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).
Infringement
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 [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).