IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 052 Date: September 28, 2018 Information: 24004723 Location: Canoe Lake Between: Her Majesty the Queen and Marcien Richard Desjardin Appearing: R. James Fyfe For the Crown Dwayne J. Stonechild For the Accused JUDGMENT D.A. LAVOIE, [1] The accused stands charged as follows:that on or about the 15 of May, A.D. 2015 at Jans Bay, in the Province of Saskatchewan did unlawfully fish for or catch and retain any species of fish in the waters of Jans Bay at approximately 55°10' N 108°08' W, Wepooskow Bay at approximately 55°12' N 108°07' W, and Wepooskow Narrows of Canoe Lake at approximately 55°10' N 108°09' W, all lying within Townships 71 and 72, Range 14, all West of the Third Meridian, and including all waters of Canoe Lake lying within a radius of 2.4 km from the intersection of the centre-line of Wepooskow Narrows with the easterly bank of Canoe Lake at approximately 55°10'30" N 108°08'50" W, contrary to: section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, made pursuant to The Fisheries Act, RSC 1985, c F-14. Authorities Considered by the Court 1) Treaty No. 10, August 28, 1906 2) The Saskatchewan Natural Resources Act, SC 1930, 41 3) Saskatchewan Fishery Regulations, 1995, SOR 95/233 4) Section 35 of the Constitution Act, 1982 5) Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 6) Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 7) Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 8) Horseman, 1990 CanLII 96 (SCC), [1990] SCR 901 9) Badger, 1996 CanLII 236 (SCC), [1996] 10) Marshall, 1999 CanLII 666 (SCC), [1999] SCR 533 11) Couillonneur, 2002 SKPC 10 (CanLII) 12) Couillonneur, 1996 CanLII 12082 (SKPC) 13) Goodstriker, 2012 ABPC 319 (CanLII) 14) Lefthand, 2007 ABCA 206 (CanLII) 15) Bruce McKenzie, 2006 SKPC 51 (CanLII) 16) Kristjan Pierone, 2018 SKCA 30 (CanLII) 17) Keepness 1999 CanLII 12424 (SK PC), 1999, 187 Sask (SKPC) 18) Dubois Saskatchewan, 2018 SKQB 241 (CanLII) 19) Jesse Bitz, 2009 SKPC 138 (CanLII) 20) First Nation of Nacho Nyak Dun Yukon, 2017 SCC 58 (CanLII) 21) Ktunaxa Nation British Columbia (Forests Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) 22) Haida Nation British Columbia, 2004 SCC 73 (CanLII) 23) Ron Laviolette, 2005 SKPC 70 (CanLII) Introduction and Issues [2] The accused gave Notice under the The Constitutional Questions Act 2012, SS 2012, C-29.01 setting forth the following: Information: #24004723 TAKE NOTICE THAT PURSUANT to section of the Constitutional Questions Act, Ch. C-29.01, SS 2012, you are hereby given Notice that constitutional question will be argued by defence on the validity of section 7(2)(b) of the Saskatchewan Fisheries Regulations, 1995, made pursuant to The Fisheries Act, RSC, 1985, F-14 that purports to: a.) Restrict the accused’s Treaty and Aboriginal right to fish for food in the Jans Bay (Canoe Lake) geographical area as defined by the Saskatchewan regulation; b.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected by Section 35(1) of the Constitution Act, 1982. c.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected, recognized and affirmed by section 25 of the Canadian Charter of Rights and Freedoms. The particulars of the challenge are as follows: That the accused is status Treaty Indian, with Aboriginal and Treaty 10 rights to fish for sustenance; That on May 15, 2015 the accused was seen fishing from an unmotorized boat with his child, close to shore and the accused’s residence, with two poor quality nets in restricted area. It seems to be uncontroverted evidence that the accused was fishing for food. The accused was caught with eight sucker fish, two walleye and one northern pike; Jans Bay is approximately 15 meters behind the residence of the accused on the Canoe Lake First Nation, and is the preferred area for the accused to fish for food. The accused is unemployed and lives in low income household; and Jans Bay was originally closed on April 19, 1993 for regulation because of the overfishing impact of the local commercial fishery industry. This cannot be relied on to infringe upon the Treaty right to fish for food twenty-three years later, when there has been no recent studies, information, consultation or evidence that the infringement is reasonably justified. FURTHER TAKE NOTICE that the remedy the accused will be asking for is stay of the charge. [3] During the course of the trial and in written and oral argument defence somewhat expanded the scope of Constitutional and Treaty rights issues to be considered beyond what was set out in the written Constitutional Notice. The following is summary of the issues that arose and questions to be determined or adjudicated on by the Court: 1) The broad issue is whether the accused, as Treaty Indian fishing for sustenance/food was bound by section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, SOR 95/233made pursuant to the Fisheries Act, RSC, 1985 F-14?; 2) If he was so bound, does the regulation violate his Treaty right to fish for sustenance/food?; and 3) If his Treaty right was violated, can the regulations be saved or justified by the test set forth by the Supreme Court of Canada in Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 [Sparrow]? [4] The following is summary of the evidence and legislative provisions presented before the Court. [5] Mr. Desjardin is Treaty Indian and on May 15, 2015 he was fishing for food in Jans Bay in the Province of Saskatchewan from boat located within few hundred meters of his house which he built on the shores of Jans Bay around 1991. These waters at the time, were closed to all fishing, including Treaty sustenance fishing pursuant to the Saskatchewan Fishery Regulations, 1995, SOR 95/233. He was using net and had caught eight white sucker fish, two walleye and one northern pike. [6] He in essence admitted to the actus reus of the substantial charge but puts forth as defence his Treaty rights to fish for food in any water and at any time he so chooses. [7] Defence called three witnesses. However, the main constitutional and fisheries evidence was given on behalf of the Crown by Mr. Chad Doherty who was qualified as an expert in fish biology with considerable experience and educational background in fisheries management and ecology. [8] Canoe Lake is fairly large lake the size measuring approximately 14.5 km 18 km, which is little over 21,000 hectares or over 210 square kilometres. Numerous fish population studies describe it as eutrophic lake which is ideal for sustaining large fish populations. [9] The closed fishing areas in question in these proceedings are Jans Bay, Wepooskow Bay and Keeley River which are interconnected to Canoe Lake by the Canoe Narrows. [10] summary of Mr. Doherty’s evidence in relation to the closed fishing areas is that, these water bodies are the main spawning areas for all fish populations in Canoe Lake. The fish congregate in an area at the mouth of Canoe Narrows then move into Jans Bay and Keeley River to spawn. [11] During this process and time period the fish congregate into small areas and are very vulnerable to overfishing. Transcript 197, lines 30 34 Can you explain why that area is closed, the whole area? So so the actual bay itself is closed, including the actual radius that goes into the lake. It is known area for the walleye spawning stock to congregate, making it unique and important area for conservation and sustainable management for the Canoe Lake walleye population. Transcript 198, lines 33 41, 199, lines Sir, just one of the things that occurs to me when look at this geography is that there’s lake, and then there’s little Narrows, and then big bay, and then river. Can you give us any idea of of whether that’s something that you see with other lakes across the province, or how does it’s just it it’s something that I’ve never seen before, but haven’t looked at lot of lakes, like you have. No. Certainly, having an area such as this that is known for the congregating and staging of walleye before going in is an important and and unique area, particularly on Canoe Lake. There are other lakes that will have areas that the walleye populations will stage in front of rivers before moving, but certainly this is an unique and important area on Canoe Lake. Transcript 266, lines 17 30 MR. FYFE: just want to give you an opportunity to summarize. There’s been lot of information that you’ve provided to the Court. And want to just give you an opportunity to, kind of, summarize lot of it now. What is your view on whether the current closure needs to be in place or not into the future? Certainly. The the current closure the recommendation of the 2011 report and its stance today is that the current closure needs to be maintained. The Jans Bay area, including the extension into the river, the or into the lake the radius. And this is directly related to the closure on the Keeley River, as well. Is that it’s unique unique area that is known to have walleye spawning stock congregation. The closure represents conservation measure that is in support of the walleye population recovery efforts and future sustainability of the walleye population for the benefit of of the users of the lake. Transcript 268, lines 35 41, 269, lines What what would, in your opinion what what’s your view of opening up the closed area only to sustenance fishing, and leave it closed for commercial and angling? That would given the nature of what we know about the spawning walleye stock congregating in that area, that that would that would jeopardize the walleye population recovery efforts, future sustainability, and the relationships that have been established with multiple users of the lake in in with regards to overall fisheries management of Canoe Lake. Relationships what do you mean by that? Relationships well, the the support that we have received from from the Band, chief-and-council regarding maintaining of the closure, as well as the support from the commercial Co-op regarding the the closure, as well. And and the the reduction to 5,000-kilogram quota for the commercial quota or or commercial fishery for walleye was done in discussions with the commercial Co-op. [12] The Agreed Statement of Facts confirmed Mr. Desjardin’s Aboriginal Treaty status and right to sustenance fishing. The extent of that right is confirmed by his common law Aboriginal rights set forth in numerous decisions of the Supreme Court of Canada together