Aboriginal fishermen convicted of violating licence

Two fishermen from Waycobah First Nation have now been convicted of a fishery offence after a Supreme Court decision overturned a lower court ruling that imposed a stay in the case.

In a decision released this week, Justice Robin Gogan allowed the Crown appeal, which included the introduction of fresh evidence in the case, and set aside the stay, which resulted in convictions for both accused.

The case has now been referred back to provincial court for sentence.

Joseph James Martin, 52, and Victor Benjamin Googoo, 47, were charged with catching and retaining salmon from waters where such fishing was prohibited and with fishing by jigging in inland waters. They were charged under the Aboriginal Communal Fishing Licences Regulations.

The offences occurred Oct. 10, 2007 at the Twin Churches Pool, Middle River, Victoria County. They were not formally charged until Aug. 6, 2008.

While both accused admitted that jigging was not an approved fishing method under the licence conditions, they argued they were exercising their Aboriginal rights to fish for food.

At the end of a lengthy trial, provincial court Judge Peter Ross issued a stay of proceedings because the Crown had failed to consult with the First Nation community prior to issuing a formal charge.

A stay means any further prosecution on the charge is halted and the Crown has one year in which to refile the charge.

In her decision, Gogan noted that the Supreme Court of Canada confirmed there is an existing Aboriginal right to a food, social and ceremonial fishery but such a right is not absolute.

To ensure such a right for Indigenous peoples, the Department of Fisheries and Oceans has agreements in place with communities across the country, including Waycobah.

Such agreements detail allocations, places, times and methods of approved fishing.

The Waycobah agreement did cover Middle River and only permitted catch and release fishing for salmon.

In his decision after the trial, Ross said he was issuing a stay because he felt federal officials failed to consult with community leaders prior to taking enforcement action.

The issue of consultation flows from a 1993 fishery department policy statement that Aboriginal officials were to be consulted whenever enforcement action was taken.

There was no evidence presented at the trial concerning this policy but Gogan allowed such evidence in the appeal.

Ross ruled the policy was binding on the Crown and that it had failed to comply.

In its appeal, the Crown contended such consultation is not a concept that exists in law and the policy was internal and not binding on the Crown.

“The present state of the law has not evolved to recognize a specific duty of enforcement consultation,” said Gogan, adding there is no authority that consultation at the enforcement stage is inappropriate or contrary to law.

“I disagree with the Crown submission on the limits of the duty to consult. It is my view that the duty to consult is an evolving concept which requires consideration any time the honour of the Crown is at stake in its ongoing relationship with Aboriginal peoples,” said Gogan.

Gogan stressed that the duty to consult was not a way to impose immunity from prosecution but rather to inform and strengthen relationships between the Crown and Aboriginal peoples.

In allowing fresh evidence to be introduced in the appeal, the court heard testimony from federal officials explaining that Waycobah band officials were indeed contacted on at least two occasions about the charges but no action was ever taken against the accused or to prevent further occurrences.

“I conclude the duty to consult was discharged in this case,” said Gogan, adding there was adequate notice and information given to band officials.