R. v. Martin, 2016 NSPC 14

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Martin , 2016 NSPC 14 Date: 2016-03-08 Docket: 1935144 1935145 1935146 1935147 Registry: Sydney, N.S. Between: Her Majesty the Queen v. Joseph James Martin and Victor Benjamin Googoo Judge: The Honourable Judge A. Peter Ross Heard: Between September 15, 2008 and May 10, 2013 at Baddeck and Sydney, Nova Scotia Decision March 8, 2016 Charge: s. 78 , Fisheries Act of Canada Counsel: Gerald Grant, for the Director of Public Prosecutions Canada Douglas Brown and Paul Prosper, for the Defendants

Summary: Beginning in 1994 and in each ensuing year the federal Department of Fisheries and Oceans entered into Agreements with the Waycobah First Nation concerning, among other things, a food, social and ceremonial fishing allocation to members of that aboriginal community. These Agreements emanated from an Aboriginal Fishing Strategy created in 1993 by DFO in response to the Supreme Court of Canada decision in R. v. Sparrow. Pursuant to the terms of the 2007-08 Agreement members of the Waycobah Band were permitted a certain number of salmon. Certain rivers were open to the FSC fishery.

Certain fishing methods were permitted. An Aboriginal Communal Fishing Licence was issued, according to the terms of the Agreement. Salmon stocks in Middle River were below spawning requirements and conservation measures were needed. A limited recreational fishery was in place there for “hook and release” only. On October 10, 2007 the Defendants, members of Waycobah First Nation, jigged salmon from Middle River, in apparent contravention of the terms of the Licence and Agreement. They were charged with offences under the Fisheries Act .

At trial the Crown acknowledged that the Licence, by restricting aboriginal fishing in Middle River, constituted a prime facie infringement of the Defendants’ aboriginal right to fish for food in that river.

Issues: Were the individual Defendants bound, and were the actions of the Defendants encompassed by the terms of the subject Agreement and Licence? What principles of

interpretation ought to apply to modern-day agreements between governmental and aboriginal agencies, such as the subject AFS Agreement? Where such an Agreement has been reached, does the Agreement itself constitute “justification” for the infringement, according to the Sparrow paradigm? Is the Crown never the less required to justify any infringement posed by the Licence in accordance with the criteria set out in R. v. Sparrow? If the Crown is so required, has it justified the infringement by producing evidence of sufficient consultation and honourable conduct throughout the negotiations?

In particular, did DFO give undue consideration to the interests of recreational fishers, and did DFO mislead Waycobah by employing certain terminology in the written record of negotiations? What is the nature of the infringement of the aboriginal fishing right posed by the subject Licence? How does this inform the nature of consultations and the degree of formality? Having regard to a 1993 DFO policy statement concerning the Aboriginal Fishing Strategy, did the Crown fulfill a particular duty to consult with Waycobah about any “enforcement action” which might be taken during the currency of the Agreement?

How does this policy statement affect the charging discretion of the Fisheries Officers who apprehended the Defendants? How does the “honour of the Crown” doctrine apply to the mutual performance of the parties’ obligations under the subject Agreement. Result: Usual principles of construction and contract law should apply to a modern-day agreement between government and an aboriginal entity. Viewed through this lens, the Agreement binds the Defendants and applies to their actions on the date and place in question. It was validly executed by the Chief.

There is no ambiguity in the terms of Agreement or the ensuing Licence. The Defendants possessed no residual right to fish. DFO at no time represented that it would not lay charges for breach of terms. In any case where an agreement such as this has been achieved, whereby a limitation of an aboriginal right is effected, the Crown is not required to prove justification in accordance with the usual standards and criteria in Sparrow. The infringement of the right is presumptively justified by the agreement.

There is, however, an enhanced duty of good faith upon the Crown (DFO) in its negotiation of an agreement which limits an aboriginal right. The presumption of justification may therefore be rebutted if the aboriginal Defendant proves that the Crown acted in bad faith in the negotiation of terms. Here the evidence discloses no such breach, nor dishonourable dealings. In the alternative, if it is necessary to prove justification according to the Sparrow paradigm, the Crown has done so.

It consulted sufficiently and behaved honourably in all dealings leading up to the signing of the Agreement A 1993 DFO Policy statement, pertaining to the entire Aboriginal Fisheries Strategy program, includes an undertaking by DFO to consult with the aboriginal authority (Waycobah) prior to taking enforcement action. This representation, which concerns implementation of AFS Agreements, and supports the co-management objectives of the AFS program, applies to the subject Agreement. Crown did not prove that such consultation was undertaken.

While DFO was not precluded from laying charges it was honour-bound to engage in a bona fide consultation before doing so. The apprehension of the Defendants and the seizure of their gear had to be undertake without delay. The Defendants were not charged until months later; some form of enforcement consultation should have been undertaken in the interim. There was a flagrant breach of the terms of the Licence. The Defendants have no substantive defence. However the failure to consult about enforcement is sufficiently serious to warrant a stay of proceedings.

By the Court: Introduction [ 1 ] The defendants are Joseph James Martin and Victor Benjamin Googoo. They are Mi’qmaq, and registered members of the Waycobah First Nation in Cape Breton. On October 10, 2007 they fished for, caught and retained two salmon at the Twin Churches Pool on the Middle River.

They “jigged” the fish, which is to say they manipulated a large hook so as to indiscriminately pierce the salmon instead of luring the fish to take a hook into its mouth. [ 2 ] By Information laid on August 6, 2008 the Defendants were charged with contravening conditions of an Aboriginal Communal Fishing Licence which had been issued to Waycobah First Nation, firstly by fishing at a time and place salmon were not permitted to be taken and secondly by jigging in inland waters. [ 3 ] The primary regulations used to manage and control the inland fisheries in Nova Scotia, New Brunswick and Prince Edward Island are the Maritime Provinces Fishery Regulations, SOR/93-55 .

Subsection 4(1) requires that all fishers be licensed. The Aboriginal

Communal Fishing Licences Regulations authorize the issuance of licences to aboriginal groups. By such means the aboriginal right tofish is managed and reconciled with other interests.

Section 7 of these Regulations provides as follows: “No person carrying on fishingor any related activity under the authority of a licence shall contravene or fail to comply with any condition of the licence.” TheDefendants are thus alleged to have breached this

section which, if proven, would constitute offences under s.78 of the Fisheries Act. [4] The License in question was issued by the federal Department of Fisheries and Oceans after some dialogue with Waycobah andpursuant to a series of agreements between Waycobah and DFO. As such the charge seemingly pits the individual defendants againstboth the Crown and their own community, but it appears at least some element of the Band has aligned with the Defendants in theposition they take against the Crown. [5] One of the agreements between Waycobah and DFO is dated 16 October 2007.

It was meant to cover the entire 2007-2008salmon fishing season, including the date of the alleged offences, and is thus a central document to this case. That agreement, and a seriesof similar agreements covering previous seasons, arose out of a program conceived by DFO in the early 1990’s – the AboriginalFisheries Strategy. The AFS was a response to the Supreme Court of Canada decision in R. v.

Sparrow (SCC), [1990]1 S.C.R. 1075 in which the right of Canada’s indigenous people to fish for food, social and ceremonial purposes was recognized. [6] Pursuant to these agreements Communal Fishing Licenses were issued which describe allocations, places, times and methods offishing. Such a Licence, granted to Waycobah, was in effect as of October 10, 2007. Places [7] Waycobah is a Mi’qmaq community which has taken the name Wayobah First Nation. It is located on Reserve lands in CapeBreton and situated on the Trans-Canada Highway, at the mouth of Skye River.

According to its website it is a community of 850people. The defendants are members of Waycobah. [8] Wagmatcook (previously known as Nyanza) is a Mi’qmaq community and likewise situated on an Indian Reserve in CapeBreton on the Trans-Canada Highway. Wagmatcook lies at the mouth of Middle River. [9] Waycobah and Wagmatcook are two of five First Nations / Indian Reserves on Cape Breton Island. The others are Eskasoni,Membertou and Chapel Island (Potlotek). [10] Middle River and Skye River both flow into the Bras d’Or Lake. This “lake” is actually an inland sea connected to the ocean.

