http://www.courts.gov.bc.ca/jdb-txt/sc/90/09/S90-0998.htm

Both appellants were tried separately but, by agreement, the evidence in the first trial was taken as evidence in the second trial. Both have appealed their convictions by His Honour Judge Skelhorne P.C.J. of the offence of fishing without any licence or permit (section 4(1), British Columbia Fishery (General) Regulations) on the 27th day of June, 1989.

The grounds for appeal in each case are as follows:

a)that the learned trial judge erred in failing to give due consideration, or to consider at all, the evidence concerning the effects of the closure of the traditional fishery of the accused and of the licensing requirements and conditions applied to the accused;

b)that the learned trial judge erred in finding that the closure of the traditional fishery of the accused and the licensing conditions did not infringe the constitutionally protected Treaty rights of the accused to carry on fisheries as formerly;

c)that the learned trial judge erred in finding that the closure of the traditional fishery of the accused and the licensing conditions were reasonable and valid conservation measures, in relation particularly to the exercise of Treaty rights by the accused;

d)that the learned trial judge erred in failing to give consideration to the question of whether the constitutionally protected Treaty rights of the accused were accorded priority over the interests of other fishery user groups at the time and place of the offence alleged.

Briefs filed on behalf of both the Crown and the appellants contain an outline of the facts. Mr. Hall, on behalf of the Crown, took no issue with the statement of facts set out in the appellants' brief subject to one or two reservations on his part and consequently I set out the statements in full, save and except for the first two paragraphs which essentially refer to the matters mentioned above:

3.Both Appellants are members of the Tsawout Indian Band and resident on the Tsawout Indian Reserve, located at Saanichton Bay on the Saanich Peninsula. Members of the appellants' forebears are Saanich Indians and have resided on the Saanich Peninsula and around Saanichton Bay since time immemorial, and were resident in that area at the time of the making of the Treaty between James Douglas and the Saanich Indians in 1852.

4.It was agreed by counsel that the applicable treaty was that considered and described in Claxton et al v. Saanichton Marina Ltd. et al (1989), 36 B.C.L.R. (2d) 79 (B.C.C.A.).

5.The Appellants, and the Tsawout generally, fish for salmon in tidal waters in a seasonal cycle, in order to obtain and preserve sufficient quantities to last the winter and into the spring of the following year. They commence fishing for Chinook salmon, also known as Spring salmon, as early as April or May of each year. Spring salmon are the earliest salmon running and are often eaten fresh.

6.The Tsawout have traditionally been reliant upon the tidal fishery, having no local river fishery. Chinook salmon, as all salmon, have a special importance to the Tsawout both as a food source and for ceremonial purposes.

7.The Tsawout (and Saanich generally) have historically relied upon five fishing locations for Spring salmon:

a)the South end of Sidney Island;

b)the North end of Sidney Island;

c)the East side of James Island;

d)Cordova Spit; and

e)Coal Island.

8.Coal Island is about five miles from Saanichton Bay. The Appellants were both actively fishing in that area on August 8, 1988, and held neither licence nor permit to do so, relying upon their Treaty rights.

9.Both of the Appellants were fishing for food for themselves and their families. Salmon stocks, including Chinook, have been declining in recent years, and it has become more difficult for the Appellants to catch salmon in the usual Tsawout fisheries. In recent years, the Appellants have been unable to catch sufficient salmon to satisfy their food and ceremonial needs.

10.At the time, the Coal Island area was an area targeted by the Department of Fisheries and Oceans ("D.F.O.) for "spot closure", and was closed to salmon fishing. That closure was pursuant to the British Columbia Sport Fishing Regulations, and was for the periods May 15th to 31st and August 1st to 31st annually, commencing in 1986. Indians fishing under food fish licences are specifically exempted from the operation of those regulations.

11.Local officers of the D.F.O., not by Regulation but rather under the direction of senior management, incorporate those sport fishing closures into all Indian Food Fish licences issued by making compliance with those closures a condition of the licence itself.