with written treaties, acts and regulations. [13] The genesis of this is the written text of Treaty No. 10 signed at Isle-à-la-Crosse on August 28, 1906. [14] The signatories to the same were “Chipewyan, Cree and other Indian chiefs and headmen on their own behalf and on behalf of all the Indians whom they represent” which included the Canoe Lake Band members who historically inhabited the shores of Canoe Lake, Jans Bay, Keeley River, and the Wepooskow Bay which are relevant to these proceedings. [15] Other relevant texts of Treaty No. 10 set forth the following: and other Indian inhabitants of the territory within the limits hereinafter defined and described by their chiefs and headmen And whereas the Indians of the said tract, duly convened in council at the respective points named hereunder and being requested by His Majesty’s said commissioner to name certain chiefs and headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon and to become responsible to His Majesty for the faithful performance by the respective bands of such obligations as shall be assumed by them, And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the territory surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country acting under the authority of His Majesty and saving and expecting such tracts as may be required to as may be taken up from time to time for settlement, mining, lumbering, trading or other purposes. [16] The wording of the representatives of the Aboriginal peoples of Treaty No. 10, has some relevance to subsequent documents and written representations made on behalf of the Canoe Lake Band members in relation to Treaty fishing rights on Canoe Lake and its interconnected waters and tributaries. [17] Other historical legislative documents include The Saskatchewan Natural Resources Act, SC 1930, 41; s. 35 of the Constitutional Act, 1982; and the Saskatchewan Fishery Regulations, 1995, SOR 95/233. See also: Sparrow; Badger, 1996 CanLII 236 (SCC), [1996] SCR 771 [Badger]; Lefthand, 2007 ABCA 206 (CanLII) [Lefthand]; and Kristjan Pierone, 2018 SKCA 30 (CanLII). [18] Over the years Canoe Lake proved to be very important resource for economic activity and sustenance food source for the Canoe Lake Band members. The three main types of fishing on the lake are significant commercial fishery, significant angler/sport/outfitter fishing and traditional Treaty sustenance fishing. Transcript 204, lines 24 29: …that the walleye numbers were low, based on your results. Why is there such concern about walleye? Walleye are of primary interest to multiple users of of the lake. Canoe Lake is managed as multi-use lake. It has sustenance fishing, commercial fishing, recreational fishing, outfitting. And walleye is one of the primary species for for all of those. [19] The evidence shows Treaty sustenance fishing is the much smaller portion of the total fish harvest but the opinion of experts gleaned from numerous fishery studies on the lake, is that sustenance fishing would have definite negative impact on total fish numbers if it was allowed in the Jans Bay no fishing zone. [20] The commercial fishery has been such significant part of Canoe Lake such that commercial fishery co-op was established in the 1950's. From its inception to this day the co-op, with the authority of the provincial government, manages and has sole discretion in determining who gets commercial fishing licence. [21] Tyler Pouteaux, Conservation Officer with the Provincial Ministry of the Environment gave evidence in relation to his knowledge of the commercial fishing co-op. His evidence remained unchallenged by any defence evidence. They monitor and enforce fishing regulations around Canoe Lake all year round. [22] Since its inception the co-op decides who is eligible to acquire commercial licence. To his knowledge the licence holders are all of status First Nation or Metis heritage from Jans Bay, Canoe Lake/Narrows and Cole Bay communities. The Ministry gets list each year of who has licences. None are non-status or non-Metis. All nets on Canoe Lake are monitored regularly and on daily basis during commercial season. Individuals tag their nets with their commercial licence number or their Treaty card number. [23] They are in regular contact with representatives of Canoe Lake Band office. To his recollection at no time has anyone asked to lift the ban on sustenance fishing in Jans Bay, the waters relevant to these proceedings. Other than the Jans Bay area, Treaty sustenance fishing, with no limits, is allowed all year round on Canoe Lake. [24] The province has been significantly involved with the Canoe Lake Band in monitoring and managing the Canoe Lake Fishery since the 1930's. [25] The evidence discloses that the fish population of Canoe Lake were biologically tested in 1957, 1968 and 1973. The Crown filed written reports of significant testing studies done in April 1969, November 1973, April 1985, February 1990, July 1996 and June 2011. [26] The essence of the studies and the expert opinions formulated from them establishes number of observations: 1) the commercial fishery has always been significant part of Canoe Lake. The records show that the Commercial Fishery catch varied from