Itthus provides a route for anadromous fish to spawn. The fishing in question occurred upstream on Middle River. Terms / acronyms [11] The following terms are used herein: UINR – Unama’ki Institute of Natural Resources - UINR was formed in as an organization to represent Unama’ki Mi’kmaq communitiesin respect to natural resources and the environment. The signatory Chiefs were Allison Bernard (Eskasoni), Lindsay Marshall (Potlotek),Terry Paul (Membertou), Morley Googoo (Waycobah), and Mary L.

Bernard (Wagmatcook) AFS – Aboriginal Fisheries Strategy DFO – Department of Fisheries and Oceans DNR – Department of Natural Resources (NS) ZMAC – Zone Management Advisory Committee FSC – Food, Social and Ceremonial CSR – conservation spawning requirements “the subject Agreement” – the aforesaid 2007-2008 AFS Agreement between DFO and Waycobah, summarized in Appendix “D”. Statement of issues [12] Among the issues which arise for determination are: Whether the subject Agreement and ensuing Licence, on their terms, apply to the Middle River and the conduct of the Defendants.

Whether an infringement of an aboriginal right must be “justified” by the Crown when a written Agreement is in place with the affectedcommunity concerning the exercise of that right. Whether, if the answer to the foregoing is “yes”, the Crown has never the less proven that the infringement is justified. Whether Crown/DFO compromised its duty of good faith to an aboriginal community (

i) by assigning too much importance to theinterests of the recreational fishery or (ii) by labelling the negotiations preceding the Agreement “without prejudice”. Whether the Crown’s duty to consult was met (

a) in the negotiation of the subject Agreement and (

b) in respect to enforcement of itsterms.

Whether Crown / DFO breached a duty of good faith by failing to follow an enforcement protocol set out in a 1993 policy statement concerning the Aboriginal Fisheries Strategy [ 13 ] In deciding each of these, other points of contention are addressed.

The analysis includes consideration of the following: how the “honour of the Crown” doctrine informs the formation of a valid Agreement between a Crown agency and an aboriginal entity. how to interpret the terms of the subject Agreement how to characterize the nature of the infringement or limitation of the FSC right which is posed by the subject Agreement [ 14 ] This case invokes aboriginal rights, not Treaty rights. However there are principles common to both. Applying these principles can be difficult.

The law itself has a protean quality, which is understandable at this stage of its development. [ 15 ] Defence has raised many concerns, woven together in creative fashion. Grappling with these has led to a rather lengthy judgement.

Some of the arguments are quite complicated, as for instance the following extract from the Defence closing brief: Thus, it falls to this Court to determine what weight, if any, should be given to the "evidence" that the Chiefs "agreed" (consented) to restrict their food fishing to rivers above 100% CSR (conservation and spawning requirements) while permitting a hook and release sport fishery. This is where subtle distinctions must be made and resort must be had to legal authority.

The question might be posed as follows: "Does an ex post facto operational plan (draft), and/or the "consultations" upon which the plan was based, amount to proof of the consent required to

a) be regarded as an implicit premise of subsequent AFS agreements; and then

b) be regarded as the type of consent that is consistent with honourable and reasonable good faith dealings - (i.e. sufficient to justify the admitted infringement). [ 16 ] In addressing the issues raised here and elsewhere in argument I have tried to disentangle and re-cast them somewhat. On certain issues I would have wished for more exploration, more questioning of witnesses, but did not myself identify the importance of such until well after the case had closed. [ 17 ] Consultation, and the efficacy of modern-day agreements between governmental and aboriginal entities are key aspects of this case.

Whatever significance the case may have lies not in the scope or nature of an aboriginal right but in the manner in which the parties should relate – Government (DFO), First Nation (Waycobah), the individual native person (the Defendants). Chronology [ 18 ] A brief outline of the court proceedings to date is set out in Appendix “A” The testimony [ 19 ] I have attached a

summary of the testimony of the various witnesses as Appendix “B”. Included there is an agreed statement of facts. I do not mean to thereby marginalize the importance of this evidence; it underpins many of the conclusions stated in the body of the judgement. The exhibits [ 20 ] Over 100 documents were entered into evidence. Some of these are many pages in length and make for complicated reading. As with the oral testimony, I have attached a

summary of the more important documents as Appendix “C”.

PART 1 – BACKGROUND The salmon [ 21 ] Atlantic salmon were spawning in Middle River before the river was discovered and fished by the Mi’qmaq. The species arguably has inherent value - apart from its value as a food source or a sport fish - which value is deserving of recognition by all Mi’qmaq and all Canadians. The Mi’qmaq [ 22 ] The Mi’qmaq are one of the indigenous peoples of Canada. They preceded European settlers (largely Scottish) in area surrounding Middle River by thousands of years. Their aboriginal right to fish is recognized in s.35 of the Constitution Act and explicated in case law.

It is well settled that aboriginal people have priority access over non-aboriginal Canadians to fish such as salmon. The particular aspect of that right at play in this case is the right to fish for food, social and ceremonial purposes. In the hierarchy of interests, sport-fishing is of lesser importance. The Crown [ 23 ] The aboriginal fishing right in question here is not a sovereign right. The Crown has ultimate authority and responsibility to protect and conserve salmon. It must do so in a manner consistent with a hierarchy of interests established by law.

It must do so in a manner which shows good faith and fair dealing with aboriginal peoples. The government is not only responsible to an electorate in how it fulfills these obligations, it is responsible to the Constitution and to the rule of law. [ 24 ] Given the hierarchy of interests, efforts to conserve salmon stocks in Middle River and elsewhere would seemingly be of primary interest to the Mi’qmaq and potentially more beneficial to them than to others.

The place of aboriginal rights in Canadian law [25] The Supreme Court had this to say in R. v. Nikal (SCC), [1996] 1 S.C.R. 1013, which it reiterated in R. v.Marshall (No. 2) (SCC), [1999] 3 S.C.R. 533 at par. 27: It has frequently been said that rights do not exist in a vacuum, and that the rights of one individual or group are necessarily limited bythe rights of another. The ability to exercise personal or group rights is necessarily limited by the rights of others. The government mustultimately be able to determine and direct the way in which these rights should interact.

Absolute freedom in the exercise of even aCharter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended.

Section 1 of the Canadian Charter ofRights and Freedoms is perhaps the prime example of this principle. Absolute freedom without any restriction necessarily infers afreedom to live without any laws. Such a concept is not acceptable in our society. [26] It may be worth noting that Mi’qmaq can participate in the recreational sport fishery. They, like all Canadians, are entitled toapply for a sport fishing licence. Enforcement of this would not depend on such things such as “consultation” or “justification”.

S.35 ofthe Constitution would provide no defence to such activity for they would not be exercising an aboriginal right. Communal right [27] Both aboriginal and Treaty rights are communal rights. [28] In R. v. Kapp 2008 SCC 41 , [2008] 2 S.C.R. 483 at par.4 the nature of a communal right was expressed this way: Court decisions have confirmed that pre-contact fishing practices integral to the culture of aboriginal people translate into a modern-dayright to fish for food, social and ceremonial purposes.

This right is a communal right which inheres in the community, not the individual,and may be exercised by people who are linked to the ancestral aboriginal community. [29] In R. v. Denny [1990] N.S.J. No. 56 the Nova Scotia Court of Appeal affirmed for the Mi'kmaq the aboriginal right to fish forfood. [30] In R. v. Sparrow supra at para. 68 the Court states that “Fishing rights are not traditional property rights.

They are rights held bya collective and are in keeping with the culture and existence of that group.” [31] The Defendants thus have no free-standing individual right but as individuals of aboriginal descent they may accrue and exercisethe benefit of a communal right. [32] Given the foregoing it is reasonable to think that collective rights are accompanied by shared responsibilities. One hopes thatthese responsibilities are not so diffuse as to blur accountability.

