R. v. Quipp, 2010 BCCA 389

British Columbia Court of Appeal, August 27, 2010

Available at: http://www.canlii.org/en/bc/bcca/doc/2010/2010bcca389/2010bcca389.html (CanLii)

The applicants, Mr. Quipp Jr., Ms. Quipp and Mr. Quipp Sr., sought leave to appeal the decisions of the British Columbia Supreme Court dismissing their appeals from convictions under s. 78 of the Fisheries Act.

The Department of Fisheries and Oceans (“DFO”) develops an annual plan for salmon fishing in the Fraser River. This fishery is shared by 93 Aboriginal groups as well as commercial and recreational fishermen. The DFO forecasts the expected number of migrating fish, sets escapement goals, and sets quotas and dates allocating fishing entitlements to the various fisheries. In 1999, the DFO vastly overestimated the global run of salmon in the Fraser River. As a result, the DFO was required to reduce the allotments for each fishery and eventually, the fishery was closed altogether. The recreational fishery received three days notice of the DFO’s intention to close the fishery. The applicants, all registered Indians under the Indian Act, ignored the closure of the fishery and continued to fish.

At their respective trials, the applicants admitted the elements of the offences and the Crown admitted that it had infringed their constitutional right to fish for FSC purposes. The Crown argued that the infringements were justified. The applicants were convicted at trial and appealed to the Supreme Court of British Columbia.

The main issue at the Supreme Court was whether the requirement to prioritize the FSC fishery included a right to priority in time. The applicants argued that the DFO failed to honour its duty to prioritize the FSC because the recreational fisheries remained open for three days after the announced downgrade, and non-retention recreational fishing continued thereafter. Mr. Quipp Sr. also argued that he had not been given priority in the Summer salmon run because the commercial and recreational fisheries had been granted access to the Summer run before Aboriginal fishers had received their allotments. The appeal judge held that the pre-season allotments gave sufficient priority to Aboriginal fisheries and that Aboriginal fishing rights did not include a right of priority in time.

The applicants sought leave to appeal this decision to the British Columbia Court of Appeal on the basis that the judge erred in failing to recognize that when fish stocks are insufficient to meet Aboriginal needs, the Aboriginal FSC fishery must be granted exclusive rights to fish before other fisheries. More specifically, the applicants argue that the decision of the appeal judge perpetuates the error made in R. v. Douglas which mistakenly applied the commercial priority test from R. v. Gladstone to Aboriginal FSC fishing rights. The applicants argue that Aboriginal FSC fishing rights have an exclusive priority in time that is not recognized in the commercial context.

The British Columbia Court of Appeal was satisfied that there is confusion in the jurisprudence as to the nature of the priority accorded to the Aboriginal FSC fishery and whether such priority necessarily includes priority in time. Leave to appeal was granted.