R. v. Aleck Date:, 2012 BCPC 465

Citation: R. v. Aleck Date: 20121113 2012 BCPC 0465 File Nos: 50345-1; 51536-1; 51527-1; 51538-1; 51540-1; 55670-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARTHUR LOUIS ALECK and ASHLEY LEE ALECK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: F. Jensen, Q.C. Appearing on their own behalf: The Accused, A.L. Aleck Counsel for the Accused Ashley Lee Aleck : D. Birch Place of Hearing: Chilliwack , B.C. Dates of Hearing: August 25 and 29, October 28, 2009;

April 20, 21, July 19, November 8, 9, 2010; May 9, 10, June 23, September 8, 2011; March 22, 2012 Date of Judgment: November 13, 2012 [1] THE COURT: There are several Informations before me in this matter. Arthur Aleck is the sole defendant on Information Nos.51528-1, 51536-1, and 51537-1. He is jointly charged with Ashley Aleck on Information No. 50345-1. Ashley Aleck is the soledefendant on Information No. 51540-1. [2] Mr. Aleck represents himself in these proceedings. Ms. Aleck is ably represented by Mr. Birch. [3] Several pre-trial conferences were held in these proceedings. These commenced August 1st, 2008.

At that time there were otherfiles and defendants involved. [4] Evidence in relation to these matters commenced on August 25th, 2009 and has continued from time to time over a number ofdays. [5] The defendants have asserted that the legislation under which they are charged contravenes their guaranteed Aboriginal rightsto fish under s. 35(1) of the Canadian Charter of Rights and Freedoms. [6] As is the practice with regards to cases of this sort which has evolved from the decision of the Supreme Court of Canada in R.v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075, the proceedings have been conducted in stages. [7] The first two stages relating to the establishment of factual matters and the existence of Aboriginal rights are complete. Wehave now concluded evidence and arguments related to the third stage which is a determination of whether or not there has been shownto be an infringement of the Aboriginal rights in question. [8] The defendant, Arthur Aleck, is the father of the defendant, Ashley Aleck.

Both are members of the Cheam Band. [9] The Cheam Band is one of a number of constituent bands which together constitute the Sto:lo Nation. These individual bandsare located along the length of the Fraser River along its path through the Lower Mainland area of British Columbia from Langley toYale. [10] Various Sto:lo Nation bands are somewhat split in their affiliation. The evidence demonstrates that 80 bands are associated tothe Sto:lo Tribal Council; 8 of the remaining bands are associated to the Sto:lo Nations Society. There are as well a few bands that areindependent of both of these organizations.

The Cheam Band includes approximately 500 people. Of this number roughly one halfresides on the Cheam Reserve east of Chilliwack. [11] It is common ground between the parties that the members of the Cheam Band enjoy a collective Aboriginal right to fish whichincludes taking salmon from the Fraser River for food, social, and ceremonial purposes. [12] The Department of Fisheries & Oceans ("DFO") is responsible for, amongst other things, regulating the salmon fishery on theFraser River.

As such, the DFO sets openings and closings for the various types of salmon, including making regulations relating to thetype of species that may be targeted, areas open and techniques permitted. The Fraser is divided into tidal and non-tidal zones with theboundary being a bridge at Mission, B.C. The area around Chilliwack where the events giving rise to these charges occurred is a non-tidal zone. [13] The DFO is also responsible for the saltwater salmon fishery in B.C.

Because salmon are an anadromous fish, those whosuccessfully fish the ocean for salmon will necessarily intercept the fish before they return to fresh water in order to spawn. [14] Five different species of salmon journey through the Fraser. The species generally spawn at different times and each sub-raceof a species may also spawn at a different time.

These periods overlap so that more than one species of salmon may be present in theFraser at any given time. [15] This case primarily concerns Chinook or Spring salmon, which are the largest of the five species, and Sockeye salmon, whichare smaller on average. [16] The facts are not controversial on these various cases. It will nevertheless be useful to set out the basic events in order to betterappreciate the issues at this stage of the proceedings. Information No. 50345-1 [17] On July 17th, 2005, the Fraser River was closed for fishing.

This closure was intended to protect a sub-race of Sockeye salmonknown as the "Early Stuart Run".

