Nunavut, the Minister is under no obligation to accept the advice. In addition, the Minister is under no obligation to give reasons for his decisions regarding matters outside the Nunavut Settlement area. The court ruled that the motion's judge erred in his conclusion that the Minister failed to consider the advise of the NWMB.

2. With respect to the requirement that the Minister give special consideration to the principals of adjacency and economic dependence, the court ruled that the motion's judge erred in ruling that the Nunavut had priority over all other Inuit users of the resource in the area. The court also ruled that the Minister's discretion under section 7 of the Fisheries Act is limited by the Crown's obligations under the land claims agreement as implemented by the Parliament of Canada. Although a decision of a Minister cannot be set aside for failure to give reasons, it can be set aside if "in the absence of reasons it is not possible to overcome the perversity or error derived from the result or surrounding circumstances of the decision (Minister of Citizenship and Immigration v. Williams) [1997] 2 F.C. 646;673 (F.C.A.). After reviewing in detail the facts of the case, the court concluded that "in the absence of explanations or reasons for coming to that conclusion . . . [the facts] lead to a reasonable inference that the Minister either did not give special consideration to the adjacency and economic dependence principles as required by the Agreement or misconstrued these principles when allocating commercial fishing licences within Zone I"

The court varied the order of the motions Judge, to delete the requirement to act in accordance with his reasons, and upheld his requirement that the matter be referred back to the present Minister for reconsideration.

Editor's Note: This case is interesting in its attempt to reconcile its earlier decision in the Carpenter Fishing decision with the results in this case.

This case involved an application by an Aboriginal group fishing in the Thompson river system for an order suspending a D.F.O. variation order and substituting a court order providing for non possession and non retention of coho salmon in the British Columbia sport fishery. The application was attended by a number of intervenors.

The court found that the Applicant had not established an aboriginal right to fish for coho. In the alternative, the court also found that even if there was an aboriginal right to fish, it could only set aside the variation order, it could not substitute the variation order with its own order. It the variation order were set aside, it would not have the desired effect. Furthermore, the court was not satisfied, based upon the evidence presented, that the variation orders in question infringed the aboriginal right claimed.

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