Here’s the decision, which provides a useful breakdown of interpreting aboriginal and treaty rights, kinship reciprocity and sheltering defenses.
It’s been a long time coming, with the events in question having occurred during the Winter of 2001/2002 and after the death of one of the defendants.
“In light of the evidence presented in this case, the defendants have not been able to establish a defence based on s. 35 of the Constitution Act, 1982 with respect to the charges under the Wildlife Act. The defendants’ treaty right claim must fail as they have not established, pursuant to the requirement laid out in Bartleman, that Cowichan Lake is Songhees, Tsartlip or Nanaimo traditional territory. The defendants’ argument of a treaty right to hunt at Cowichan Lake pursuant to kinship reciprocity is of no assistance to them because the concept of kinship reciprocity cannot overcome the requirement that, for land to be considered traditional territory, the defendants’ ancestors must have in fact hunted at the relevant location. The defendants’ claim of a species specific right to hunt is also of no assistance in this regard.
Even if the defendants had been able to establish a treaty right to hunt at Cowichan Lake, the defendants’ treaty claim would not have succeeded as I have found that by not hunting in a manner consistent with Aboriginal practices regarding conservation nor with the protocols surrounding the alleged right of kinship reciprocity, the hunting fell outside the scope of the treaty right the defendants claimed.
The defendants’ alternative claim of a traditional Aboriginal right must also fail as defendants Morris Jr., George and Sam have not established that kinship reciprocity as practiced within Coast Salish culture can be considered an Aboriginal right. Even if kinship reciprocity can be considered an Aboriginal right in this context, Morris Jr., George and Sam’s claim based on kinship reciprocity requires proof of an underlying Cowichan Aboriginal right to hunt at Cowichan Lake, which has not been established. Defendant Edwards’ claim of an Aboriginal right to hunt at Cowichan Lake based on his membership in the Cowichan First Nation must therefore also fail. Furthermore, by failing to respect the need for conservation or the traditional protocols associated with kinship reciprocity, the defendants breached the internal limits which would attach to the Aboriginal right asserted.
The final defence available to the defendants, that of sheltering, has not been established as there has been insufficient evidence to allow me to conclude that, even if an underlying Cowichan or Ditidaht claim to hunt at Cowichan Lake were established, either First Nation possesses an Aboriginal right to extend their rights to others through sheltering. Because sheltering relies on an invitation from the host nation and the defendants received no permission from the Cowichan and breached the limited permission received from the Ditidaht, sheltering could be of no assistance to the defendants even if a Cowichan or Ditidaht right to shelter others had been established.
As the defendants have not established an Aboriginal defence to their breaches of the Wildlife Act, convictions will be entered on those counts the Crown was able to prove beyond a reasonable doubt. Finally, it goes without saying that the legitimate interests of provincial regulations aimed at the conservation and preservation of fragile resources can best be balanced with valid Aboriginal rights where the parties resolve conflicts over limited resources by developing a mutually agreeable framework, such as what has occurred with respect to elk hunting on northern Vancouver Island. When government and First Nations are able to agree to such an understanding, it serves not only the interest of First Nations people but also the public-at-large both in the near term and for future generations.”
Turtle Talk 