year to year since 1934-35. The total catch achieved total numbers of 307,790 pounds with 162 licences in 1962-63; 2) upgrading of the provincial highway system in the 1960's increased access to Canoe Lake and the number of sport and outfitter recreational anglers; 3) the number of licences remained high in the 1990's and peaked at approximately 150 in 2001-02; 4) to no one’s surprise the total commercial fish harvest grew exponentially with the number of licences. Coupled with that was the increase in sport fishing from the 1960's on. This resulted in extreme stress on the total fish population of the lake with significant reductions in the same; and 5) this resulted in constant monitoring of fish populations coupled with periodic changes in regulations reducing the commercial and angler fish harvesting quotas. [27] Since 1995 commercial and recreational fishing was closed for the entire lake from March to May 14 each year. Limits for walleye for anglers was reduced from 10 to five to three and today to one per day. Other fish harvest numbers were reduced as well. [28] This did not go unnoticed by the Canoe Lake Band members. The evidence presented to the Court is relevant to the final analysis of Treaty fishing rights in this case. [29] letter dated April 19, 1993, signed individually by the Canoe Lake Chief and Council and the Canoe Lake Fisherman’s Coop was received by the Government of Saskatchewan, and read as follows: April 19, 1993 Dear Sir: On the above date, joint meeting was held between the Canoe Lake First Nation Council and the Fisherman’s Cooperative to discuss Closure of the Narrows and Jans Bay. The Narrows in particular has been concern in recent days due to overfishing by local residents along with allegation of illegal sale of fish to outside and out of province agencies. Those matters prompted the call for the meeting in addition to the fact that these locations are fish spawning areas and the fish are running at this time of the year and this added pressure by anglers will diminish our stock. The consensus of the Members present agreed to re-activate or continue the policy and recommendations agreed upon as per letter dated December 16, 1980 by the Canoe Lake Commercial Fisherman. This will mean the Closure of Jans Bay and the Narrows area from all fishing all year. The Narrows shall be closed within one mile from the shoreline. Canoe Lake Chief and Council Canoe Lake Fisherman’s Coop [30] The result was the passing of regulations by the provincial government in 1995 closing Jans Bay and other waters to all fishing all year round including one mile radius at the Narrows. Today that radius is 1.5 miles. [31] An almost identically worded letter dated October 27, 1997 was also received by the Ministry. It was also signed by the Chief and Council and the Cooperative. [32] The significant difference from 1993 to 1997 was suggesting “the Narrows shall be closed within one and half miles from the shoreline”. [33] This was an increase from the one mile radius in the 1993 letter. [34] The Crown evidence was to the effect that these letters were relied upon by the Government of Saskatchewan each time the applicable legislation was established or amended. [35] For whatever reason copy of the letter dated December 16, 1980 referred to in the 1993 and 1997 letters was never located by any of the parties. Suffice to say that the inference to be drawn is that closure of Jans Bay to “all fishing” appears to have been an issue, within the purview and discussion of the Canoe Lake Band and Council since at least 1980. [36] Norman Opekokew, Conservation Officer with the Saskatchewan Ministry of the Environment gave considerable evidence in relation to fishing in Canoe Lake. It should be noted that all his evidence remained uncontradicted by any defence evidence. He is status member of the Canoe Lake First Nation Band and was raised in that area. His parents still live in the community. He was the officer who investigated and charged Mr. Desjardin with the within offence. [37] His evidence in relation to Jans Bay being closed to Treaty sustenance fishing reads as follows: Transcript 346, lines 14 23, 31 37, 39 41, 347, lines Okay. Now, you’re aware of the the current closure on Jans Bay and the the Keeley River and then the area that juts out into the lake, you’re you know about that closure, of course? Yes. As well as at Weepooskow Bay. Okay. It’s all one all closure. Yeah. And we and and everybody here is familiar with that closure Okay. So you would have you would be aware of that closure in your capacity as conservation officer with the Ministry? Yes. Were you aware of that closure as member of the community, before you were an officer with with the Ministry? Yes. Okay. Can can you describe that for the Court? Were you able to what what to your understanding, when did that closure come into place? How long has it been in place, to your recollection? As long as can remember. don’t remember the details because never did pay attention too much when it was closed. just know that my relatives so my like, my grandfather and my uncles told us that we couldn’t fish there. And we were not allowed to question our uncles and aunts, grandfathers. [38] He