Made in Nova Scotia process / Tripartite Forum [33] This case occurs against the backdrop of an on-going negotiation involving the federal government, the Nova Scotia governmentand aboriginal peoples. The goal is an over-arching resolution of Treaty and aboriginal rights issues in this province. Such matters asthe nature, extent, and management of an FSC fishery will presumably be settled in a long-term sense by this “Made in Nova Scotiaprocess.” This is to be commended for, as stated in R. v.

Marshall (No. 2) supra at par. 22, “the process of accommodation of the (treaty)right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by theMi’kmaq rather than by litigation.” One may find some general information here: http://www.novascotia.ca/abor/resources/#umbrella http://novascotia.ca/abor/office/what-we-do/negotiations/ - https://novascotia.ca/abor/docs/Framework-Agreement.pdf Involving the courts [34] While this modern-day treaty process is underway, the world does not stand still.

There are rights to be exercised and there areresources to be managed. Efforts are made to implement interim management regimes whilst these broader negotiations take place. [35] In a statement equally applicable to broad treaty-like negotiations and to dialogue surrounding short-term interim agreements, theSupreme Court said, in Marshall (No. 2) supra at par. 23 - “The various governmental, aboriginal and other interests are not, or course,obliged to reach an agreement.

In the absence of a mutually satisfactory solution, the courts will resolve the points of conflict as theyarise case by case.” [36] Courts have occasionally expressed frustration at having to contend with aboriginal rights issues in the context of quasi-criminalprosecutions such as this (see for example R. v. Bernard [2010] N.B.J. No. 277). In R. v.

Lefthand 2007 ABCA 206, Slatter J.A. decrieda deliberate breach of fishery regulations, and the defences raised, as “collateral attack” on legislative action, saying at par. 47: . . . collateral attack on the validity of administrative orders and regulations in matters of conservation and environmental protection is tobe avoided. This is not a rational and orderly way in which to determine the extent of aboriginal rights. The arguments against collateralattack apply doubly to collateral attack based on an alleged failure to consult.

The duty to consult is collective; there was no obligation toconsult with Eagle Child or Lefthand themselves. It is one thing to say that aboriginal people have a collective right to be consulted, andquite another to say they can individually break the law if they are not. At least when there is a meaningful opportunity to do so, anyfailure of the duty to consult should be advanced by the council of the Band, or some other individual or group that anticipates being

directed affected by the regulation. [37] Notably the other two judgements in Lefthand did not endorse this dicta, saying that the matter of “collateral attack” wassuperfluous to the issues on appeal. [38] It may be that certain questions concerning formal agreements between the Crown and First Nations are better addressed in a civilproceeding rather than tested indirectly through quasi-criminal prosecutions and related defences. Ideally the courts would not beinvolved at all. That said, I will deal with the contractual and other issues as they arise before me in the context of these charges.

Conservation and the role of DFO [39] In R. v. Tommy [2008] B.C.J. No. 1543 (BCSC) the following observations are made at para 52 et seq: The concept of conservation . . . is not limited to preservation of a resource to avoid its extinction. Conservation also includes thebroader concept of sustainability. The jurisprudence underscores the need for conservation measures to include objectives that ensure long-term sustainability of aresource. In this context, conservation of fish stock has long been accepted as a valid legislative objective within the meaning of the testfor justification as set out in R. v.

Sparrow (SCC), [1990] 1 S.C.R. 1075. At para. 73 the Supreme Court . . . ascribed abroad meaning to the term conservation, which included management of fisheries beyond mere avoidance of the resource's extinction,and for the benefit of all user groups, subject to the following descending order of priorities: conservation, Indian fishing, non-Indiancommercial fishing, or non-Indian sports fishing . . .

The Supreme Court of Canada balanced the government's responsibility to manage the resource with its need to ensure the aboriginalconstitutional right to fish was respected, stating that subject to the above-noted order of priorities, "the burden of conservation measuresshould not fall primarily upon the Indian fishery . . . In Delgamuukw v. British Columbia, (SCC), [1997] 3 SCR 1010 the Supreme Court discussed the need to examine thisissue in the context of the government's fiduciary obligation to the aboriginal peoples as well as its legitimate objectives to the broadercommunity as a whole (para. 162).

In that regard, at para. 161 Lamer C.J. cited para. 73 from R. v. Gladstone, (SCC),[1996] 2 SCR 723: Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they arepart; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broadercommunity as a whole, equally a necessary part of that reconciliation. [40] The series of AFS agreements noted above must be read in the context of Fisheries Act and regulations, and understood in view ofwhat the Supreme Court said in R. v.

Marshall (No. 2), supra. Here the court confirmed that the federal government bears overridingresponsibility for the fishery. Under the Fisheries Act this responsibility rests with DFO. The Maritime Provinces Fishery Regulationsin s. 4(1) set out a general prohibition against fishing unless, inter alia, the person is authorized to do so under the authority of a license. The Aboriginal Communal Fishing Licences Regulations provide for one such authorization in the form of a communal fishing licencegranted to a given aboriginal community.

Such Licences are issued in recognition of an aboriginal right to fish, as a mechanism to giveexpression to that right, while also preserving the conservation ethic. Where the health of the fish stock allows for a certain capture,DFO is required by law to give priority to those who possess treaty and aboriginal fishing rights. Where fishing is restricted in a waywhich infringes an aboriginal right the Crown must be able to explain and justify the resulting infringement. [41] In earlier times the idea that the fishery needed protection or regulation would have seemed preposterous.

Today it is generallyunderstood, whatever the rights issues, that unregulated fishing is a virtual death sentence for fish stocks. Some regulation is necessaryand ought to be expected. Regulation may be achieved through mechanisms which are well practiced, well understood and wellestablished in Canadian law. The Aboriginal Fisheries Strategy program [42] The following is a useful

summary of the Aboriginal Fisheries Strategy, from the Defence brief: The AFS Program (1993) had begun as DFO’s response to the unrest brought on by the Sparrow decision in 1992. It was their attempt tomanage fisheries in a manner that was claimed to be “consistent” with the constitutional protections afforded through

section 35 and theFisheries Act. It was hailed as a new “social contract” and stated that proposed Working Agreements developed pursuant to this policyaddress fisheries management issues but do not “define or limit” Aboriginal rights. The AFS program was conceived of as a “cooperative” and "bridging mechanism" designed to operate during the period that it beganuntil such time as a modern comprehensive land claims agreement settled the issue of existing Aboriginal rights. This was to beaccomplished through annual “negotiated interim agreements”.

The AFS program was designed to decrease or eliminate the conflict over fisheries resources through “practical cooperation” and“consensus” in the fishery. To facilitate the bridging process, standardized "without prejudice" language was employed and used inWaycobah’s AFS Agreement. [43] The following extract (with some editing) is taken from R. v. MacDonald [2003] N.S.J. No. 359 at par.5 et seq. A new policy, with respect to a new Aboriginal fisheries strategy, was approved by the Federal Cabinet and circulated in June of 1992.

Itwas announced through a news release on September 9th, 1992 by the then Honourable John C. Crosby, Minister of Fisheries andOceans. In it the Minister said in part:

. . . designed to provide economic opportunities to aboriginal groups in coastal areas of Canada, the Strategy will contribute substantially to enhancing Atlantic salmon stocks. In addition it responds to the Supreme Court of Canada's decision in the Sparrow case, which recognized an aboriginal right of access to the fishery for food, social and ceremonial purposes, subject to conservation.

He then described certain sums of money to be disbursed to different Native communities . . . for their participation in the Aboriginal Fisheries Strategy Attached to this news release is a backgrounder describing the Aboriginal Fisheries Strategy (AFS) as a new social contract among government, Aboriginal people and non-native fishing groups.

It speaks of negotiated agreements to cover a spectrum of fisheries management activities, including conservation, enforcement, enhanced self-management of Aboriginal fishing, fish habitat improvement in fishery enhancement, research and fisheries related economic development and training: These agreements are intended to establish cooperative mechanisms for fisheries management; meet the wish of Natives for enhanced participation in fisheries management; respond to the direction outlined in the Supreme Court Sparrow decision; and create structures to carry out the strategy.