12.In fact, local D.F.O. officers apparently often will not take steps to enforce the permit requirement for Indian fishermen unless it is for the purpose of enforcing the sport fishing closures.

13.The sport fishing closure at Coal Island is referred to as a "conservation closure", because that area is recognized as a deep water location favoured by salmon, and in particular Chinook, as a resting location on migrations. The closure was not a response to the Indian fishery in that area, however, where the largest number of fishermen were sport fishermen.

14.The Chinook stocks have been reduced in recent years. The D.F.O., by policy, determined to reduce the overall Chinook catch in 1988 by 20%, that harvest reduction to be borne equally by all user groups, including Treaty Indian fishermen. The only priority to be accorded to the Indian fishery would be in the event of a total ban on fishing.

15.The D.F.O. receives numerous complaints from sport fishermen concerning Indian fishermen fishing in areas closed to the sport fishery.

16.At the time of the offences alleged herein, the commercial fishery for Chinook salmon was ongoing, as was the sport fishery. The D.F.O. collects catch statistics for the Chinook harvest. In 1988, the commercial fishery in the Gulf of Georgia took approximately 31,000 Chinook, while the sport fishery in that same area took in excess of 100,000 Chinook. The Saanich Indians, including the Tsawout, as well as the Songhees and Esquimault in the Victoria area, harvested from 200 to 300 Chinook salmon, approximately. The entire Indian fishery in the whole of the Gulf of Georgia caught under 3,000 Chinook.

17.At trial, counsel for the Appellants took the position that the Coal Island closure, in its application to the Appellants, was inconsistent with the Appellants' Treaty right to carry on their fisheries as formerly as protected by section 35 of the Constitution Act, 1982, and was therefore unconstitutional by virtue of section 52 of that Act. Notices under the Constitutional Question Act (B.C.) were served upon the Federal and Provincial Crown.

The Treaty referred to in paragraph 4, is set out in the Claxton case at p.81:

Know all men that we Chiefs and people of the Sanitch Tribe, who have signed our names and made our "marks" to the Deed on the 11th day of February, 1852, do covenant to surrender entirely and forever, to James Douglas the agent of the Hudsons Bay Company, in Vancouver's Island, that is to say for the Governor, Deputy Governor and Committee of the same, the whole of the land situate and lying as follows: vizt commencing at Cowitchan Head and following the coast of the Canal de Arro northwest nearly to Sanitch Point or Qua-na-sung from thence following the course of the Sanitch Arm to the point where it terminates and from thence by a straight line across country to said Cowitchan Head the point of commencement; so as to include all the country and lands, with the exceptions hereafter named, within those boundaries -

The condition of our understanding of this sale is that our village sites and enclosed fields are to be kept for own use, for the use of our children, and for those who may follow after us, and the land shall be properly surveyed hereafter; it is understood however that the land itself with these small exceptions, becomes the entire property of the white people forever, it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly. We have received, as payment ...

I point out that the trial judge did not make any of the findings of fact set out above. I quote from portions of his short oral judgment:

The treaty of course exists and is upheld by section 35, and the treaty rights are subject to regulation by law, and of course the regulations can cover reasonable plans for conservation. Mr. Claxton - - although he had I think the right idea for what the treaty right gave (and to some degree Mr. Joseph) - - talked rather vaguely about managing the resource. I do not think that a treaty ever gave ownership of fish in an area to anyone. And of course we now, I think, deal with them as the fish vested in the Crown, and so because of that, all users have to be considered, even though the treaty is there and we take it that parliament knows the treaty exists.

... What this is about is that the treaty, and those fishing under it, are still subject to allowing the fish to survive and that is what the conservation is about and that is what this deep pool is all about at Coal Island.

