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.