The evolution and implementation of the strategy will involve full and open consultation with the stake holders, particularly recreational anglers and commercial fishermen. In 1991 Aboriginal people became involved as never before in the development and management of fishery projects. Key parts of that activity will be extended within agreements negotiated for 1992 and future years.

Funding will be provided to Native Bands on the east and west coasts and in the North to improve fish habitat and increase fish stock, construct or operate fish hatcheries, expand roles in fisheries enforcement, and undertake research and public awareness activities. Working agreements are being negotiated with individual bands, band councils, watershed groups and Provincial Associations. The agreements address fisheries management issues but do not define or limit aboriginal rights. Working agreements will lead to more comprehensive interim agreements. [ 44 ] And this from R. v.

Kapp supra at par. 7 : The federal government's policies aimed at giving aboriginal people a share of the commercial fishery took different forms, united under the umbrella of the "Aboriginal Fisheries Strategy". Introduced in 1992, the Aboriginal Fisheries Strategy has three stated objectives: ensuring the rights recognized by the Sparrow decision are respected; providing aboriginal communities with a larger role in fisheries management and increased economic benefits; and minimizing the disruption of non-aboriginal fisheries.

In response to consultations with stakeholders carried out since its inception, the Aboriginal Fisheries Strategy has been reviewed and adjusted periodically in order to achieve these goals. . . The communal licence cannot be granted to individuals, but an aboriginal organization can designate its use to individuals. [ 45 ] This “strategy” generated a series of yearly agreements between DFO and Waycobah which culminated (for the purposes of this case) in the subject Agreement.

Within the Agreement are terms which mirror the terms of an Aboriginal Communal Fishing Licence issued by DFO to Waycobah for that year’s fishing season. The Agreement contemplates the issuance of the Licence; the Licence implements certain terms of the Agreement in accordance with normal regulatory practice. The validity of a licensing system and a “closed season” [ 46 ] In Nikal supra at par.102 the Supreme Court had this to say: If the salmon fishery is to survive, there must be some control exercised by a central authority.

It is the federal government which will be required to manage the fishery and see to the improvement and the increase of the stock of that fishery. It is for the federal government to ensure that all users who are entitled to partake of the salmon harvest have the opportunity to obtain an allotment pursuant to the scheme of priorities set out in Sparrow . Any system of control must commence with a licensing scheme. It is through the issuing of licences to the various type of users that the department will be able to know at least the numbers of fishers and the categories of those that are fishing.

This will provide the first rough basis from which the department can make the estimates necessary to manage the fishery resource. The licence is the essential first step in the preservation and management of this fragile resource. This need to manage the stock goes far further than simply preventing the elimination of the salmon. Management imports a duty to maintain and increase reasonably the resource. The licence assists this duty by providing a means of identification that helps to ensure that only those permitted to do so are fishing in the authorized areas.

It serves as a means of control by eliminating those that do not have a licence from fishing. [ 47 ] In Marshall (No.2) supra at par. 29 the Supreme Court stated: The regulatory device of a closed season is at least in part directed at conservation of the resource. Conservation has always been recognized to be a justification of paramount importance to limit the exercise of treaty and aboriginal rights in the decisions of this Court cited in the majority decision of September 17, 1999, including Sparrow , supra, and Badger , supra.

As acknowledged by the Native Council of Nova Scotia in opposition to the Coalition's motion, "conservation is clearly a first priority and the Aboriginal peoples accept this". Conservation, where necessary, may require the complete shutdown of a hunt or a fishery for aboriginal and non-aboriginal alike. [ 48 ] Marshall did not call for an entirely new regulatory regime. It did not suggest that a long-standing system of regulations and licences be discarded. It required that aboriginal and treaty rights be recognized and accommodated.

Subsequent cases speak to the need for consultation and discussion, and elaborate upon the manner in which limitation of these rights may properly be achieved. [ 49 ] An Aboriginal Communal Fishing Licence might, in a given case, exist in the absence of a formal AFS Agreement. Restrictions are often imposed, as was the case in MacDonald supra where there were discussions but none which achieved an agreement. In the case before me, the subject Licence is issued pursuant to an AFS Agreement.

In either instance the restrictions in such Licence are, prime facie , a limitation or infringement of the aboriginal right to fish.

The aboriginal FSC right – the requirement to justify an infringement [50] In any case where the Crown is required to justify an infringement of an aboriginal right Sparrow supra sets out a template foranalysis. [51] Sparrow invokes a two-part test, namely; (

i) is there a valid legislative objective which is compelling and substantial and (ii) if so, has the honour of the Crown been maintained – is the legislation or action consistent with the special trust andresponsibility which the government owes to aboriginal people? [52] At the second stage of the test the following inquiries are made (

i) has the allocation of priorities, after valid conservation measures have been taken, given top priority to the aboriginal right to fishfor food? (ii) has there been as little infringement as possible to effect the desired conservation result? (iii) has the aboriginal group been consulted with respect to the conservation measures being implemented? (iv) in a situation of expropriation, has fair compensation been made? (emphasis added) [53] The “honour of the Crown” is a general notion, one that informs virtually every interaction between the government andaboriginal peoples. “Consultation” is a recurrent theme in aboriginal case law. [54] For its part, the Crown admits that the Communal Fishing License constitutes a prime facie infringement of the aboriginal FSCfishing right, but contends that the existence of an AFS Agreement between DFO and Waycobah is sufficient justification for theinfringement.

On this view it should not have to meet the Sparrow criteria because they are subsumed or supplanted by such agreement,and questions of priorities, consultation, etc. become moot. [55] For their part, the Defendants admit to the facts which constitute the actus reus of the offences, but defend the charges on thebasis that they were exercising an aboriginal right that was infringed without justification.

Defence contends that the Crown must provejustification in accordance with the test set out in Sparrow, below, notwithstanding the subject Agreement. [56] In the alternative to its primary argument, above, the Crown contends that should the Sparrow test apply it has, never the less,proven that the infringement was justified [57] The Defence has not put every aspect of the Sparrow scheme in issue in this case. I heard little about “valid legislative objective”or minimal infringement. There is no “expropriation”.

Consultation and “honour of the Crown” are the principal points of contention. “Allocation of priorities” enters in the discussion about the recreational fishery (see below at par. 168 et seq). [58] I will return to these “Sparrow” issues. Before doing so I will address the arguments about the construction of the Agreementitself.

PART 2 - THE SUBJECT AGREEMENT – SUFFICIENCY, TERMS AND CONSTRUCTION [59] DFO negotiated and achieved annual AFS Fisheries Agreements with Waycobah First Nation for every year from 1994 forward.Each made provision for a food, social and ceremonial fishery that allowed for the Band’s allocation of wild salmon to be harvested fromrivers that met or exceeded conservation spawning requirements.

A Communal Fishing Licence, mirroring the terms of theseAgreements, was issued for each fishing season. [60] Before deciding how the subject Agreement and Licence fit into the Sparrow paradigm I here address Defence argumentsconcerning the subject Agreement per se. I have provided a thumbnail sketch of it at Appendix “C” Tab 47. The Crown’s

summary isreproduced in Appendix “D”. What principles of

interpretation should be brought to bear? [61] R. v. Nowegijick (SCC), [1983] 1 S.C.R. 29 early held that Treaties and statutes relating to Indians should beliberally construed and doubtful expressions resolved in favour of the Indians. [62] In Van der Peet (SCC), [1996] S.C.J. No. 77 the Court had this to say about principles of

interpretation at para.23, et seq: Before turning to a purposive analysis of s. 35(1), however, it should be noted that such analysis must take place in light of the generalprinciples which apply to the legal relationship between the Crown and aboriginal peoples. In Sparrow, supra, this Court held at p. 1106that s. 35(1) should be given a generous and liberal

interpretation in favour of aboriginal peoples: When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal

interpretation of the words inthe constitutional provision is demanded.

This interpretive principle, articulated first in the context of treaty rights -- Simon v. The Queen, (SCC), [1985] 2 S.C.R.387, at p. 402; Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 36; R. v. Horseman, (SCC),[1990] 1 S.C.R. 901, at p. 907; R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, at p. 1066 -- arises from the nature of therelationship between the Crown and aboriginal peoples. The Crown has a fiduciary obligation to aboriginal peoples with the result that indealings between the government and aboriginals the honour of the Crown is at stake.