Fisheries Officer Clift received information that day that members of the Cheam Band would beconducting a protest fishery and a notice to this effect was circulated by the Sto:lo Tribal Council. [18] This notice, a copy of which was entered as an Exhibit, indicated that the target of the protest fishery would be Chinook salmon,and purported to authorize drift and set nets from 8:00 a.m. to 8:00 p.m. [19] The DFO had previously advised the Sto:lo Tribal Council that persons caught fishing during the closure would be charged.

[ 20 ] At 11:05 a.m., both defendants were observed to be fishing. Mr. Aleck was told he would be charged if he did not pull in his net, but ignored this warning. Ms. Aleck was present with him in the boat. It is clear that she was assisting him in this endeavour. [ 21 ] The DFO had allowed a recreational fishery on the Fraser for Chinook at or about the same time period. The river had also been open for a First Nations fishery up to June 26th. Information No. 51536-1 [ 22 ] On August 5th, 2005 at 7:40 p.m., Mr. Aleck was again encountered on the river near the Agassiz Bridge by Fisheries Officer Powers.

He was with another person. On this occasion, Mr. Aleck was fishing with a drift net. [ 23 ] While fishing was permitted at this time, the only method allowed was set nets. There was a brief drift net opening as well, but not until the following morning of August 6th. [ 24 ] Mr. Aleck was clearly not in compliance therefore with the terms of the Aboriginal Communal Licence issued to the Cheam Band. Information No. 51537-1 [ 25 ] On August 25th, 2005, the river was open for set net and drift net fishing by the Cheam Band.

It was also open to sport fishing. [ 26 ] The licence for this period, which is in evidence as an Exhibit, specified a particular area and times that drift net fishing was allowed. [ 27 ] A patrol set out to ensure that the terms of the licence were being adhered to. At about 8:50 p.m., two Fisheries Officers encountered Mr. Aleck and a companion in a small aluminium boat and found them to be engaging in drift net fishing, clearly outside the hours such techniques were restricted to according to the licence. Information No. 51538-1 [ 28 ] On August 27th, 2005, at about 6:30 a.m., Mr. Aleck and Ms.

Aleck were found on the river drift net fishing in the area of Morrow's Bar by Fisheries Officer Powers. [ 29 ] There was once again an Aboriginal licence in place which authorized this technique but the opening did not commence until 8:00 a.m. that date. [ 30 ] Fisheries Officer Powers noted that Ms. Aleck was holding the net while Mr. Aleck operated the boat. When he advised the fishing did not start until 8:00 a.m., Mr. Aleck pulled the net in. It clearly held some fish. Information No. 51540-1 [ 31 ] On July 27th, 2006, Ms. Aleck was found fishing the Fraser with another person.

She was using the drift net technique. [ 32 ] It is clear from the testimony and Exhibits before me that drift net fishing was not permitted at the time Ms. Aleck was fishing, although set nets were allowed. Ms. Aleck testified that the two set net locations allocated to her family by tradition were not productive. Accordingly, she decided to use the drift net technique. [ 33 ] The evidence establishes that drift nets were permitted under the terms of an Aboriginal licence for two 12-hour periods on July 28th and 29th, 2006. [ 34 ] Ms.

Aleck chose not to wait to fish during the permitted period because there would have been a large number of other First Nations fishers competing for time and space on the river at that time. Issue [ 35 ] The narrow issue between the parties is whether, on all the evidence before me, the defendants have demonstrated a prima facie case of infringement of their Aboriginal rights. Evidence of Infringement [ 36 ] Both defendants provided testimony in this case. As well, Ernie Crey, Arnold Narcisse and Mark Point provided testimony.

To some extent, this addressed some of the fishing practices and customs of the Sto:lo people, including the Cheam Band. [ 37 ] Mr. Crey has had substantial involvement with the First Nations fishery on the Fraser River. He provided the Court with very helpful background information about the various methods employed over time by Cheam Band members and other First Nations groups abutting the Fraser. In particular, his explanations of how set net and drift net fisheries work were illuminating. [ 38 ] He noted that the fixed net method has, at least since the 1990s, gained favour with members of the Cheam Band.

