By Jennifer Taylor

Why is this case a big deal?

It started with two salmon.

Now, after several years of litigation, the Nova Scotia Provincial Court in R v Martin, 2016 NSPC 14 has stayed proceedings against two Aboriginal defendants, members of the Waycobah First Nation, who were charged in 2008 with fisheries offences allegedly committed in 2007.¹ In a lengthy decision, Judge Ross imposed the stay after finding that fisheries officials failed to properly consult with Waycobah before laying charges.² This consultation-before-enforcement reasoning is interesting on its own, as it emphasizes the co-management approach to Waycobah’s fisheries.

Judge Ross’s analysis is more broadly important for meshing high-level constitutional principles about the good faith and honour of the Crown with the on-the-ground regulation of Aboriginal fisheries.

Factual and regulatory background

There was no question in this case that the defendants had the Aboriginal right to fish for food, social, and ceremonial purposes. However, there was also no question that the Crown, through the Department of Fisheries and Oceans (“DFO”), maintained the overall regulatory authority over conservation of Canadian fisheries.³ For the Waycobah First Nation, these two propositions were reconciled through licensing, and by agreement.

Waycobah held an Aboriginal Communal Fishing Licence, issued pursuant to a related agreement with DFO for the 2007-2008 season (“the Agreement”).⁴This regulatory framework came out of the federal government’s Aboriginal Fisheries Strategy, enacted after the Supreme Court’s decision in R v Sparrow.⁵ It is separate from, and without prejudice to, the ongoing treaty and Aboriginal rights negotiations happening in Nova Scotia.⁶

The defendants were charged with breaching two conditions of the Licence: they fished for salmon in Middle River when that area was closed, and they used the method of “jigging” (piercing rather than hooking the salmon) which was prohibited in all inland waters.⁷ Judge Ross accepted that conservation was the reason behind these restrictions.⁸

Both defendants had clearly committed the actus reus of the regulatory offences.⁹ However, they alleged that the licensing regime unjustifiably infringed their Aboriginal rights.

Reaching the Agreement – Good faith consultation plus constitutional principles

Recall that Sparrow established a two-part test for courts confronted with these issues: (1) Does the legislation / regulation interfere with an existing Aboriginal right? (2) If there is a prima facie infringement, is it justified? The government’s burden of proof on justification requires it to show that (a) there is a sufficiently compelling objective, and (b) “the honour of the Crown has been maintained.”¹⁰

The Supreme Court in Sparrow held that conservation would be a sufficiently compelling objective to justify interfering with existing fishing rights protected under section 35(1). But otherwise, according to Sparrow, Aboriginal fishing for food, social, and ceremonial purposes should be given regulatory priority.¹¹

This is where the Agreement between Waycobah and DFO came up against the constitutional analysis from Sparrow and other cases. The Agreement was explicitly “without prejudice” to the future development of Aboriginal and treaty rights,¹² and as an interim measure could not infringe already-established rights.

On the Sparrow test, the Crown acknowledged that the Licence prima facie infringed the defendants’ right to fish for food, social, and ceremonial purposes, but argued that the Agreement itself was “sufficient justification for the infringement.”¹³  Following the Crown’s approach, there would be no need to apply a full Sparrow justification analysis.

The defence, on the other hand, argued that the Agreement was only “another piece of evidence” in the Sparrow analysis and did not do much to alleviate the Crown’s burden on justification.¹⁴

Judge Ross took the middle ground, merging parts of Sparrow with the contract law concept of good faith: “In the conduct of negotiations with an aboriginal entity there should be an enhanced duty of good faith upon the government as a contracting party. This accords with well-established aboriginal law principles.”¹⁵

Good faith will be presumed; it will be up to the Aboriginal defendant / community to prove bad faith, on Judge Ross’s approach:¹⁶

1. There should be a presumption of good faith dealing by the Crown (government) where the parties have entered into a signed agreement.
2. The aboriginal entity (here the Defence) should have an onus to prove on a balance of probabilities that the Crown did not act in good faith
3. Before the court embarks on an extensive examination of this issue, the Defence must show that its argument has an air of reality, a threshold test which it must initially meet.

