In R. v. Douglas et al, four members of the Cheam First Nation who had been convicted of fishing without a licence by the Provincial Court of British Columbia and who were subsequently acquitted on summary conviction appeal, had their convictions upheld recently by the BC Court of Appeal.
The decision turned on whether the infringement of the band members’ aboriginal rights to fish for food, social and ceremonial purposes was justified according to the test set out by the Supreme Court of Canada in Sparrow. The Crown acknowledged that the regulations pursuant to which the band members were charged did constitute an infringement of their rights, but argued that the infringement was justified. The band members claimed that the infringement was not justified as the Crown had not properly consulted them and had not given priority to their fishing rights. The dispute in this case related principally to the harvest of Early Stuart sockeye, a salmon stock group that is highly prized by the Cheam First Nation.
1. THE FACTS
The ancestral lands of the Cheam First Nation are situated along the Lower Fraser River in British Columbia. Since the Sparrow decision in 1992, the federal Department of Fisheries and Oceans (DFO) has consulted the 93 Aboriginal groups which have fishing rights along the Fraser River regarding the salmon fishery. These communities account for about 30,000 Aboriginal people.
In 2000, the DFO informed the Cheam First Nation that meetings would be held jointly with other First Nations to develop a fishing plan for that summer, including a pre-season forecast and an escapement strategy and allocation of the catch between sectors. Although the Cheam First Nation did not respond to the Department’s repeated invitations to join such consultations, the DFO informed the Cheam of the results of its meetings with the other First Nations and even proposed to hold separate bilateral meetings with the Cheam so that they could express their concerns. The Cheam First Nation instead informed the DFO that it objected to the quotas set in the fishing plan and that its members would exercise their traditional fishing rights in accordance with the band council’s decisions.
The fishing plan developed by the DFO for 2000 provided that the salmon harvest would be allocated in the following order: 1) to the escapement goal; 2) for ceremonial purposes; 3) among the Aboriginal communities of the Fraser River Basin; and 4) to other groups, including commercial and sports fishers.
In the summer of 2000, following adoption of the plan, the DFO, observing that stocks of Early Stuart sockeye were larger than forecast, decided to open a short marine sport fishery which the DFO estimated would result in a catch of less than 400 to 500 salmon. Ultimately, the catch was 200.
According to the Cheam First Nation this decision was made without consulting the band and failed to give the required priority to the band’s aboriginal fishing rights.
2. THE DECISION OF THE BC COURT OF APPEAL
The BC Court of Appeal decided to restore the convictions of the members of the Cheam First Nation, expressing the opinion that the DFO had fulfilled its duty to consult and given the requisite priority to aboriginal fishing rights for food, social and ceremonial purposes.
The Court recognized that the DFO carried out meaningful consultations with the First Nations concerned regarding the conservation objectives. In view of the special characteristics of the Fraser River salmon fishery, the number of Aboriginal communities to be consulted and the differences of opinion between those communities, the Court ruled that the DFO’s decision to consult all the bands jointly was reasonable and appropriate. The Court remarked that the DFO had provided the necessary information and technical resources, as well as opportunities for the bands to express their concerns. Without saying as much, the Court implied that the DFO accommodated the bands by modifying certain elements of its plan in response to their concerns.
The Court also noted favourably that, when faced with the refusal of the Cheam First Nation to participate in joint consultations with the other First Nations, the DFO attempted to organize separate bilateral meetings, and that in the circumstances those efforts were reasonable and in good faith.
The Court thus rejected the finding by the appeal judge in the BC Supreme Court that the failure to consult regarding the opening of the sport fishery was a fatal flaw in the consultation process. According to the Court of Appeal, once the DFO had consulted the aboriginal communities on its initial fishing plan, it was not obliged to consult them again on the decision to open a sport fishery, as the changes made were consistent with the pre-established strategy. In fact, the Court observed that even if the sport fishery had breached the fishing plan, no additional consultation would have been necessary, as the sport fishery did not have an adverse effect on the aboriginal rights of the First Nations.
Finally, the Court found it illogical to conclude that the DFO failed to conduct adequate consultations with the Cheam First Nation on a minor matter, when the Cheam had failed to respond to repeated requests by the DFO to consult on the major issues.
In considering the issue of priority, the Court of Appeal did not rely on Sparrow, in which the priority test was applied rather strictly; instead it referred to Gladstone, which states that “(…) priority under Sparrow’s justification test cannot be assessed against a precise standard but must rather be assessed in each case to determine whether the government has acted in a fashion which reflects that it has truly taken into account the existence of aboriginal rights.” The Court also referred to R. v. Nikal, in which the Supreme Court of Canada ruled that the actions of government must be assessed against the standard of reasonableness.
The Court of Appeal further pointed out that the First Nations had caught 206,000 Early Stuart sockeye, or virtually all the harvest that was available after the escapement goal had been established. The Court also held that the Cheam First Nation’s claim that its food requirements had not been satisfied had to be appraised against the fact that the Cheam had refused to communicate their needs in concrete terms in response to DFO’s request that they do so.
The Court also rejected the arguments of the accused to the effect that the Crown did not respect the priority principle by allowing non-Aboriginals to fish before the fishery opened for ceremonial purposes, finding that the non-aboriginal fishery had not been opened in the absence or to the exclusion of the aboriginal fishery. In fact, the evidence showed that, by the time the sport fishery was opened, the Lower Fraser First Nations were approaching their allocated share of the harvest. The Court pointed out that priority does not mean that aboriginal fishing rights must always precede or occur contemporaneously with non-aboriginal fisheries. Where circumstances permit, non-Aboriginal people may fish before Aboriginal people.
3. WHAT CAN WE LEARN FROM THIS DECISION?
Four elements emerge from this decision:
- Aboriginal communities must participate in consultations and respond to requests from the Crown. Refusal to participate will considerably weaken any allegation that the Crown has not fulfilled its duty to consult.
- Governments do not have to conduct separate consultations with each of the aboriginal communities concerned by a plan or action they intend to implement. Governments may choose to consult aboriginal communities jointly where circumstances justify.
- Governments do not have to consult aboriginal groups on new elements that emerge in the course of the project if such new elements are consistent with decisions made in the initial consultation.
- On the question of priority, the British Columbia Court of Appeal favours the more flexible approach of Gladstone, which permits adjustments to take account of individual circumstances.
In view of the very specific facts of the Douglas case, it nevertheless remains to be seen how the courts will apply the priority test in other circumstances and how they will gauge the failure to consult when new elements that come to light could affect the results of previous consultations.