This method provides more opportunity to band members to fish. As well, he provided an overview of the social and ceremonial aspects of the fishery and its central place in Sto:lo culture. He commented on some of the problems the First Nations bands have had in dealing with the DFO which, in his view, had often made unilateral decisions without any real consultations with First Nations stakeholders. [ 39 ] As to specific methods, Mr. Crey testified that drift fishing at night has the advantage of fewer anglers competing for fish.

He said that people fishing at this time might be fishing to meet family and personal needs.

[ 40 ] Generally, on the issue of infringement, Mr. Crey testified that no compensation had ever been offered by DFO in cases were closures prevented fishers from catching sufficient fish to satisfy their needs. Essentially, he stated that the DFO adopts a "tough luck" attitude in such cases. [ 41 ] In answer to questions posed by Mr. Jensen, Mr. Crey agreed that there was somewhat of a divergence of views between various Sto:lo groups about policies. The Cheam Band, which he and the defendants are members of, usually has about 15 or 16 boats using drift net techniques.

He noted an increase in the use of this technique which he attributed in part to the disappearance of traditional set net sites. He stated that the DFO usually presents a number to the Cheam Band as a non-negotiated pre-determined allotment. [ 42 ] With respect to the practices at the Cheam Reserve, Mr. Crey agreed with the suggestion by Mr. Jensen that the procedures and patterns of fishing were based on the abundance of fish. This varies from month to month and year to year according to a variety of factors.

The Cheam Band generally attempts to meet its needs in summer when more Sockeye are present. [ 43 ] It is the preference of the Band to be granted its own licence rather than be grouped with several other bands. Mr. Crey pointed to several reasons for this which relate to the local needs being more effectively addressed in a separate licence. [ 44 ] Mr. Crey testified that the July 17th, 2005 fishery was a decision of the Sto:lo Tribal Council arrived at after attempts to discuss local needs with the DFO failed. This group included the Cheam Band.

He agreed, however, that the Cheam Band has never brought a request for a specific amount of fish to DFO. [ 45 ] Mr. Crey presented as a very articulate, knowledgeable, and forthright witness. He expressed a personal preference for fishing outside of daylight hours which was entirely logical. He was not presented as and did not claim to be a representative of the Cheam Band. As such, his evidence did not, in my view, address the scope of the communal right to fish at issue here. [ 46 ] Mr. Point provided evidence that was corroborative of the testimony of Mr. Crey and the defendants.

Although he is from the Skowkale Band, he is a cousin to Mr. Aleck, and has received fish from him in the past. In this regard, he outlined the social network that fishers in the First Nations communities might typically provide for. In his case, the fish provided by Mr. Aleck have been used in ceremonies at Seabird Island School where Mr. Point was the principal for a period of time. [ 47 ] Mr. Point echoed many of Mr. Crey's observations about past practices of the DFO and remarked upon policies which appeared to favour sports anglers.

He too was a credible and forthright witness although the evidence he provided is of no assistance in determining the scope of the communal right of the Cheam Band. [ 48 ] Mr. Narcisse also presented with impressive credentials. He was the Chair or Co-chair of the B.C. Aboriginal Fisheries Commission for a total period of 14 years. Like Mr. Crey and Mr. Point, he was able to give detailed evidence about the fishery and the politics surrounding it. [ 49 ] He provided a clear outline of the social relationship between First Nations fishers and the community members who rely on them for food.

He noted that people of Mr. Aleck's age commonly have a large extended network of family members in the community who make up the bulk of the community. [ 50 ] He noted that closures by the DFO in the past led to the First Nations bearing the brunt of conservation efforts without any compensation being offered. [ 51 ] As with Mr. Crey and Mr. Point, Mr. Narcisse has impressive credentials and a great deal of knowledge about the Fraser River fishery.

While he did provide some evidence about why the right to fish was important to the First Nations in general, he too did not testify about the scope of the Cheam Band's communal right to fish. [ 52 ] Mr. Aleck testified that he has held various positions of responsibility on the Cheam Band Council. He has fished the Fraser for over 31 years.

He testified about the relationship between the Sto:lo Nation and the DFO which he characterized as difficult. [ 53 ] His perception was that sports anglers were allowed to catch Chinook in the river and ocean at times when there was no opportunity for members of the Sto:lo Nation to fish. As well, he noted that the policies of the DFO often result in the First Nations fishers not getting what they needed. Any consultation that has taken place between the DFO and Sto:lo Nation has been minimal. He says the DFO makes arbitrary decisions about closure with no or little regard for Sto:lo proposals. [ 54 ] Mr.