Applied to the facts of this case, the Agreement was “presumed to fulfill the justification requirement unless Defence [could] prove that the Crown failed to act in good faith.”¹⁷ The defendants did not prove this. So the Crown met its contractual duty of good faith, and the existence of the Agreement itself “presumptively justified” the interference with the defendants’ fishing rights.¹⁸

Judge Ross then conducted an alternative justification analysis under Sparrow. As part of that analysis, he considered the Crown’s well-known duty to consult and accommodate Aboriginal groups whose rights could be adversely affected by proposed Crown conduct. He concluded that “this duty was met.”¹⁹

Although the Agreement was only for one fishing season, similar agreements had been in place for years. The Court noted that DFO had continuously engaged with Waycobah on conservation and other matters, and that Waycobah could have refused to sign any of the annual agreements if it was dissatisfied.²⁰

On either analysis, then, Waycobah’s Communal Fishing Licence was binding on the defendants and a justifiable limitation on their fishing rights.²¹

Implementing the Agreement – Good faith consultation prior to enforcement

Although the Crown fulfilled its duty to consult with the community before the Agreement was concluded, it failed to properly consult during the lifetime of the Agreement, on the particular issue of enforcement – i.e., regarding if and when DFO officials would lay charges for breaches of the Licence issued pursuant to the Agreement.²²

Judge Ross based these findings on DFO’s 1993 Policy for the Management of Aboriginal Fishing, which “contained an undertaking to consult with any relevant ‘aboriginal fishing authority’ [here, Waycobah itself] whenever DFO took enforcement action.”²³ This requirement made sense “in the context of a co-management approach,” where DFO and Waycobah were working together to manage the Band’s fisheries participation.²⁴

Good faith played a role here too:²⁵

…in the context of an agreement between governmental and aboriginal agencies, good faith is owed in the implementation of such agreement. The laying of charges is not specifically addressed or authorized in the subject AFS Agreement, but such enforcement measures do seem to be inextricably linked to the performance (or non-performance if you will) of the subject Agreement. 

The “representation” that DFO would “consult whenever enforcement action was taken” continued to bind the Crown even though it was not explicitly addressed in that year’s Agreement.²⁶ This representation therefore “qualifie[d] the charging discretion of fisheries officers as agents of the Crown.”²⁷

Taken together: “The Policy and subject Agreement combined to require… ‘enforcement consultation’ where practicable.”²⁸

And there was insufficient “enforcement consultation” on the facts. The defendants were apprehended on October 10, 2007, when DFO officials seized their fishing gear. However, they were not charged until August 6, 2008.²⁹

As Judge Ross noted, that left plenty of time for enforcement consultation to occur, and yet none happened: “there [was] no evidence of actual consultation about laying charges.”³⁰ This did not meet the Crown’s duty of good faith:

[234] The 1993 policy, in the context of the good faith requirement which informs all dealings between governments and aboriginal peoples, requires that the Crown show that there was consultation before and/or after the enforcement actions, and if there was not, to justify the omission by showing that doing so would have compromised enforcement. In a given case the Crown may show this by direct evidence; in some cases it may emerge by inference. Using the facts of this case, I would infer that the seizure of the jigs and salmon had to be done without delay. But no such inference can be made in respect to laying a charge, an enforcement measure which was undertaken many months after the offences were committed. There is no evidence that consultation in the post-seizure / pre-charge period would have rendered any of the enforcement measures less effective.

As a result of the lack of enforcement consultation, Judge Ross stayed the charges against both defendants.³¹

Conclusion

Judge Ross noted at one point that the Crown should “not act paternalistically” when contracting with an Aboriginal community.³²

The corollary of this comment is that, for a true co-management approach under an Aboriginal Fishing Strategy Agreement, both sets of managers should be on the same page regarding enforcement of the licence. It was not a good faith exercise of the Crown’s duties when its agents charged the defendants without consulting with Waycobah first. The Agreement, and the honour of the Crown, required more.

¹ The decision was on reserve for almost three years.
² For another recent post on the Waycobah First Nation’s fisheries, please see: http://canliiconnects.org/en/summaries/40067
³ Paras 22-23, 29. And see generally R v Sparrow, [1990] 1 SCR 1075.
⁴ Para 59.
⁵ Para 44.
⁶ See paras 33-34. See also the Office of Aboriginal Affairs page on Negotiations.
⁷ Paras 1-2, 191, 242.
⁸ Para 242.
⁹ Paras 55, 243, 247.
¹⁰ Para 51.
¹¹ Para 40.
¹² Para 178.
¹³ Para 54.
¹⁴ Para 127(i).
¹⁵ Para 140. See also para 127(iii). Outside of the Aboriginal law context, compare Bhasin v Hrynew, 2014 SCC 71.
¹⁶ Para 145.
¹⁷ Para 127(iii).
¹⁸ Paras 143, 166.
¹⁹ Para 163.
²⁰ Para 165.
²¹ Para 167.
²² Para 153.
²³ Para 196. See also paras 208-218; 245-249.
²⁴ Para 247.
²⁵ Para 200. See also para 247.
²⁶ Para 217.
²⁷ Para 220.
²⁸ Para 222; emphasis added.
²⁹ Paras 226-227.
³⁰ Para 229.
³¹ Para 249.
³² Para 131.