Neskonlith Band v. Canada ( Attorney General )
T-1497-97
MacKay J.
22/9/97
21 pp.
Judicial review of variation orders pertaining to sport fishing limits for coho salmon in British Columbia waters-Variation orders increasing size of fish to be retained by licence holders; limiting daily, seasonal catch of coho by licence holders; prohibiting sport fishing of coho in certain areas at certain times-Applicants submitting variation orders not taking account of their Aboriginal right to fish coho salmon-Claiming Aboriginal right to fish coho salmon for food, social, ceremonial purposes in, around Shuswap Lakes Basin from time immemorial-In recognition of need for conservation of coho stocks in rivers in question, Department of Fisheries and Oceans (DFO) devising conservation plan in consultation with all interested parties, including applicants-Plan banned all commercial fishing for coho-Reduced from previous years overall goal for total fishing of coho-Applicants submitting allocation of substantial quota, even if substantially reduced from previous years, for sports fishing, when applicants' needs in exercise of Aboriginal rights not met, unjustified infringement upon Aboriginal rights-Applicants estimating Constitution Act, 1982, s. 35 entitlement to coho salmon at 2,300-For three Bands communal licence limiting maximum harvest of coho in rivers at issue to 85 fish-Two key issues: (1) whether Aboriginal right established; (2) if so, whether unjustifiably infringed by variation orders; two subordinate issues: (i) nature of proceedings; (ii) Court's authority to issue certain of orders sought-(i) Respondent submitting judicial review inappropriate to establish Aboriginal rights claimed to be protected under s. 35-Submitting procedure not adequately providing opportunity for expert evidence, and inherent limitations of affidavit evidence restricting opportunity, of all parties, to establish factual basis necessary for dealing with constitutional issues-Nature of proceedings, inherent limitations, may create difficulties, but applicants seeking expeditious process to question decisions of government perceived as infringing upon important rights should not be precluded from initiating proceedings for judicial review-(ii) Court's authority to order what is to be done limited by Federal Court Act, s. 18.1(3)-Court may grant declaratory relief sought, or set aside variation orders and refer matter back for reconsideration-No authority to impose or to direct particular conservation measures-(1) Test for Aboriginal right protected by s. 35(1): must be activity that is element of practice, custom or tradition integral to distinctive culture of Aboriginal group claiming right-Must be shown to have been exercised prior to contact of group with white people, and exercised with continuity since then-Evidence adduced in support of applicants' claim provided by elder, former chief-Not relating to practices antedating contact with white people -Evidence not establishing right claimed as Aboriginal right to be protected under s. 35(1)-More required than beliefs, without reference to some factual circumstances underlying beliefs to meet requirements of proof-Lack of contradictory evidence offered by respondent irrelevant-While other cases establishing general Aboriginal right to fish for purposes here claimed, Aboriginal rights adjudicated on specific, not general basis-Communal licence another part of conservation plan-While specific number uncertain, more than 85 fish authorized by communal licence required to meet applicants' traditional needs-Two defects in claim variation orders unjustifiably infringing upon traditional right-(a) British Columbia Sport Fishing Regulations, 1996 basic authorization for sports, recreational fishing, not variation orders-If variation orders set aside, prior arrangements applicable in 1996 in effect, authorizing greater sport fishing harvest than permitted under 1997 plan-(b) For applicants' claim of infringement to be accepted, must accept allowing any sport fishery must adversely affect Thompson River coho-Plan adopted by DFO will not adversely affect Thompson River coho-DFO officials charged with responsibility for developing, monitoring 1997 plan for coho salmon not believing plan will adversely affect coho returning to Thompson River system-Plan adopted only after consultation with all interested parties-Applicants' principal objective presented for consideration by Minister, rejected by him in adoption of plan-No question raised about exercise of Minister's discretion in adopting plan-Highest harvesting priority given to Aboriginal right to fish, after conservation of wild coho population-Thus DFO acknowledging responsibility-No evidence DFO would unreasonably restrict fishing for food, social, recreational purposes-Evidence not establishing applicants' right to fish coho in Salmon, Eagle, Adams, Thompson rivers Aboriginal right-(2) Variation orders not infringing upon traditional right so claimed-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(3) (as am. by S.C. 1990, c. 8, s. 5)-British Columbia Sport Fishing Regulations, 1996, SOR/96-137.