Aleck testified that drift net fishing became his principal method from the late 1990s onwards. He maintained that the traditional set net sites have become less productive and there are now three or four times as many people fishing the Fraser as there were in previous times. From his catch, he supplies numerous members of his extended family, including people as far away as New Mexico, U.S.A. [ 55 ] Over the summers of 2005 and 2006, Mr. Aleck testified that there were lots of Sto:lo fishers using the drift technique on the Fraser.

In these years, the set net methods were not satisfying his needs as the spots allotted his family had disappeared due to changes in the river. [ 56 ] As well, I understood his evidence to be that the fish that were captured by the set nets were generally of poor quality -- sometimes unfit for consumption. Although he agreed that the DFO did permit drift fishing from time to time in 2005, he testified that he had difficulty providing fish for his family members. [ 57 ] He indicated that he is sceptical of any conservation concerns, given the Fraser was open to sports fishers much of the time in 2005. Mr.

Aleck did not produce any specific evidence to support his last contention. [ 58 ] In response to questions put to him by Mr. Jensen in cross-examination, Mr. Aleck acknowledged that he had not been on the Cheam Band Council since 1997. It was his recollection that the Band had no fisheries committee in 2005-2006 although one had been

formed and was operative in earlier years. He further acknowledged that he had no present recollection of the openings in 2005-2006 norhow many times in total he was fishing on the river in that period, although he made an educated guess that he took advantage of everyopening. He also was unable to elaborate on his contention that he was unable to meet his needs abiding by the openings that wereallowed.

All he was able to say about this was that his needs were the same as now: "I know I need to put a bunch away". [59] Ashley Aleck's testimony was that she was aware of the closures on the Fraser on each of the occasions in question. She and herfather nevertheless chose to fish on July 17th, 2005 because they had been made aware that the river had been opened to sports fishersand the Sto:lo Tribal Council had purported to authorize an opening that date. [60] She testified that they caught one Chinook that day and no Early Stuart Sockeyes. Ms.

Aleck also admitted she was aware thatshe and her father were outside the opening hours on August 25th, 2005. She maintained that fishing the early morning hours was moreproductive because the water was cooler and the chance of encountering sports fishers was less. They decided to use the drift techniquebecause of a lack of success at her family's set net sites. Similarly, Ms. Aleck related that she was fishing outside the opening hours onJuly 27th, 2006 with Mr. Christopher. [61] As with the previous year, the set nets were not producing for Chinook. Ms.

Aleck indicated that she chose not to wait until theopenings of July 28th and 29th because her opportunity to catch fish would be reduced due to competition from other First Nationsfishers. [62] In answer to further questions put to her by Mr. Jensen, Ms. Aleck acknowledged that she had taken the opportunities to fishother opening periods in 2005 and 2006. She generally fished every weekend. She was unable to say how many Chinook she caught andshe does not keep a record. She agreed that the river was always closed for the Early Stuart Sockeye run.

She also agreed if there wereopportunities available to her to participate in the openings that took place near the dates in the Informations, she agreed that she chose tofish on the occasions in question with full awareness that the river was closed. Her reasoning for fishing before the openings appeared tobe that she would not get a sufficient number of drifts if she had to queue up with others using the same method.

Despite thisacknowledgement, she denied that her objective was to get ahead of other fishers. [63] I should note that the Crown did not challenge the sincerity of any of the witnesses called to give evidence, including thedefendants. Indeed, I find that all the witnesses who gave evidence appeared to be doing their best to provide accurate testimony to theCourt. Submissions [64] Mr. Birch argue that there has been a prima facie infringement made out on the evidence.

He says Ashley Aleck's Aboriginalright to fish has been interfered with by the closures and restrictions which were in place at the times that she was fishing. In developinghis argument, Mr. Birch made reference to the case of Sparrow, supra, which remains the seminal case on Aboriginal rights under s.35(1) of the Constitution Act, 1982. [65] In Sparrow, supra, the Supreme Court of Canada devised a test which trial judges are to apply in cases involving s. 35(1). Mr.Birch stressed that the test is prima facie and no more. The test is met in other words on the basis of some evidence.

