i' - I 1-1 1 YYV,/V 5 i rax!r IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) No. 23801 lv.*&~%, BETWEEN: DONALD AND WILLIAM GLADSTONE - and - Appellants HER MAJESTY THE QUEEN Respondent FACTUM OF THE INTERVENER, THE ATTORNEY GENERAL OF ALBERTA ATTORNEY QENERAL OF ALBERTA LANG MICHENER Constitutional Law Barristers and Solicitors 9833-109 Street Suite 300, 50 OaConnor Street Edmonton, Alberta Ottawa, Ontario T5K 2E8 KIP 6L2 Per: Robert J. Normey Phone: 1-403-498-3310 Phone: 1-613-232-7171 Fax: 1-403-425-0307 Fax: 1-613-231-3191 Solicitor for the Intervener Ottawa Agents for the Intervener BLAKE, CASSELS & GRAYDON Barristers & Solicitors GOWLING, STRATHY & HENDERSON Barristers and Solicitors 1700-1030 West Georgia Street 2600-160 Elgin Street Vancouver, B.C. Ottawa, Ontario V6E 2Y3 KlN 8S3 Phone: 1-604-631-3300 Phone: 1-613-232-1781 Fax: 1-604-631-3305 Fax: 1-613-593-9869 Solicitors for the Appellants Ottawa Agents for the Appellants GEORGE THOMSON, ESQ. Deputy Attorney General of Canada
239 Wellington Street Ottawa, Ontario KIA OH8 Per: S. David Frankel, Q.C. Phone: 1-604-666-0211 Fax: 1-604-666-1599 Solicitor for the Respondent
TABLE OF CONTENTS PAGE NO. PART I STATEMENT OF FACTS PART I1 ISSUES PART I11 ARGUMENT A. NO EXISTING RIGHT B. SECTION 35 (1) : NO PRIMA FACIE INFRINGEMENT C. JUSTIFICATION PART IV NATURE OF ORDER REQUESTED LIST OF AUTHORITIES
PART I STATEMENT OF FACTS 1. This Intervener accepts the Statement of Facts as set out in the Respondent's Factum.
PART I1 CONSTITUTIONAL ISSUES The Constitutional Question is as follows: Is section 20(3) of the Pacific Herring Fishery Regulations SOR/84-324, as it read on April 28, 1988, of no force and effect with respect to the Appellants in the circumstances of these proceedings, in virtue of section 52 of the Constitution Act, 1982, by reasons of the aboriginal rights within the meaning of section 35 of the Constitution Act, 1982, invoked by the Appellants? 3. This Intervener takes the position that the majority 20 below did not err in concluding that the Appellants failed to establish that the Heiltsuk have a constitutionally protected right to engage in commercial activity. In the alternative, if such a right does exist, then there is no evidence of a prima facie infringement. If a prima facie interference is established, then such interference is justified as a valid conservation measure. The test established by this Court in Soarrow v. The Oueen [I9901 1 S.C.R. 1075 should be adapted or modified in the manner proposed by the Respondent. Commercial fishing should be treated differently from fishing for food, social and ceremonial purposes.
- 3 - PART I11 ARGUMENT A. NO EXISTING RIGHT 4. Alberta adopts the position of t :he Respon dent that the Appellants were not engaging in activity that formed part of an 10 existing aboriginal right. No additional submissions are offered on this point. B. SECTION 35(1): NO PRIMA FACIE INFRINGEMENT 5. If this Court finds that the Appellants had an aboriginal right to sell herring spawn on kelp, then this Intervener's position is that the prohibition against attempting to sell herring spawn which is not taken under a Category J license does not 20 violate the Appellants' rights under s. 35 of the Constitution Act. 1982. 6. Alberta is particularly interested in three aspects of the issue of infringement and justification. These aspects are: 1) the role of licensing in a proper conservation and management scheme; 2) any right of self-regulation that may be said to eliminate the need for licensing; 3) the differences between fishing for commercial purposes and fishing for food, social and ceremonial purposes in relation to a conservation and management scheme. 7. Alberta supports the position of the Respondent at paragraph 114 that requiring a license to engage in commercial 40 fishing does not per se infringe an aboriginal right to fish. Licensing is an important aspect of Parliament's responsibility to
establish and oversee comprehensive conservation and management plans. 8. With respect to this issue, Alberta relies on submissions in her Factum in Nikal v. The Oueen (No. 23804) (at pp. 3-4, 7-11, paras. 8-11, 17-32). 10 9. The Appellants must establish that the licensing scheme interfered with an existing right by canvassing the following matters : 1. was the regulation unreasonable? 2. Did it create undue hardship? 2 0 3 Did it interfere with the preferred means of exercising the right? 10. Alberta submits, with respect, that the learned trial judge erred in concluding that there had been prima facie interference with the aboriginal rights of the Heiltsuk. He did not apply the Swarrow approach properly. He accepted too low a standard for meeting the onus of establishing a prima facie breach. Rather than looking for evidence that a limitation was unreasonable in the given circumstances, he appeared to take the view that any limitation whatsoever on the Heiltsuk's right to barter and sell 3 0 was patently unreasonable. Case X11, pp. 2557-2558. S~arrow v. The Oueen 1112-1113. [I9901 S.C.R. 1075 at 11. The situation in this case can be contrasted with the hypothetical situation developed by this Court in S~arrow. The