Because of this fiduciary relationship, and itsimplication of the honour of the Crown, treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests ofaboriginal peoples, must be given a generous and liberal

interpretation: R. v. George, (SCC), [1966] S.C.R. 267, at p.279. This general principle must inform the Court's analysis of the purposes underlying s. 35(1), and of that provision's definition andscope. The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards towhat falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples.

In R. v.Sutherland, (SCC), [1980] 2 S.C.R. 451, at p. 464, Dickson J. held that paragraph 13 of the Memorandum of Agreementbetween Manitoba and Canada, a constitutional document, "should be interpreted so as to resolve any doubts in favour of the Indians, thebeneficiaries of the rights assured by the paragraph". This interpretive principle applies equally to s. 35(1) of the Constitution Act, 1982and should, again, inform the Court's purposive analysis of that provision. [63] In R. v.

Marshall (No.1) (SCC), [1999] 3 S.C.R. 456 at par.78 the court set out principles governing treatyinterpretation, saying in part “a technical or contractual

interpretation of treaty wording should be avoided.” and at par. 10 that “rules ofinterpretation in contract law are in general more strict than those applicable to treaties.” [64] Quaere, whether such an approach should pertain to the subject Agreement. [65] As becomes clear when one reads the Agreement in context, it does not define the nature or scope of the basic FSC right (see “thenature of the infringement” below at par. 112 et seq). An AFS Agreement is a very different creature than the documents referred to inthe foregoing cases. Moreover, such principles of

interpretation are neither required nor desirable when examining the terms of apresent-day agreement. [66] An AFS agreement is a contemporary document, drafted in modern legal terms, involving parties with access to legal advice,between parties which stand on a much more equal footing that in the distant past. [67] While the subject Agreement does not emerge from a commercial relationship, certainty of contract and predictability of outcomeare central to achieving any negotiated resolution of the issues which concern government and the aboriginal community.

To myknowledge the Supreme Court has never held that current agreements achieved between the federal government and aboriginal peoplesshould be accorded less certitude than agreements signed by other parties. The agreements before me in this case are neither treaties norhistorical in nature. They are intended to be a clear record of an open and fair-minded negotiation.

I see no reason why basic principlesof legal and grammatical construction should not be applied to them. [68] In its closing brief Defence submits that the Court “has a duty to uphold the Honour of the Crown by preventing a course of actionthat is inconsistent with implied and explicit representations to induce a course of action which has legal consequences.” If this meansthat Waycobah or other First Nations can never into a legally binding agreement through negotiation, there is little hope that these issueswill ever be resolved.

If this means that aboriginals should never be susceptible to penalties for breaching the terms of a bargain(penalties here being those which are set out in the Fisheries Act by virtue of the Communal Fishing Licence and applicable regulations)there seems little prospect for accountability, which itself diminishes the prospect of negotiated resolution. [69] In this

Part I will consider the meaning and validity of the contract in accordance with the usual legal principles, without regard tothe constitutional status of the parties. I have taken some guidance from Waddams “The Law of Contracts” (5th ed). Contractual features of the subject Agreement [70] In basic contractual terms the subject Agreement is sufficient. There is certainty, meeting of minds, consideration, quid pro quo.

Chief of Waycobah at the time, Morley Googoo, testified that “DFO got cooperation from the Bands to use best practices to fish; inreturn the Band got funding and training.” There was a mutual interest in conservation, stock assessment and information-sharing. Orderly management of the harvest, and of salmon fishing generally, was a shared objective. [71] There is no evidence of misrepresentation be it fraudulent, negligent or innocent. Nothing was hidden from the other party. Theposition of the sport fishing group was well-known to Waycobah. I detect no deceit or intent to deceive from either party.

Waycobahagreed to certain terms, and also understood that a Communal Fishing Licence would be issued to give effect to these terms. [72] Later in these reasons I address a duty of bona fides which should apply to the conduct of DFO subsequent to signing theagreement, but this does not concern the meaning of the terms per se. Is Middle River, and jigging, included and encompassed by the terms? [73] Defence submits that the subject Agreement does not pertain to Middle River, that it is neither within the scope of the Agreementnor the ensuing Licence.

Some agreements between governments and Bands have been vague as to territory (see for instance R. v.Laurin [2007] O.J. No. 2344.) [74] “Licence” means a granting of permission, a statement of what is allowed. The language of the ensuing Licence is permissive, asis usual for DFO. It states “the quantity, gear, dates and times and area provisions for fishing under the Communal Licence . . . mayoccur are as set out in Appendix 1”. It confers permission to fish and so adopts language customarily used for all fishers, native or not. In particular it permits fishing on the North and Margaree Rivers.

In and of itself this is not offensive or problematic. As notedelsewhere, this approach must be read in the context of the surrounding negotiations and the underlying AFS agreement.

[ 75 ] The fact that Middle River is not mentioned in the Agreement does not equate to Middle River being “outside” the Agreement. It is outside the Licence but not the Agreement. It is not outside the meeting of the minds. It is neither forgotten nor expressly exempted. The Agreement sheds meaning on the Licence; the two must be read together. [ 76 ] As the Crown witnesses explained during their testimony the Licence in question states explicitly where, when and by what means salmon fishing is to take place under the negotiated terms of the AFS agreement.

It sets out the rivers where fishing is contemplated, where the FSC right will be exercised to the extent agreed upon. The alternative – listing every river in the province or area where such fishing is not permitted - is far less simple and not the usual way in which fisheries licences are drafted. [ 77 ] If Middle River is outside the terms of the subject Agreement, then the entire series of AFS agreements and Licenses have nothing to do with Middle River. It is difficult to credit Morley Googoo with his stated belief that Middle River was not encompassed by the Agreement.

It becomes even more incredible when one considers whether he could have harboured this belief for so many years. Middle River was not omitted from the ongoing dialogue between DFO and Waycobah. See, for instance, Tabs 33 to 47 in Appendix “C”. [ 78 ] Crown submitted that it must be “necessarily inferred” from the terms of the AFS Agreement and Communal Fishing Licence that Middle River, and indeed anything not expressly permitted, were off-limits to the FSC fishery. I agree with that

interpretation, which seems to accord with basic grammatical, logical and legal rules of construction. Defence labels this “the Crown’s theory of necessary inference” and then contends that this approach is insufficient to meet the high test for justification in Sparrow . However the argument holds no water. Defence constructs a “straw man” and then seeks to dismember it.

The Crown is simply arguing the plain meaning of the terms, pointing out that the licencing mechanism necessarily excludes any rivers, methods, etc. that are not expressly allowed. [ 79 ] Defence says that there is no clear record of agreement by the chiefs to restrict the FSC fishery to rivers meeting conservation requirements. However the series of yearly agreements and licences, and other dialogue between the parties, belies this suggestion. Mr. Stevens evidence on this point is quite clear.

Did Chief Googoo have authority / capacity to sign the Agreement and thereby bind members of the Waycobah First Nation? [ 80 ] I note at the outset that I am dealing here with one-year interim agreements. A pragmatic approach is called for.

If I were dealing with a modern-day Treaty, intended to permanently define the scope of a right, the question of who speaks for those affected, and who has signing authority, would assume greater significance. [ 81 ] Defence submits “there is no evidence that Chief Googoo received authority from a hereditary chief on behalf of his community.” There may cases where the participation of a hereditary chief has been considered a factor in holding a modern-day agreement binding on an aboriginal community, but there is no legal authority for the proposition that such is necessary.

No evidence or law has been put before me to indicate that the involvement of a hereditary chief is required for an agreement to be effective and binding on members of an aboriginal community. No evidence was adduced of a hereditary Chief for Waycobah, much less any role such Chief might play in negotiating interim exercise-of-rights agreements with the government. [ 82 ] Voting for one’s representative in a governing assembly is a widely accepted and constitutionally entrenched right. Morley Googoo was elected Chief of his Band in many elections, and held that post for most of the years between 1993 and 2007.