... The law is that all of this is subject to a regulatory conservation scheme and the fish are not being given to others in a way to unfairly reduce the number of fish to the Indians. It is a scheme which, on the face of it when it was conceived at least, and at the time these people were fishing without their licences, was a reasonable and valid scheme. It may not be a nice one, now that we look at it, but that is really not what we have to decide here. We only have to decide as to whether their treaty rights are subject to regulations to conserve the fish, and I do not think it was ever intended that fishing the way they always have could be allowed to encroach upon that almost final pool of chinook, which is so critical to the survival of the species.

... these permits, they are not interfering with the Indian's rights to fish. What they are doing is saying fish here and not there. And that, although it is not perhaps what was envisioned in Governor Douglas' day, is still valid under the law as it is now because it is conservation regulation.

Basically I think the trial judge held that the licensing conditions involving the closure of the traditional Indian fishing grounds did not infringe the treaty rights of the Indian as it was a reasonable and valid conservation measure. Since the appellants and the Crown are agreed on the facts I have recited I will, for purposes of this appeal, treat them as though they were findings of fact by the trial judge.

As to Mr. Hall's reservations, he points out that the transcript of the evidence shows that the Department did have discussions with the Indians as to their fish food requirements. He also notes, with respect to paragraph 9, reciting that the appellants have been unable to catch sufficient salmon to satisfy their food and ceremonial needs, that no numbers were given in evidence. He conceded, however, that the statement was a fair comment. I take that to mean he accepts that the statement is generally true but is lacking in specifics.

Succinctly put, the appellants' position is that since the closure applied to all categories equally, Indians, sports and commercial fishing, the regulations failed to accord the Indian his treaty rights. That being so the requirement that the Indian be in possession of an Indian fish food licence, which provides for such closure, is invalid and therefore not required.

The Crown's position, on the other hand, is set out in the concluding paragraph of Mr. Hall's brief:

In conclusion, it is respectfully submitted that in both logic and law, a treaty right as protected by the Charter is the right as modified by regulation on March 31, 1982, namely the "existing right". This is a right subject to valid regulation. The requirement to refrain from fishing in an area closed for purposes of conservation is such a regulation.

A helpful discussion of the background and the terms of the Treaty, the effect of the Treaty, and the nature of Indian Treaty rights, as determined by case law, is found at pages 81 - 90 of Claxton. That being so, it is not necessary for me to canvass all of those subjects in detail inasmuch as the words of the treaty upon which that appeal turned are the same in the appeal before me:

... we are at liberty ... to carry on our fisheries as formerly.

In that case, Saanichton Marina Ltd. proposed to build a marina adjacent to certain other property it owned on Saanichton Bay, on Vancouver Island. The Tsawout Indian Band opposed the construction because it would interfere with their right of fishery granted by the 1852 Treaty as set out above.

At p. 92, Hinkson J.A. stated:

In my opinion, construction of the marina will derogate from the right of the Indians to carry on their fisheries as formerly in the area of Saanichton Bay which is protected by the treaty. To begin with it will limit and impede their right of access to an important area of the bay. Further, they will not be able to carry on the stationary crab fishery as formerly, indeed with the loss of the eel grass, that part of the fishery will be destroyed in the area to be dredged. Construction will also disrupt other parts of the fishery in that area as well. The development that has already occurred around the bay has not had such a serious effect on the fishery. This development, while of only a small area of the bay, will have a harmful impact on the right of fishery granted to the Indians by the treaty.

I conclude the protection afforded to the Indians by the treaty provides them with a basis for objecting to the development of the proposed marina and that their objection should be sustained.

In his review of the case law, Hinkson J.A. stated, at p. 88:

It will be seen that the Supreme Court of Canada has not undertaken any definition of rights conferred upon Indians by treaty. That court has recognized the rights are unique, and that they confer additional protection on the Indians. Beyond that point the court has not attempted to define the nature and extent of such rights.

At p. 90:

... I conclude that the right granted to the Indians by treaty is unique in the sense that it is difficult to describe it within the framework of traditional legal terminology. While the right does not amount to a proprietary interest in the sea bed nor a contractual right to a fishing ground, it does protect the Indians against infringement of their right to carry on the fishery, as they have done for centuries, in the shelter of Saanichton Bay.

and:

... I conclude the effect of the treaty is to afford to the Indians an independent source of protection of their right to carry on their fisheries as formerly.