then explained how after he charged Mr. Desjardins he spoke to the Band Chief and his brother, Denis Opekokew, who is employed as the Justice Worker for the Band. He was seeking support and clarification in relation to Jans Bay being closed to sustenance fishing. This resulted in him receiving letter dated November 9, 2016 written on Canoe Lake Cree First Nation letterhead which states: November 9, 2016 To Whom it may concern: We the Canoe Lake Cree First Nation and our members do support JANS BAY closure for all fishing. Thank you for your immediate attention to this important matter. If you require further information and/or clarification, please do not hesitate to contact myself and that above number. On behalf of the Chief and Council, Wilfred Iron, Councillor Canoe Lake First Nation [39] He estimated there are 600 700 residents on the Reserve and 300 400 residents at Jans Bay and Cole Bay. There is an annual meeting with the Ministry and the Fishing Co-op to establish commercial fishing dates for Canoe Lake and surrounding waters. [40] To be member of the Co-op you must be resident of the community and one of your parents must have come from one of the three communities. All Co-op members must be Treaty or Metis status members. [41] Officer Norman Opekokew also knows the accused and is familiar with the location of his house. He estimates the accused can access Canoe Lake proper which is open to unlimited Treaty sustenance fishing all year round. His estimates of travel time are as follows: Transcript 360, lines 15 19 MR. FYFE: How far is it drive from the accused’s house to an area any area on Canoe Lake that isn’t subject to the closure? How far would it take person to drive? It looks like about five-minute drive. And if you go by boat, through Jans Bay, through the Narrows, maybe ten minutes, 15 minutes [42] Mr. Joseph Guy Lariviere testified for the accused in relation to the 1993 and 1997 letters. He was Chief of the Canoe Lake band from 1992 to 2010. He has three years of University education at the University of Regina (1971, 72 and 73). He in fact signed the 1993 and 1997 letters as Chief of the Canoe Lake Band. He is presently Senator of the Federation of Sovereign Indian Nations of Saskatchewan. He confirmed the meeting with the Fishing Co-op, which was the genesis for the two letters. [43] His explanation was as follows: Transcript 46, lines 18 28 Oh, okay. So there so there came time in in in the in 1993 when when these two parties here, the the the the chief-and-council and the and and the Fishermen’s Co-op these two parties met. And there came time where they decided that that that that conservation efforts are needed in in Jans Bay? Yes. Why did that happen? Well, just just because what what had said earlier. They they wanted to conserve the fish. They they didn’t want to have they didn’t have the the lakes over over-fished. [44] He confirmed that the members of the Co-op were all band members. In fact the Co-op built fish processing plant on the shores of Canoe Lake with the support of Band Council. He then went on to interpret the wording of “all fishing” in the letters to apply only to commercial fishing and not “Treaty sustenance fishing rights”. [45] From his evidence it appears the letters came from initiatives of Band Council and not at the request of the Provincial Government. He confirmed the Chief and Council are usually the main authority for band members. He also confirmed concern at the time that “there was overfishing by local residents.” [46] In the end Mr. Lariviere was very aware of the conflicts he faced in relation to the wording “this will mean the closure of Jans Bay and the Narrows area from all fishing all year” and his attempt to explain this did not include “Treaty fishing rights”. [47] It was also very clear that he understood the difference between the words “commercial fishing”, “Treaty fishing” and “all fishing”. Further he stated: Transcript 69, lines 28 39 Are you aware of any documents from chief-and-council ever provided to the Government of Saskatchewan in which chief-and-council objected to the Government closure or expressed any concerns about the closure? No, I’m not aware of that. No. And so, again, you were you were chief from 1992 until 2010? That was it, yeah. And at no time during that period that you were chief did you ever write letter or make phone call to representatives of the Government of Saskatchewan expressing your concerns about the closure? Yeah. no, can’t remember. If if did, don’t don’t remember. [48] In the end Mr. Lariviere’s evidence in trying to interpret the letters was of little assistance to the Court. His recollections at the time of signing the letters were somewhat selective and the Court finds it can place little weight on his interpretation of the wording found in the letters. [49] Mr. Francis Xavier Iron, who is the present Chief of the Canoe Lake Band also testified in relation to the November 9, 2016 letter. From his evidence he clearly understood the difference between commercial fishing and “Treaty Sustenance Fishing Rights”. He acknowledged the 1993 and 1997 letters did not differentiate between the two and referred to “all