Whether an agreement would have been equally binding if signed by a hereditary Chief need not be answered here; it suffices for present purposes that it was signed by an elected one. [ 83 ] Defence argument on this point seems tantamount to contending that because Bands and Reserves are creatures of statute, the government is therefore responsible for deciding the manner in which aboriginal persons and their agencies and leaders should deliberate on their rights, for deciding who should speak for aboriginal communities, for choosing the internal mechanisms they should employ in arriving at a collective position on the limitation of a fishing right. [ 84 ] Treaty benefits accrue to non-signatories by virtue of their membership in a group whose duly-authorized representatives acquired those rights on their behalf; so too should obligations accrue to non-signatories.

Crown should not have to prove that the Defendants had actual knowledge of the Agreement and Licence. This is consistent, incidentally, with the offences being strict liability offences. DFO should not have to sign an agreement with every member of the Waycobah Band. Indeed clause 7(

b) of

Schedule B-1 states that “the First Nation will notify each person designated to participate in the FSC fishery of the provisions of this schedule, the conditions of the Communal Licence (etc.)” [ 85 ] To the point that the Chief did not have authority from the Band to sign the Agreement, Morley Googoo himself strongly resisted any such suggestion. Although Elizabeth (Betty) Gould testified that she could not find Band Council minutes or Resolutions supporting the AFS Agreements in the Band’s records, certain exhibits at Appendix “C” Tabs 66 et seq contain copies of such Resolutions.

The incompleteness of the Band’s records does not equate to lack of authority on the part of Morley Googoo. I do not take from Ms. Gould’s evidence that the Waycobah Band Council failed to discuss or approve the AFS Agreements. Was the fact that the Agreement was late being signed mean that it or the Licence was not in effect? [ 86 ] A cover page to the subject Agreement includes the words “Signed on October 16, 2007” with that date written in. Clause 15(

d) says it “will come into force on execution by both Parties and . . . will terminate on March 31, 2008.” The signature line says “the Parties have executed this Agreement . . . this 16 day of Oct., 200_” Here the day and month are written-in, the year not. [ 87 ] October 16th is 6 days after alleged offences. [ 88 ] I note first that whatever date the Agreement was signed it arguably validated the Licence issued in June; that even if there was no agreement as of October 10th (when the fishing occurred) this would not necessarily rob the Licence of its legal force and effect.

[ 89 ] I see that a hand-written note on the cover letter accompanying the Agreement says “October 15/07 – called Phill to inquire when agreement was signed and sent to HQ – he called back Oct. 16 to say Chief signed 2 weeks ago but office staff didn’t sent it to HQ . . . ” I interpret “Phill” to be Mr. Drinnen who was employed by the Band as a fisheries manager. The note is apparently made by DFO regional office staff. This material was tendered by agreement and no objection taken to receiving this note part and parcel with the rest.

As such it supplies evidence that the document was signed prior to the date of the offence. Be that as it may, I will address the Defence argument about “late signing.” [ 90 ] The foregoing cover letter is addressed to Chief Googoo from Kathi Stewart. It is dated September 25, 2007. It says “attached for your signature are two copies of (the agreement). Please sign both copies and return them . . . if you have any questions in the meantime, please contact me directly. [ 91 ] Tab 48 is the subject Licence. A cover letter from the Regional Director-General addressed to Chief Morley Googoo is dated June 1, 2007.

It states that the licence “is intended to provide the legal mechanism to fish” for FSC purposes during the period June 1, 2007 to May 31, 2008. It later states “. . . the authority to fish under this licence is valid on June 1, 2007 and will expire on May 31, 2008.” [ 92 ] The following

summary of evidence from the Crown’s brief is fair and accurate: In support of the Crown’s position, reference is also made to the testimony of Liette Pineo wherein she explains the reason for the late signing of the AFS Fisheries Agreement for the 2007 -2008 fishing season, which had nothing to do with finalizing the Band’s food, social and ceremonial salmon fishing plan for the 2007-2008 fishing season. In fact, with the sole exception of not having received the Band’s project description for allowable funding (i.e.

Schedule G-1 to the 2007- 2008 AFS Fisheries Agreement), an agreement had been reached between DFO and Waycobah First Nation regarding the terms and conditions of the Band’s AFS Fisheries Agreement before the fishing season began on June 1, 2007. Liette Pineo explained that the Band did not provide DFO with its project description for allowable funding until September 14, 2007. Once received, this allowed Liette Pineo to add

Schedule G-1 to the AFS Fisheries Agreement template and obtain pre-approval of the completed Agreement from Ottawa. The AFS Fisheries Agreement was then sent by Kathi Stewart to Chief Morley Googoo for signature on September 25, 2007.

When Kathi Stewart inquired on October 15, 2007 about whether it was signed and sent to National Headquarters, Phil Drinnan, the fisheries manager for the Band called her back on October 16 and indicated that the Chief signed it two weeks ago but office staff had failed to send it out, and he would send it out by courier on that day.” [ 93 ] Liette Pineo described her job to include “how funds were spent through the year, to review budgets to ensure that they fit within allowable costs”. [ 94 ] The Agreement, needless to say, did not contemplate the charges to be laid against the Defendants, but did contemplate financial contributions to Waycobah, to be used to pay “allowable costs” (such things as labour, overhead, supplies, equipment).

Methods of payment, cash flow projections, advances and reports are all mentioned. In one project

summary the duties of native guardians are defined, including such activities as habitat protection, stock assessment, etc. One assumes that these matters were not held in abeyance until October 16th, that the parties were acting on the terms of the agreement well prior to October 10th. [ 95 ] DFO had negotiated annual AFS Fisheries Agreements with Waycobah from the 1994-95 fishing season to, and including, the 2007-2008 fishing season. There was ongoing consultation. Year-by-year planning was the preferred option for Waycobah, despite offers from DFO to do multi-year planning.

The AFS Agreements were largely replicated, one year after another. In respect to the FSC fishery, and the status of Middle River, the terms were essentially unchanged. Waycobah willingly acceded to this practice. Although the Chief had not yet signed the 2007-2008 AFS Agreement when the FSC Licence was issued, this is primarily attributable to the Band’s delay.

DFO wanted the Licence in place in timely fashion for valid reasons, and indeed the need for issuance of a Licence even without an Agreement was contemplated at the inception of the AFS program. [ 96 ] A consideration of the evidence of Morley Googoo together with that of Kathi Stewart shows that funding was on-going over this period of years and consecutive agreements were being implemented, despite the fact that from time to time signatories may have been late getting their pens out. [ 97 ] I conclude that the subject Agreement was valid and subsisting as of the date of the offences despite the late signing.

The parties acted on a common understanding, based on terms essentially unchanged from previous years. A draft document was circulated for execution well prior to the date of the offences. Defence witnesses admitted that the Band was often late in signing these agreements.

The Defendants, as members of Waycobah, should not now be permitted to benefit from the delay or laches of the signing authorities and Band leadership. [ 98 ] In short, the 2007-08 Agreement is not rendered ineffective against Waycobah, nor is the Licence which flows from it rendered unenforceable against the Defendants simply because Waycobah officials were tardy to supply a project description, or because the document sat unattended on someone’s desk awaiting a signature. Does this Agreement entail regulation by the Waycobah Band of off-Reserve activity? [ 99 ] Defence has posed this question.

It is a red herring. The “off-Reserve activity” is fishing, which here entails the exercise of an aboriginal right, not an activity subsumed or even contemplated by the Indian Act. This right is not restricted to Reserves. The Defence suggests that Waycobah has “derived powers” through the AFS Agreement, but this is a mischaracterization of what has occurred. The questions are, rather, whether the AFS Agreement applies to areas outside the Reserve and whether the defendants, as members of the Band possessing aboriginal rights are bound by it.