Chief Justice and La Forest J. state at 1112: In relation to the facts of this appeal, the regulation would be found to be a prima facie interference if it were found to be an adverse restriction on the Musqueam exercise of their right to fish for food. We wish to note here that the issue does not merely require looking at whether the fish catch has been reduced below that needed for the reasonable food and ceremonial needs of the Musqueam Indians. Rather the test involves asking whether either the purpose or the effect of the restriction on net length unnecessarily infringes the interests protected by the fishing right. If, for example, the Musqueam were forced to spend undue time and money per fish caught or if the net length reduction resulted in a hardship to the Musqueam in catching fish, then the first branch of the s. 35(1) analysis would be met. 20 3 0 This clearly refers to actual evidence of an unreasonable interference of the fishing rights at issue. 12. Alberta further supports the submission of the Respondent at para. 122 of its factum. In order to assess whether or not the licensing restriction unreasonably interfered with the Heiltsuk Band's collective aboriginal right, it is necessary to have a sense of the limits on the extent of the traditional trade of the Heiltsuk that would have existed. The right should not be characterized as a right to harvest and sell an unlimited amount of herring spawn on kelp. 13. The trial judge was incorrect in concluding that the fact that aboriginals would prefer uself-regulation" to a licensing scheme was sufficient to establish a prima facie breach. There is no broad right of self-government or self-regulation that would enable the Heiltsuk to reject the concept of a licensing scheme. The submissions made in Alberta's Factum in Nikal v. The Oueen (No. 23804) at pp. 12-15, paras. 36-50 are relied upon with respect to this point.
14. The evidence was insufficient to reach the conclusion that the limits imposed by the license were unreasonable. No prima facie infringement has been established. C. JUSTIFICATION 15. If the prohibition against commercial fishing without a 10 license (including quotas) is held to be a prima facie infringement of the Appellants' aboriginal right to fish, then it is submitted that the infringement is justified. It is Alberta's position that the Sparrow test must be modified in order to place fishing for commercial purposes in an appropriate context. 16. The Court in Sparrow, supra, set out a justificatory standard in the context of fishing for food, ceremonial, and social purposes. These purposes are germane to the aboriginal way of 20 life. Fishing for such purposes raises markedly different concerns from the concerns that arise with fishing for commercial purposes. 17. As was stated in Sparrow, supra at 1111, the contours of a justificatory standard must be defined in the specific factual context of each case. 18. A justificatory standard where the right claimed is 3 0 fishing for commercial purposes should take into account a number of factors. These include: a) the individual or group that is making the claim and the basis of the claim; b) whether any accommodation was made for the aboriginal right; C) The nature and extent of the traditional aboriginal right;
d) notable difference between fishing for food and fishing for commercial purposes, including the fact that there are clear limits on the level of the catch in the former but not in the latter situation; e) the degree to which the aboriginal fishery developed alongside the non-aboriginal fishery; 10 f) the interests of other user groups. 19. In this case the Appellants were members of the Heiltsuk Band. The Heiltsuk Band Council held one of 28 Category J licenses issued for herring spawn on kelp in 1988. Each license holder was allocated 16,000 pounds of herring spawn on kelp. No other licensees could fish in the particular places covered by the Heiltsuk Band's license. The Band has held a Category J license since either 1975 or 1976. 20 20. There is no evidence that the Appellants themselves specifically applied for or requested a Category J license. The Crown's dealings were with the Heiltsuk Band. There is no evidence that the Band made requests on behalf of the Appellants for licenses in addition to the Band license. There is evidence of correspondence from the Heiltsuk to the Department of Fisheries and Oceans (hereafter "D.F.O.'I) indicating a demand for entry to the fishery on a native-only basis. This was rejected by D.F.O. 3 0 Case X, p. 2129. 21. D.F.O. not only provided a Category J license to the Heiltsuk Band but 16 of the 28 Category J licenses issued were issued to aboriginal peoples or individuals. Case 11, p. 239.