At p. 85, Hinkson J.A. referred to R v. Fowler, [1980] 2 S.C.R. 213, 5 W.W.R. 511, 53 C.C.C. (2d) 97, 9 C.E.L.R. 115, 113 D.L.R. (3d) 513, 32 N.R. 230 [B.C.], a decision of the Supreme Court of Canada in which reference to the meaning of the word "fishery" was made by Martland J. After reviewing the definitions, Hinkson J.A. concluded, at page 85:

On the basis of these authorities it is clear that the word "fishery" may be used to denote not only the right to catch fish but also the place where the right can be exercised. The Indians do not claim in this case any proprietary interest in the sea bed of the bay or a right, contractual or otherwise, to a fishing ground in the bay. The sui generis right they claim is to carry on the fishery as formerly in the bay.

As to aboriginal rights to fish (as opposed to rights granted by treaty as in this case), a lengthy analysis is to be found in Ronald Edward Sparrow v. Her Majesty the Queen, a decision of the Supreme Court of Canada, Number 20311, dated May 31, 1990. Reasons for judgment were co-authored by Chief Justice Dickson and Mr. Justice La Forest and were concurred in by the other sitting members of the Court.

The question before me involves a consideration of whether the closure and the licensing conditions were reasonable and valid conservation measures in relation to the treaty and whether these treaty rights were accorded priority over the interests of other fishery user groups at the time and place of the offence alleged.

As to aboriginal rights, it was stated this way in Sparrow at p.31:

The constitutional nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing. If the objective pertained to conservation, the conservation plan would be scrutinized to assess priorities. While the detailed allocations of maritime resources is a task that must be left to those having expertise in the area, the Indians' food requirements must be met first when that allocation is established. The significance of giving the aboriginal right to fish for food top priority can be described as follows. If, in a given year, conservation needs required a reduction in number of fish to be caught such that the number equalled the number required for food by the Indians, then all the fish available after conservation would go to the Indians according to the constitutional nature of their fishing right. If, more realistically, there were still fish after the Indian food requirements were met, then the brunt of conservation measures would be borne by the practices of sport fishing and commercial fishing.

The foregoing applies as well to treaty fishing rights.

The following evidence given at trial in the appeals before me with respect to regulating the Chinook fishery comes from the testimony of Ronald Dean Kehl, a fishery officer. Once again, I quote from the brief of the appellants:

53....

"Last year there were steps taken that all user groups would share in reducing their catches of chinook salmon by 20 per cent at least, was the target."

54.Q.You were aiming at a -- the Department was aiming at a 20 percent reduction in chinook catch by all user groups, including commercial, sport and the Indian fishery, is that right?

A. That's right.

55.Q.All right. Well, tell me this though, if you recognize that the chinook catch -- the chinook harvest in recent years has been declining across all user groups, and the Department has a policy of affording the Indian fishery a priority above that of the sports and commercial fishery, why, rather than attempting to reduce the Indian catch by 20 percent as with the sports and commercial fisheries, that targeting is not applied more to the commercial and sports fishery?

A.Well, the Minister has made it clear that he wants all user groups to share in conservation to rebuild those stocks and because those stocks are protected for all people of Canada then they should all share in the protection measures, and this 20 per cent harvest rate reduction then should be shared by the three user groups.

56.Q.Well, if the Minister has determined that all user groups are to share equally in the conservation concerns, that hardly can be said to be affording a higher priority to the Indian fishery with respect to chinook locally than the other user groups, isn't that correct?

A.Well, in terms of the priorities, our priority of native fishermen above commercial and sport is that their fishing and food fish will be protected. In other words, if it requires a total closure or total ban to protect a species, then the native food fishermen sill (sic) certainly get their fish before commercial and sport fishermen. In other words, if there's a total ban on fishing, the native food fishing rights will be protected.