fishing” and could be interpreted to prohibit sustenance fishing by local residents. [50] He also confirmed the November 9, 2016 letter from the Band was signed by Council member and was provided to the Government. He was aware of both the charges against Mr. Desjardin and the 2016 letter. He acknowledged since then he has not initiated any contact with Government nor within Band council to retract the letter or proffer different wording for the letter. [51] He himself knows of the Jans Bay closure and does not fish in those waters. He has always been aware of the Jans Bay closure. His response to the same is as follows: Transcript page 159, lines 21-24, 160, lines 17 And during any of the time that you’ve been in First Nation government, either as counselor or as as Chief, have you expressed any concerns or objections to government about the closure? No. MR. FYFE: So we’ll just put that aside for now. When you were councillor. What about about as Chief, would you have had the capacity to express an objection or concern with anything that Government was doing, whether it’s the closure or anything else? No. But they’ll be getting it now. You’re beginning it now? Oh, yeah, it’ll come. Oh, it will come? Okay. As result of this litigation? No, no. Just it’s such big issue, that we should have addressed it long time ago. [52] Mr. Desjardin gave evidence in his own defence. At the invitation of defence the Court visited his residence and viewed the location where he was fishing on May 15, 2015. summary of his evidence is as follows: he is age 62 and has fished and hunted all his life. On the date in question he was fishing for food for their evening meal. Over the years he had different employment including heavy equipment operator. He owns truck and often transports his boat to Canoe Lake, which is five minute drive, and other nearby lakes to partake in sustenance fishing. He has certain pension income and his wife is also employed. As he ages his preference is to fish in Jans Bay, however he can clearly access other bodies of water to fish. Analysis and Conclusions [53] Mr. Desjardins admits to the actus reus but puts forth his Treaty right to fish wherever and whenever he wants. The onus and evidentiary burden to prove violation of his Treaty rights shifts to Mr. Desjardin to prove the same on balance of probabilities. (Sparrow at para 112). [54] His Treaty right to fish is expressly subject to government regulation within the wording of Treaty No. 10 “subject to such regulations as may from time to time be made by the government.” See also: Goodstriker, 2012 ABPC 319 (CanLII) [Goodstriker]; Lefthand Bruce McKenzie, 2006 SKPC 51 (CanLII) [McKenzie]; and Kristjan Pierone, 2018 SKCA 30 (CanLII) [Pierone]. [55] In other words, the right to fish is internally limited by the scope of the regulations closing Jans Bay to all fishing. [56] The Alberta Court of Appeal’s decision in Lefthand is closely on point. In Lefthand Justice Slatter held that conservation and safety regulations are contemplated by the Treaties as an internal limit to fishing and hunting rights: [99] First, are the regulations part of bona fide scheme of management and conservation of the game stocks? Second, are the regulations contrary to any express promises or covenants in the Treaty or elsewhere? Third, is there any evidence that the scheme has been structured in way that discriminates against the aboriginal fishery, and to what extent do the regulations give others priority to the game stocks? Fourth, are the regulations reasonable, in the sense that they are rational and proportional to the conservation objective? Fifth, what practical effect do the regulations actually have on the Indians ability to exercise their right to hunt and feed themselves? See also: McKenzie; Pierone; and Couillonneur, 2002 SKPC 10 (CanLII). [57] “No absolute priority or exclusivity need be given to the Aboriginal fishers, so long as meaningful recognition is given to their rights.” Lefthand, para 111, Badger, 1996 CanLII 236 (SCC), [1996] SCR 771, para 70. [58] The evidence, which is unchallenged by any defence expert evidence, clearly establishes the regulations are solely based on an integrated, absolutely necessary conservation scheme. The closure area applies to all users of the resource. The waters outside the closure area, the balance of Canoe Lake, are subject to number of severe restrictions on recreational and commercial fishing, both in terms of seasonal closures and catch limits. At the same time those waters are open to sustenance fishing all year round with no catch limits. In other words, the balance of the conservation scheme puts no infringement whatsoever on Treaty fishing. [59] If the Court is wrong on the internal restriction then it must turn to the principles established by the Supreme Court of Canada in Sparrow. These guidelines were set out in Lefthand at para 79: The Sparrow Principles [79] The leading case in this area is still Sparrow (which involved fishing rights in British Columbia), as it has been interpreted by some of the later cases. The facts in Sparrow can be distinguished in some important respects from the present two appeals. Sparrow concerned fishing rights