This is not the pointat which such evidence ought to be weighed; the onus is not heavy (see R. v. Sampson, (BC CA), [1996] 2 C.N.L.R.184). [66] Both Mr. Birch and Mr. Jensen pointed to the following passage found at para. 70 of Sparrow, supra, which sets out the testapplied at this stage of the proceedings: [70] To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1),certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship?

Third, doesthe regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facieinfringement lies on the individual or group challenging the legislation. In relation to the facts of this appeal, the regulation would befound to be a prima facie interference if it were found to be an adverse restriction on the Musqueam exercise of their right to fish forfood. We wish to note here that the issue does not merely require looking at whether the fish catch has been reduced below that neededfor the reasonable food and ceremonial needs of the Musqueam Indians.

Rather the test involves asking whether either the purpose or theeffect of the restriction on net length unnecessarily infringes the interests protected by the fishing right. If, for example, the Musqueamwere forced to spend undue time and money per fish caught or if the net length reduction resulted in a hardship to the Musqueam incatching fish, then the first branch of the s. 35(1) analysis would be met. [67] In R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723, the Supreme Court of Canada clarified that the threequestions set out in Sparrow, supra, were factors only.

Even answering all three in the negative does not preclude a finding of prima facieinfringement. [68] With respect to Informations 51538-1 and 51530-1, Mr. Birch submitted that the conditions on the licences in question here arethe issue. The restriction in particular on his client's choice of method is an infringement he says. [69] Ms. Aleck testified that her family set net sites were not producing sufficient fish and this caused unnecessary hardship. She wasnot aware of new sites created by the river itself.

If she was to meet her need to fish for food or ceremonial purposes, she had no choicebut to employ the drift net technique. In this sense it was the preferred means. [70] As for Information 50345-1, the problem was the licence requirement itself. Mr. Birch notes that the Tribal Council authorizedfishing at the time Ms. Aleck was doing just that. [71] The DFO closed the entire river because of concern for the Early Stuart Sockeye run. This blanket closure is an infringement,he says, because it goes beyond a simple restriction to specific times and gear.

[72] Mr. Aleck who has represented himself throughout these proceedings argues that his Aboriginal rights were infringed becausesports fishers were targeting salmon from the ocean all the way up the Fraser River. He maintains that the DFO could not have had anylegitimate conservation concerns since there were no restrictions on sports fishers in salt water. [73] As I understand it, his argument is that the DFO has given priority to sports fishers over First Nations fishers. This contravenesthe constitutional entitlement of the latter: R. v. Tommy, 2008 BCSC 1095. [74] Further, Mr.

Aleck argues that this is contrary to the law as the law establishes that the Aboriginal right to fish supercedes therights of other fishers: R. v. Sam, [1989] 3 C.N.L.R. 162. [75] While both Tommy, supra, and Sam, supra, discuss relevant principles, neither case focuses on the issue of prima facieinfringement. Accordingly, these cases are of limited assistance. [76] Mr.

Aleck also complained that the DFO has mismanaged the fishery to the point of causing First Nations fishers to go without.Further, he says that the DFO has never offered compensation for the infringement of these rights. [77] As I understand it, Mr. Aleck adopts the arguments that Mr. Birch puts forward on behalf of Ms.

Aleck as they relate to thedisappearance of his family's traditional set net sites. [78] While he acknowledged that new spots are created from time to time by the river current, the competition for these is intenseand there are inevitably insufficient spots for everyone to practice the right to fish. [79] As a consequence of the various limitations arbitrarily imposed by the DFO, Mr. Aleck invited me to find that there has been aprima facie infringement of the Aboriginal right to fish in all of these cases. [80] Mr.

Jensen stresses that the onus is on the applicants to satisfy the Court that the limitations constitute an infringement. Hepointed out that a licence requirement or regulation in and of itself clearly does not necessarily suffice: R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013; R. v. Lefthand, R. v. Eagle Child, 2007 ABCA 206. [81] The Alberta Court of Appeal thoroughly reviewed the jurisprudence pertaining to s. 35(1) in the Lefthand, supra, decision.

