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, [1980] 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: [2007] S.C.C.A. 352