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.