Atpara. 125 the following observations are made: [125] In measuring an infringement of an aboriginal right, it must be recalled that aboriginal rights are largely collective in nature.While any individual member of a Band enjoying an aboriginal right can take advantage of that right, the right itself belongs to the Bandas a whole. The right can, for example, only effectively be surrendered by the Band acting collectively, as was done when the treatieswere signed.

In examining whether an infringement of a treaty right is minimal, the courts should have regard to the impact on theinfringement on the rights of the Band as a whole, and not simply on the right of the individual who is charged with an offence. [82] Mr. Jensen submitted that the approach taken in Sparrow, supra, and the ensuing cases requires a balancing of aboriginal rightswith the rest of Canadian law. It is an exercise in reconciliation by which I understood him to mean that the aboriginal rights in issue arenot absolute.

He pointed out that these are communal rights rather than individual rights although obviously exercised by individualsfrom the community. [83] Mr.

Jensen forcefully argues that the main failing in the defence cases here is that we have no testimony from the community orCheam First Nation representatives which defines what the communal rights entail. [84] By contrast, he noted that the Sparrow, supra, case featured extensive testimony from the Musqueam Band about the nature andextent of the communal right, thus accepting that the defendants' preferences were for drift fishing in the dark does not reflect anycommunity preference. [85] What Mr.

Jensen suggested is really going on here is that the defendants prefer to fish ahead of the line so to as to avoidcompetition from within the First Nations community. This has nothing to do, he says, with any communal right. It is impossible to saythat there has been infringement here when there is no evidence about the scope of the right. The simple fact that licences were requiredis insufficient to show prima facie infringement: R. v. Douglas, 2003 BCPC 127.

Even a complete closure is not necessarily aninfringement of the communal right. [86] The various cases at bar involve timing and/or the use of certain equipment. In four instances the charges relate to fishing somehours prior to the opening. [87] Following the framework set out in Sparrow, supra, the first question here suggested Mr. Jensen is whether the setting of theseopenings was a reasonable exercise in the power given to the DFO to manage the fishery.

Given the evidence before me from DFOofficers regarding the reasons for the licence requirements and restrictions, the answer must be yes. [88] As to second Sparrow, supra, question, Mr. Jensen suggested that the evidence does not establish that either defendant sufferedundue hardship as a consequence of the restrictions. If the river has changed course and taken away set net sites formerly allocated to thedefendants' family that is not evidence of communal hardship. Further, the DFO recognized a communal preference for drift nets byallowing such methods on the specified dates.

The evidence demonstrates that there were substantial openings in the overall periods inquestion with no indication that the supply did not satisfy the demand. [89] The third Sparrow, supra, question should also be answered negatively according to Mr. Jensen. The difficulty for thedefendants here he reiterated was the lack of evidence of a communal desire to fish at particular times or water temperatures. Mr. Jensenmade reference to Sampson, supra, as being the case that is closest on the facts to the cases at bar. At para. 43, the Court made thefollowing comments about the Sparrow frame work:

[43] The purpose of the three questions posed in the first stage of the test (is the limitation unreasonable; does the regulation impose undue hardship; and does the regulation deny to the holders of the right their preferred means of exercising that right) is, in our view, to ensure that only meritorious claims are considered. The onus on the applicant is not heavy. The establishment of an infringement on a prima facie basis is sufficient.

To include consideration of such factors as priority and consultation - factors which are relevant to the second stage of the test - would adversely affect the onus of proof resting upon the applicant. It would diminish the safeguard for Aboriginal rights established by s. 35(1) as interpreted by the Supreme Court in Sparrow . [ 90 ] In his argument, Mr. Jensen stressed that while communal rights are necessary and important, the control exercised here through the modest imposition of closures and equipment requirements has not amounted to infringement. All the evidence demonstrates, according to Mr.

Jensen, is that the defendants were personally inconvenienced - the missing piece is the lack of prima facie evidence of communal practices. Analysis [ 91 ] As has been observed in the cases I have been referred to, the Sparrow , supra , decision makes clear that the right to fish under s. 35(1) is communal. Put another way, it “inheres in the community:” R. v. Kapp , 2008 SCC 41 . [ 92 ] No one officially representing the Cheam First Nation or any other Sto:lo group testified nor was any person called with the qualifications to provide evidence of an anthropological nature.

