In R. v. Quipp, the British Columbia Court of Appeal upheld convictions entered in 2008 against members of Cheam First Nation and Union Bar First Nation. The events leading to their convictions occurred in 1999.
1 The appellants were charged with unauthorized fishing on the Fraser River. They had been fishing at times when closures had been imposed by the Department of Fisheries and Oceans (“DFO”). In trials held respectively before Judge MacDonald and Judge Gill of the Provincial Court, convictions were registered against the appellants. The cases thereafter went on summary conviction appeal to D. Smith J. who sustained the convictions.
2 In these cases, most of the factual circumstances are undisputed. At the trials, the appellants acknowledged that they were fishing at the material times otherwise than under the authority of a licence and the Crown acknowledged that it had infringed the appellants’ Aboriginal right to fish for food, social, and ceremonial purposes. The issue that divides the parties is the question of justification based on conservation considerations.
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48 In summary, where the Crown seeks to justify the infringement of a s. 35(1) Aboriginal right, the two fundamental questions for the court are (1) was the Crown acting in pursuit of a valid legislative objective? And (2), was the Crown’s conduct consistent with the fiduciary relationship between the Crown and Aboriginal peoples? Where the right in issue is a right to fish for FSC purposes and the infringing conduct is alleged to have been in pursuit of conservation, Sparrow demands that the FSC fishery be accorded priority of allocation. As the appeal judge correctly noted, in assessing whether the Crown has met the burden of justifying an infringement of an Aboriginal right, the standard by which the Crown’s conduct will be evaluated is one of reasonableness in light of the circumstances that existed at the time of the infringement: Douglas at para. 31; Aleck at para. 47, citing R. v. Nikal, [1996] 1 S.C.R. 1013 at para. 110.
49 In arriving at her conclusion that the appellants were not entitled to priority in time, the appeal judge relied on para. 54 of Douglas 2007 in her reasons on the Summer Run appeal at para. 40:
It is also clear from Douglas at ¶54 that the aboriginal right of priority to the fish does not include a right of priority in time to access the fish. Priority in time would give the aboriginal fisheries “an exclusive food, social and ceremonial fishery, regardless of need and abundance of stock”, which “cannot be the intended result of Sparrow”.The appellants complain that this passage is categorical. They say it precludes the possibility that the FSC fishery be accorded priority in time in some circumstances. I do not agree.
50 The appeal judge was well aware that the FSC fishery must be accorded priority in time in some circumstances. In the related appeals in R. v. Tommy, 2008 BCSC 1095, the appeal judge entered acquittals on two counts of fishing without a licence on the basis that, in the circumstances, the honour of the Crown demanded that the FSC fishery be accorded access prior to any recreational fishery. The charges related to the 1999 chinook salmon fishery. At the outset of the 1999 season, DFO did not expect chinook returns to be sufficient to meet Aboriginal FSC needs. DFO nevertheless permitted the recreational fishery to retain chinook. The appeal judge said:
In the circumstances of these appeals, where there was insufficient fish to meet the First Nations’ food, social and ceremonial needs, I am of the view that all of the available Chinook had to go to the First Nations, regardless of the minimal impact the recreational fisheries may have had on the stock. This was necessary in order to guarantee the appellants their constitutional right of priority to the fish in the circumstances that existed and were known to exist before the commencement of the 1999 fishing season. [At para. 83.]51 She distinguished the circumstances in the Early Stuart and Summer Run appeals on the basis that, at the time DFO permitted recreational and commercial access to those runs, it reasonably expected sockeye returns would be sufficient to meet the Aboriginal FSC allocation. As this distinction demonstrates, the appeal judge appreciated that the FSC fishery may be entitled to priority in time in some circumstances. In my view, she correctly apprehended the doctrine of priority.
52 These appeals do not permit this Court to review all of the findings of the appeal judge. In the course of her reasons for judgment, the appeal judge arrived at a number of conclusions on issues such as whether there had been as little infringement as possible, whether consultation had been adequate, and whether the appellants were entitled to compensation. These conclusions are beyond the scope of these appeals, which are limited to the issue on which Neilson J.A. granted leave to appeal, the question of priority in time.
53 I would dismiss the appeals.
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