in British Columbia, and did not concern treaty, or the Transfer Agreements of 1930. It therefore did not consider aboriginal rights that were inherently subject to an express “right to regulate”. Sparrow covered number of important topics: (a) it set out the scope and meaning of s. 35 of the Constitution Act, 1982; (b) it confirmed that aboriginal fishing rights evolve over time; (c) it held that any extinguishment of aboriginal rights prior to 1982 must have been plain and obvious; (d) it held that the scope of pre‑contact, unsurrendered aboriginal right must be determined by examining how the right was historically exercised; (e) it recognized trust‑like relationship between the Crown and the aboriginal peoples, and held that aboriginal rights must be recognized and interpreted with that in mind; (f) it held that not every interference with an aboriginal right constitutes an infringement of that right (at pg. 1112). The interference must be examined for unreasonableness, undue hardship, and interference with the preferred means of exercising the right. An interference that meets this test and “unnecessarily” infringes right is then said to be “prima facie infringement”. (g) it concluded that aboriginal rights are not immune from regulation, but that government regulation that “infringes upon or denies” an aboriginal right (i.e. is prima facie breach) must be “justified” (at pp. 1101, 1109‑10, 1113). To be justified the regulation must be in furtherance of valid objective, and must meet fluid test having regard to the fiduciary duties of the Crown, the allocation of scarce resources, the priority to be given to the aboriginal food fishery, whether the infringement has been minimized, whether compensation is possible, whether the aboriginal communities have been consulted, and other relevant factors. [60] The generous approach to the interpretation of Indian treaties was elaborated upon by Cory, in Badger at para 41, where he states: First, it must be remembered that treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See R. v. Sioui, 1990 CanLII 103 (SCC), [1990] S.C.R. 1025, at p. 1063; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] S.C.R. 387, at p. 401. Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. See Sparrow, supra, at pp. 1107-8 and 1114; R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] S.C.R. 85, at pp. 142 43. [61] Having concluded that Treaty No. 10 provides the right to fish for food, the question now turns to whether the Jans Bay closure regulations is an infringement of that right. In Goodstriker, para 60, 61 and 62 the Court stated: [60] Having concluded that Treaty provides right to fish for food within the parameters established by the NRTA, the question now turns to whether the fishing regulation that closes all fishing on specific parts of the St. Mary’s River and its tributaries for period is an infringement of that right. The Defendants have the burden of showing that the effect of the legislation is to interfere with the exercise of their right so as to demonstrate prima facie infringement, which would then require the Crown to justify such infringement: (R Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 at p.1112). [61] What amounts to prima facie infringement has been described in various ways. Some of them are as follows: “an adverse restriction on the ... exercise of the right to fish for food” (Sparrow, p.1112) circumstances that “clearly impinge upon”, the right (R Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 at para.106) “unnecessarily infringe the interests protected” by the right (Sparrow, p.1112-1113) meaningful demonition of the ... “rights” (R Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 at para.43) “more than mere inconvenience” (Nikal, para.100) [62] In Morris 2006 SCC 59 (CanLII), [2006] SCR 915 para.47-53 the Court makes it clear that an “insignificant interference” with treaty right is not an infringement. [62] In this case, the evidence establishes Mr. Desjardin could easily fish in other nearby waters. It is just that his preference is and more convenient to fish in Jans Bay. He has not established on balance of probabilities “prima facie” infringement as contemplated by the jurisprudence. [63] If the Court is in error about prima facia infringement then it must proceed to an analysis of what is often referred to as the test in Sparrow. [64] In Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075, [1990] WWR 410, the Supreme Court of Canada, dealing with case involving an Indian’s right to fish for food off the coast of British Columbia, set out guidelines to use in looking at legislation that might affect an existing Aboriginal right. At page 437, Chief Justice Dickson and Mr. Justice La Forest, speaking for the Court, said: The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents prima facie infringement of s. 35(1) [of the Constitution Act, 1982]. To determine whether the fishing rights have been interfered with such as to constitute 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, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving prima facie infringement lies on the individual or group challenging the legislation. [65] Upon