As noted, the evidence I have heard in this case from the defendants and the other witnesses focussed on describing why the right was important, what some of the social and ceremonial obligations relating to salmon are, and the practical implication of these. [ 93 ] As well, much of the focus in the evidence and arguments presented by the defendants has been on the perceived shortcomings of the DFO and federal government in dealing with the fishery and competing stakeholders. [ 94 ] These points appear to have some merit.

They are not, however, particularly relevant to this stage of the proceedings. [ 95 ] I am guided by the analysis in Sparrow , supra , and have considered the evidence in light of the framework suggested in that case. It is useful to consider each factor separately. One might intuitively conclude that the imposition of any limitations on the right of First Nations to determine when and how to fish would amount to an infringement. This argument however has been tried without success in the past.

The imposition of a licence or conditions in and of itself does not constitute infringement: Nikal , supra , at para. 91 . [ 96 ] Here, the limitation on July 17th, 2005 was a complete closure. Mr. Aleck chose to participate in a protest fishery. I can and do infer that the closure of the Fraser River to fishing for Chinook at that time was unpopular with some members of the Cheam First Nation, including Mr. Aleck.

That is different however than demonstrating objective unreasonableness. [ 97 ] More to the point, I can find no evidence that the closure of the Fraser River on the date set out in the Information was unreasonable as that term is discussed in Sparrow , supra , and interpreted in ensuing decisions. Specifically, there is no evidence that this restriction was prima facie unreasonable. [ 98 ] The same conclusion is inevitable with respect to the other Informations before me. Nothing on the face of the various licences has been shown to have had the effect of unreasonably restricting the communal right to fish.

The problem for the defendants is twofold: there is, again, an absence of evidence that these restrictions have any effect on the communal right, and beyond that an absence of evidence that the temporal and method limitations were prima facie unreasonable. [ 99 ] As regards to the first point, there is no clear evidence of what the communal right involves beyond some undefined right to fish.

As regards the second point, there is no evidence that the defendants could not have met their needs by conforming to the conditions of these licences. [ 100 ] At best, there is only a vague concern expressed that fishing at the same time and using the same gear as other Band members would result in need not being met. [ 101 ] There is nothing before me to suggest that either defendant on any of the occasions giving rise to these charges could not have obtained a licence to participate in the fishery in a lawful manner. [ 102 ] Any concern that conforming to the licence requirements would result in hardship was, at best, speculative.

There is no evidence that any other member of the Cheam Band suffered hardship and, as noted, no evidence from a representative of the Band itself. Obtaining a licence did not appear to have been an expensive or otherwise difficult proposition. I can discern no other hardship that befell the defendants as a consequence of the restrictions attending the licences. [ 103 ] It is undoubtedly the case that both defendants prefer drift net fishing to set net fishing.

Again, there is logic in their preferences but there was nothing preventing the use of this method on other days than those in question. [ 104 ] While I am mindful of the comments made in Gladstone , supra , and other cases that unreasonableness, hardship, and preferred means are merely factors to take into account, there are no other features in the evidence before me that suggest prima facie infringement of the communal right of the Cheam Band was a consequence of any of the restrictions in question. [ 105 ] I agree, albeit with some reluctance, with Mr.

Jensen's submission that I do not have direct evidence about the scope of the communal right of the Cheam Band to fish for food, ceremonial and social purposes. While as I have noted there is no doubt that the right does exist, I do not think I can infer the nature and scope of it from the testimony of the individuals I have heard from in this case. Moreover, there is nothing in the remaining evidence on which to base such an inference. That such evidence is necessary is not in doubt. That was discussed in R. v. Seward , [1997] 1 C.N.L.R. 139 .

At p. 149 of that decision my brother Higginbotham J. put the point as follows:

[149] Whether the test becomes whether or not the legislation has a certain effect, it is necessary that the Court consider the effect on this particular Band in this particular area and indeed the effect on each of the members who might wish to exercise the right. Conclusion [ 106 ] For the reasons I have outlined above, I am not satisfied that there is prima facie evidence that the closures and other restrictions set out in these cases had the effect of infringing the defendants' rights to fish. __________________ R.C. MacKay J.