Middle River, North River, etc. are all outside the boundaries of the Reserve. Does this mean that members of the Waycobah Band have no aboriginal right to fish there? If they do – and clearly they do – then it is a question of whether the Chief and Band Council of the Reserve can, through discussion and negotiation with DFO, limit the exercise of these rights (which are communal rights) on behalf of the defendants and bind the defendants to such agreements. [ 100 ] Cases cited by defence concerned alleged breaches of a Band by-law. The issue was whether such by-laws had reach beyond the

territorial confines of a Reserve. The bylaws in question concerned fishing, but that is of no matter here. They might as well have concerned stop signs. Such cases do not offer support for the defence position. Does the Agreement contain any express or implied promise not to lay charges? [ 101 ] The answer to this question is a simple no. There is no suggestion in the Agreement (nor, for that matter, in discussions which led up to it) that the Fisheries Act and applicable regulations would not apply or that penalties for breach would not be sought.

Nothing indicates that DFO ever offered, or that Waycobah ever sought exemption from the application of federal laws. To the contrary, the agreed-upon duties of native Fisheries Guardians included preparation of court briefs and testifying where necessary. [ 102 ] The Parliament of Canada has, with respect to the fishery, enacted a regulatory structure which includes enforcement mechanisms, including the creation of offences and the laying of charges. It is difficult to imagine how it could be otherwise.

The SCC said in Marshall (No.2) supra at par.33 that “ s.43 of the Fisheries Act sets out the basis of a very broad regulatory authority over the fisheries which may extend to the native fishery where justification is shown.” [ 103 ] A 1993 DFO Policy for the management of the aboriginal fishery qualifies the exercise of enforcement functions, an important matter that bears consideration. The Policy never the less contemplates that enforcement will occur. Is there any other agreement respecting the FSC right?

Did the defendants retain any residual right to fish outside the terms of the agreement? [ 104 ] Defence declares a “continued existence” of the FSC right and submits “Waycobah believed that they still had rights to fish salmon outside the terms of the AFS agreement”. I reject this proposition as it pertains to the facts of this case.

I might add that there is no evidence before me that any member of the Waycobah Band, aside from the Defendants, acted as though they has such “outside” rights. [ 105 ] In the first of the series of agreements, dated July 19, 1994, the Band undertook to prepare a “list of persons designated to fish, which may not include all Band members”. Appendix 1 of that document states that “no fishing referred to in the

Schedule shall be carried out under the communal fishing licence for Atlantic salmon other than by a designated person and in accordance with the following conditions.” [ 106 ] Clause 17(

a) of the subject Agreement states “The First Nation warrants that the representative who executes this Agreement . . . has authority to bind the members of the First Nation.” At

Schedule B-1 clause 5(

a) it states “The First Nation will designate all members of the First Nation to fish in the FSC fishery.” [ 107 ] The consultations were not done behind closed doors. There was correspondence between particular people and officials and there were also many meetings involving groups of interested persons. The Waycobah Band Council considered these issues in open meetings on the Reserve. DFO officials met with members of Band Council. [ 108 ] Defence speaks of “the narrow confines of the agreement.” A reasonable

interpretation of the agreement, in the context of the governing legislation and regulations, and in the context of negotiations over the affected fishing right, suggests that it was meant to be exhaustive, though time-limited. It deals fully with where fishing may, and by necessary implication may not, occur. It sets out permitted methods, times, etc. [ 109 ] Defence says that there should be a “side-by-side” approach or

interpretation, with rights and privileges subsisting outside the agreement. One thing which is “side by side” is the regulation of the recreational fishery, but I do not think that there were any aspects of the FSC fishery, as it concerns members of the local aboriginal community, which were left outside the agreement. After discussions, and as implemented by the permissive language of the licence, the parameters of the FSC fishery were clearly defined. There was no residual right to fish outside the ambit of this Agreement.

I see no ambiguities or uncertainties to be resolved, whether in favour of the Waycobah Band or anyone else. [ 110 ] In R. v. Shannos 2002 BCPC 316 the Defendant sold sockeye salmon, which the court assumed he had caught in traditional Gitxsam territory.

An “interim fisheries measures agreement” signed in 1993 stated that “during the 1995 fishing season the GWWA (the First Nations party which included the Defendant) agrees only to fish for salmon in accordance with this Agreement . . . the Plan and fishing licences issued by the DFO and the GWWA.” Despite this the Defendant argued that the Agreement left it open to Mr. Shanoss to rely on any aboriginal right to sell fish he might have notwithstanding the Agreement. The court rejected this argument, saying at para. 26 “the Agreement may well have diminished Mr. Shanoss’ aboriginal fishing rights.

However this diminishment was not imposed upon him unilaterally . . . nor was the diminishment permanent.” [ 111 ] The Defendants possess an aboriginal FSC fishing right. However any “continued existence” of the right resides in the underlying constitutionally enshrined right, which is not altered in any permanent sense by the AFS Agreement. For a limited time their exercise of that right is circumscribed by the Agreement.

PART 3 - THE SIGNIFICANCE OF A VALID AND BINDING AGREEMENT TO THE ISSUE OF JUSTIFICATION The nature of the infringement / limitation [ 112 ] Although included in an “agreed statement of fact”, Crown acknowledged and admitted, for the purposes of this case, an “infringement” in the following terms: “the communal licence conditions which were contravened are prime facie infringements of the defendants’ aboriginal right to fish for food.” Elsewhere on record the Crown made the same admission. Consequently the case proceeded directly to the “justification” stage (see par. 50, above).

[ 113 ] Before considering how the subject Agreement affects application of the Sparrow test and the issue of justification generally, it is important to conceptualize the nature of the FSC right, and the way in which it is here restricted. [ 114 ] In Sparrow the SCC speaks in terms of whether an “infringement” is justified. In the instant case “limitation” of the right may better convey the sense of the situation, given the existence of the AFS Agreement. Where a restriction is unilaterally imposed “infringement” seems more apt because the word has been defined to mean “to undermine, or encroach”.

Such was the situation in Sparrow . Courts may use the terms interchangeably, as for instance in Marshall (No. 2) where the Supreme Court appears to use “limitation” in the sense of ‘infringement” (see extract at par.126, below). [ 115 ] R. v. Lefthand 2007 ABCA 206 concerned treaty Indians alleged to have fished by unlawful means and in a closed area. There, the instrument which restricted the fishing right was a Variation Order (a statutory instrument extending the application of a federal regulation). Here, the instrument which restricted the fishing right was a Communal Fishing Licence.

It too was issued pursuant to federal fisheries regulations but in distinction to the situation in Lefthand , the Licence also arose out of a formal Agreement between the issuer (government) and the affected party (Waycobah).

In essence the Licence was parented jointly by the federal government and Waycobah First Nation, the federal government in the exercise of its mandate to manage the fishery, the First Nation in the exercise of its FSC fishing right, both parties having recognized the primary imperative of preserving the salmon stock. [ 116 ] In Lefthand the Crown admitted that the Variation Order placed a limit on a Treaty right to hunt and fish for food. But admitting this limitation was not construed as an admission of infringement.

The Court reasoned that aboriginal and Treaty rights may have inherent limitations, part and parcel of the right itself, which do not have to be justified by the Crown. Thus it stated at par. 17: . . . the content and scope of the right, and any limitations of the right must be defined. Rights are not absolute, Some have internal limitations, and all are subject to limitations implied by law. Third, the court must determine whether the regulations in question violate the right as defined .

Fourth, assuming there is a violation of the right, has the government justified that violation? [ 117 ] By this analogy it may be possible to construct an argument that the existence of a signed FSC Agreement means that there was an agreed-upon limitation but not an “infringement”, as that term is understood from Sparrow and elsewhere. On this view one would not even get to a justification analysis; the FSC Agreement would operate as an inherent limitation of the right, but not constitute an “infringement”.

Indeed, at par.76 of Lefthand the Court stated that rights cannot be exercised in a way which damages breeding stock or threatens sustainability, and thus that “government regulation on these topics are not infringements at all; they are implied limitations inherent in the rights” (see also par.136 of the decision). By analogy the licence restrictions flowing from the AFS Agreement, enacted pursuant to the communal fishing regulations, would simply be implied limitations which would not have to be “justified” by the Crown. [ 118 ] At par. 175 of Lefthand the Court said “it is uncontested that Lefthand . . . bear(

s) the burden of proving that there has been a prima facie infringement.” The admission by the Crown in the case before me thus appears to go one step further than the admission in Lefthand , beyond admitting a “limitation” of the right to admitting an “infringement” of the right. In doing so, Crown takes on the burden of showing that the admitted infringement was justified. [ 119 ] I accept the admission of an “infringement” for the purposes of this case and consider that the prosecution has adopted a reasonable and sensible position, sparing the Defence the need to prove a prime facie infringement.