full analysis the Court would be of the view that the Saskatchewan Fishery Regulations, 1995, SOR 95/233 are not prima facie infringement of the accused’s Treaty fishing rights. [66] If the Court is in error on that point then it must proceed to the next step in Sparrow which is the justification process. [67] The justification test set out by the Supreme Court in Sparrow involved two main questions: 1) Is there valid legislative objective? [68] In Sparrow the Chief Justice stated at 438: If prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of constitutional aboriginal right. The justification analysis would proceed as follows. First, is there valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. An objective aimed at preserving s. 35(1) rights by conserving and managing natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial. [69] This suggests valid objective will be one that is important enough to outweigh the Aboriginal right. The Supreme Court has stated valid objective would be one aimed at the conservation or management of natural resource. [70] As stated earlier, the uncontradicted evidence clearly establishes the need to protect the fish stocks which was the sole intent of the regulations. 2) Second stage involves the honour of the Crown? This in turn raises two questions: a) Has there been as little infringement as reasonably possible in order to affect the desired outcome? Considering the evidence the answer to that is yes. b) Has the Aboriginal group in question been consulted with respect to the regulation? Considering the three letters of 1993; 1996 and 2016 the logical interpretation of the letters and inference to be drawn is that the answer is yes. [71] It may be that some Aboriginal leaders feel the closure could or should maybe be revisited. However, there is no expert evidence presently available to create foundation for logical revisitation. In addition, the evidence establishes this has been very cooperative effort over the last thirty plus years between Canoe Lake community and the Government to deal with this in logical, objective, conservation focussed way to protect the fish population while still respecting the Treaty right to fish. [72] In conclusion, the accused has failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him:1) The challenged regulations are within the implied common law limitations on Aboriginal fishing rights;2) Alternatively the regulations are within the proviso of Treaty No. 10 and constitutional legislative enactments for “regulations to be made” by government;3) Alternatively, if the regulations are not within the implied or express limitations of the right, evidence does not establish a prima facie infringement of the right;4) Alternatively, if there was a breach, said breach meets the justification principles set out in Sparrow and Pierone. [73] The Court finds the accused guilty as charged. D.A. Lavoie,
/n The accused was charged with violating s. 7(2)(b) of the Saskatchewan Fishery Regulations, 1995 by unlawfully fishing in an area of Canoe Lake, specifically Jans Bay, that had been closed to all fishing since 1993 because of overfishing by the local commercial fishery industry. The accused, a status Indian with Aboriginal and Treaty 10 rights, was fishing for food. He had used a net in the restricted area and had caught eight suckers, two walleye and one northern pike. The Bay was very close to the residence of the accused on the Canoe Lake First Nation and was his preferred area to fish. The remainder of Canoe Lake was subject to restrictions governing all fishing but open to unlimited Treaty sustenance fishing all year round. The accused admitted to the actus reus of the offence. Under the Constitutional Questions Act, 2012 the accused gave notice that he would argue that s. 7(2)(b) of the regulations was invalid because it restricted his Treaty and Aboriginal right to fish food in the restricted area as defined by the Regulations; infringed his Treaty and Aboriginal right to fish for food as protected by s. 35(1) of the Constitution Act, 1982; and infringed his Treaty and Aboriginal right to fish for food as protected by s. 25 of the Charter of Rights. The agreed Statement of Facts confirmed the accused’s Aboriginal Treaty status and right to sustenance fishing. The Crown’s major witness was an expert in fish biology and he testified that the restricted area had been closed to protect it for walleye spawning. He stated that the closed area could not be opened for sustenance fishing. The conservation effort had been supported by the Canoe Lake Band Council./n HELD: The accused was found guilty. The court found that the accused had failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him: 1) the challenged regulations were within the implied common law limitations on Aboriginal fishing rights; 2) alternatively, the regulations fell within the provisions that permitted such regulations in Treaty 10; 3) alternatively, if they were not within the implied limitations of the right, the evidence had not established a prima facie infringement of the right; 4) alternatively, if there was a breach, it met the justification principles set out in Sparrow and Pierone.