Native Council of Nova Scotia v. Canada (Attorney General)

In Aboriginal Rights/Defences, Fish Cases on (Updated )

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.