Q.So that's where the priority will be applied then?

A.Yes, but in a case of a harvest rate reduction of 20 percent to rebuild stocks, it was to be shared equally among all three user groups to help rebuild these stocks.

. . .

Q.Certainly it doesn't appear that the spot closure at Coal Island was directed at abuses by the Indian fishery?

A.The largest percentage of people that fish in - - did fish in any of these spot closed areas now were sport fishermen, but it was decided that it would be closed to any kind of fin fishing for all user groups.

In Sparrow, the onus of proving a prima facie infringement lies on the individual group challenging the conservation measure. The analysis, according to Sparrow, then moves to the issue of justification which is a two step process. The first is whether there is a valid legislative objective. The second is the way in which the legislative objective is to be attained:

[It] must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. (Sparrow p.26).

The foregoing applies also to treaty rights.

In Claxton v. Saanichton Marina Ltd., Hinkson J.A., at pages 84-85, indicated the approach to the interpretation of Indian treaties as follows:

In approaching the interpretation of Indian treaties the courts in Canada have developed certain principles which have been enunciated as follows:

(a) The treaty should be given a fair, large and liberal construction in favour of the Indians;

(b) Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians;

(d) Any ambiguity in wording should be interpreted as against the drafters and should not be interpreted to the prejudice of the Indians if another construction is reasonably possible.

(e) Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.

The evidence that the Indians have been unable to catch sufficient fish for their needs is vague and imprecise and, as Mr. Hall points out, lacking in specifics as to their actual requirements for food and ceremonial needs. However, the evidence shows that they harvested only 200 to 300 Chinook salmon and the entire Indian fishery in the whole of the Gulf of Georgia caught under 3,000 while the commercial fishery harvested approximately 31,000 and the sports fishery harvested in excess of 100,000.

In the face of evidence that they have been unable to catch sufficient salmon, the regulations applying a 20% reduction to all fisheries, i.e. Indian, sportsmen and commercial, does not meet the criteria referred to in Sparrow, i.e. "... the Indians' food requirements must be first met when that allocation [of maritime resources] is established." Applying the reduction equally in this case means that the brunt of conservation measures is being borne equally by sports fishing, commercial fishing and Indian food requirements, and lacks the required prior consideration of the Indians' food requirements.

At the time the trial judge in this case made his decision the Sparrow decision had not been handed down by the Supreme Court of Canada. Accordingly, the various points which I have referred to in that decision were not before him.

While the evidence of the extent of the dwindling supplies is somewhat vague and imprecise in relation to the actual requirements of the Indians, I see no reason, in view of the position of both the Crown and the appellants as to the undisputed facts, to order a new trial. I allow both appeals and direct that an acquittal be entered with respect to both appellants.

Counsel for the appellants has asked that I rule as well on whether a license to fish is required by the Indians even if a valid conservation scheme is in effect which would apply to the Indians. The position of the Indians, as exemplified by the evidence of Earl Claxton a Council member of the Tsawout Indian Band, is that the treaty is his license. Valid conservation measures which would be applicable to the Indians, do not need, for enforceability, the issuing of a license and such measures can be brought to the attention of the Indians by some form of communication.

I do not have to determine the further question propounded by appellants' counsel. That issue can properly be determined when it arises. Furthermore, it is not specified in the grounds of appeal. The grounds refer to licensing conditions and not licensing per se, as well as the failure of the trial judge to give consideration to the treaty rights of the Indians. Reference in the grounds of appeal to the "constitutionally protected" treaty rights refers to the Constitution Act, 1982. By s. 35 of the Act, existing treaty rights were recognized and affirmed:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

By section 52, any law inconsistent with the provisions of the Constitution was rendered of no force or effect:

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This appeal turned on the question of whether the conditions contained in the license were invalid and therefore no license was required and not on the bare question of whether a license is required at all.

July 13, 1990

Victoria, B.C.