In contrast, perhaps, to Lefthand, there can be little doubt, based on case law from this province and all the historical evidence given and endorsed within those decisions, that the Defendants Martin and Googoo had right to fish for food where they did. It was an aboriginal right, protected by s.35 of the Constitution. The complete closure of Middle River was a part of a set of strictures on fishing which allowed for some harvest in two rivers, but severely limited the allowable catch in the rivers which the Mi’qmaq of this area historically harvested for food.

It is commendable that these issues - the existence of the right and its infringement – were not re-litigated. These legal realities entered the fray as “facts”. [ 120 ] It is also important to keep in mind the difference between (

i) an infringement of a right, and (ii) the nature and scope of the right itself. The latter may develop over time and thus come to be more clearly defined and understood. The former are restrictions on the exercise of the right which are not necessarily fixed or permanent. They are contingent on current circumstances. They must be justified and continually justified. The justification for governmental infringement of a fishing right may disappear with improved fish stocks, or reappear with changes in technology. [ 121 ] In argument Defence suggested that the Crown is trying to whittle away at a recognized right.

It appears the Defence exaggerates the significance of the AFS interim agreement so as to make it more susceptible to attack. Crown submitted that “justifying an infringement does not mean altering the underlying right.” I agree with this statement. [ 122 ] Some courts have said that an aboriginal right is “suspended” or “waived” when an Agreement such as this is in effect, or a restriction imposed. Perhaps it is better to say that the exercise of the right is circumscribed for a limited time. [ 123 ] Morley Googoo said that his people were not meant to be “locked in” by the AFS Agreements.

This is correct in the sense that they are short-term agreements which do not impact on the nature of rights which might be negotiated within the Made in Nova Scotia Process. This is incorrect in the sense that the AFS agreements, in and of themselves, are unenforceable. Viewing the AFS Agreements in context leads one to think that they might indeed be acted on and enforced, arising as they do within a broader regulatory regime applicable to all Canadians, utilizing long-standing stock-management tools such as regulations and licences.

Does the existence of the Agreement obviate the Sparrow justification requirement? [ 124 ] Having decided that the subject Agreement is contractually valid and is enforceable against the Defendants (via the accompanying Licence and applicable legislation and regulations) the issue becomes: how does this affect the “justification” requirement set out in Sparrow ? (outlined at par. 51 above) [ 125 ] Crown submits

that the Sparrow test for justification applies only in those circumstances where unilateral action on the part of government infringes upon an established aboriginal right to fish for food. Conversely, in the face of a bilateral agreement which allows for government action that infringes upon an established aboriginal right to fish for food, the justificatory standard outlined in Sparrow does not have to be met.

In the case at bar, DFO and Waycobah First Nation reached an agreement which provided for the imposition of the contravened licence conditions that infringed upon the defendants’ aboriginal right to fish for food. As stated, the Crown’s position is that the infringements are justified by virtue of this agreement and, as such, the Sparrow test for justification does not apply.

In other words, only in the absence of an agreement would the adequacy of the justification for the contravened licence conditions have to be assessed in accordance with the two-part Sparrow test. [ 126 ] So, although the Crown has acknowledged an infringement it tenders the subject Agreement as sufficient proof of justification.

It points to this extract from Marshall (No.2) supra at par. 43: Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights . . . if the consultation does not produce an agreement , the adequacy of the justification of the government’s initiative will have to be litigated in the courts. (emphasis added) [ 127 ] Clearly, where there is the imposition of a restriction on an aboriginal right, justification must be shown.

But where there is an agreement to limit the right, valid in contractual terms, does that mean that Crown need not prove justification, that it becomes moot? Does an agreement mean that the justification test is modified in some sense? Here are three possible approaches – the first being the Defence position, the second the Crown position, and the third an approach which I endorse: (

i) The justification issue remains fully alive, to be decided in accordance with the two-part Sparrow test. The agreement is reduced to being simply another piece of evidence. The Crown is not spared the onus of proving justification. (ii) The justification issue is completely moot. The signed agreement is itself justification. (iii) The Agreement is presumed to fulfill the justification requirement unless Defence can prove that the Crown failed to act in good faith. (i) - rejected [ 128 ] I reject the Defence position set out in (

i) for the following reasons. [ 129 ] Defence submits “Crown in this case is attempting to introduce viva voce and documentary evidence that is derived from the AFS program as a part of its attempt to justify an admitted infringement of the s.35(1) aboriginal right to fish.” To say that a signed Agreement between Waycobah and DFO is “documentary evidence derived from the AFS program” is to deny its central essence.

Crown is actually saying that because DFO reached an agreement with Waycobah on salmon fishing, wherein there is a temporary limitation (infringement if you will) of the FSC right, it need not prove justification of such limitation.

That strikes me as an eminently sound and sensible position. [ 130 ] If the “Honour of the Crown” requires that no agreement achieved between the government and an aboriginal community is valid unless the Crown proves, in addition to the usual contractual elements, that there was “adequate consultation” then the very thing which the SCC hoped to see in Marshall – resolution by negotiation and agreement rather than resolution through litigation – will be thwarted. The law should proceed in a way which supports agreements freely entered into.

The law should not proceed in a way which deprives them of meaning and certainty. The law should not presume that one of the parties is inadequate to the task of taking decisions, entering into agreements, and assuming responsibility for them. [ 131 ] While the Crown should operate with openness, candour and honesty it need not lead the aboriginal community by the hand. It need not act paternalistically. Bands should be accorded autonomy to make decisions and choices of their own, which will inevitably involve compromises and resolution of conflicting opinion within aboriginal communities themselves.

Fundamentally important to the ongoing process of negotiating the nature and scope and exercise of aboriginal rights is the idea that binding agreements are possible, with certainty of outcome, so that resolution can be effected and progress achieved in the management of a particular resource. If every agreement can be reopened, if every contract is revisable, then there will be little incentive to negotiate in the first place. [ 132 ] Broadly stated, the possession of a right includes the choice not to exercise it, as well as to cede some aspect of it to another on some clear terms, for some quid pro quo .

From other cases in this court I know that Bands exercising a commercial fishing right have chosen to hire non-native crew for their expertise.

Whether Waycobah was, in this case, granting the economic importance of recreational salmon fishing to local tourist operators, or whether it chose simply to appease an interest group (given assurances of the very small mortalities associated with a recreational hook and release fishery), should it not be free to deal with its inherent rights in this fashion? [ 133 ] As between DFO and Waycobah, there was not the inequality of bargaining power which may have existed in the past. The evidence shows that Waycobah had access to legal counsel.

The Cape Breton Bands showed an awareness of their rights and a willingness to assert their interests.

[134] Respect for the aboriginal right, and the honour of the Crown, do not equate to an insistence that the right be exercised to the full. Aboriginal communities may well and freely choose to limit the right, to accommodate other interests, to defer to other interests fromtime to time, to negotiate between stakeholders, all without compromising the basis of right itself. To say otherwise would seem to arguefor less, not more autonomy for First Nations. [135] It is perhaps worth remembering that in Sparrow there was no agreement between the Musqueam Band and DFO.

The case didnot itself decide whether the analysis it set out was necessary or even appropriate in the presence of a negotiated agreement. (ii) – essentially correct, but too strict [136] I think the Crown position set out in (ii) above is essentially correct, but should not stand as a general proposition withoutqualification. [137] In a case such as this there should be no need for the Crown to prove compliance with the Sparrow test, as it would whenever arestriction is unilaterally imposed. However, that should not completely exhaust the justification question.

The conduct of the partiesduring negotiation should not be completely exempt from legal scrutiny. [

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