22. The number of licenses issued in 1988 must be considered in light of the fact that at that time, the commercial herring spawn on kelp industry was relatively new. It began in the early 1970s and one aboriginal group, the Native Brotherhood, recommended in the 1970s that clear limits be placed on any commercial spawn on kelp fishery. Respondent's Factum, paras. 32-33, 39-44. 10 23. MacFarlane J.A. of the Court of Appeal stated that the aboriginal rights of the Heiltsuk did not extend to the sale of herring spawn on kelp on a commercial basis. He stated that if he was wrong in that conclusion, and there were a prima facie infringement of an aboriginal right, then he agreed with Hutcheon J.A. that the Crown met its justificatory burden. Case XIX, p. 2603. 2 0 24. The views of MacFarlane J.A., which we submit are correct, lead to the conclusion at a minimum that the traditional commercial activity by the Heiltsuk was not extensive (assuming it existed at all). Such a view is also consistent with that taken by the learned trial judge and the learned summary conviction appeal judge. Case XII, pp. 2559-2563, 2584. 3 0 25. As the Respondent suggests at para. 127, with modern technological developments, the right to fish for commercial purposes, if not regulated by way of quotas imposed pursuant to a licensing scheme, could easily expand so that all fish not necessary for conservation purposes could be harvested.
26. Without regulation and allocation, then, the Crown would be unable to properly balance the interests of various user groups, including aboriginal peoples and non-aboriginals. The holder of a commercial right must expect that the right would be accorded limited protection and priority. This expectation must be based on an awareness that we live in a society that is "increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management." S~arrow, supra at 1110 27. The aboriginal harvesting and fishing right, developed alongside the non-aboriginal fishery. Although some priority is to be accorded to the aboriginal fishery, the interests of nonaboriginal fisheries must be accorded some recognition. 28. A case that explores some of the considerations 2 0 appropriate for justification of a limitation upon a right to fish for commercial purposes (as opposed to a food fishing right) is u.s. v. Eberhardt 789 Fed. R. (2d) 1354 (U.S.C.A., 1986). The case dealt with the validity of a moratorium on commercial fishing on a river which flowed through an Indian reservation. The Court of Appeal stated that the district court had adopted too narrow a view in focussing exclusively on the Indians' general right to fish commercially. The Court stated at 1359:... the right reserved [to the Indians of the Hoopla Valley 30 Reservation] includes fishing for ceremonial, subsistence, and commercial purposes. Interior balanced the Indians' interest in fishing for these various purposes in promulgating the regulations. By according a priority to subsistence and ceremonial fishing, and imposing the moratorium on commercial fishing, Interior sought to respond to comments reflecting the views of the majority of the Indians on the Reservation. It added at 1362:
... Interior has a broader scope of authority to regulate Indian fishing than do the states. Therefore, it is clear that the district court erred in requiring Interior to justify the ban on commercial fishing by showing that the fish resources of the Hoopa Valley Reservation were facing imminent extinction. 10 See also: American Indian Law Deskbook ed. by J. wrend and C. Smith, 1993 at 251-258. 29. Having canvassed certain of the factors which should be relevant to the issue of justification of a limit upon a right to harvest for commercial purposes, the particular elements of the Soarrow analysis can now be examined. (a) Valid Objective 2 0 30. Licensing is an integral part of resource management and conservation. As such, the challenged provision has a sufficiently compelling objective. 31. Without the challenged provision, D.F.O. would not be in a position to properly monitor and control the harvesting of herring spawn on kelp by the Heiltsuk nor would it be in a position to relate those harvesting practices to its overall conservation and management plans. SDarrow, supra at 1119 (b) Degree of Impairment 32. The degree of impairment must be considered in light of the differences between fishing for food purposes and fishing for commercial purposes (addressed above). The priority that must be accorded the latter purpose should, it is submitted, be a limited 40 one.
Jack v. The Oueen [I9801 1 S.C.R. 294 at 311 10 33. A priority was accorded to the aboriginal fishery and specifically to the Heiltsuk Band, in the issuance of Category J licenses. Of the 28 Category J licenses issued in 1988, the Heiltsuk Band Council held one of the 16 licenses allocated to aboriginal peoples or individuals. There was no evidence that the limit on the harvest (16,000 pounds) was inadequate. 34. As Hutcheon J.A. of the Court of Appeal concluded, in the circumstances of this case the allocation was not improper and the Crown has met its responsibility toward the aboriginal peoples. Case XII, p. 2603. 35. In considering whether or not a license respecting 2 0 commercial fishing or harvesting has by its quota provided an appropriate and fair allocation to the aboriginal people in question, principles developed under Charter analysis may be helpful. Hogg, Constitutional Law of Canada (3ed, 1992) at 27-29. 36. It is submitted that the mere fact that an absolute 30 priority (excepting only conservation concerns) is not given to the aboriginal commercial fishery should not mean that the right has been unreasonably impaired. As is the case with rights under the Charter, the nature of the interest attached to the right must be examined. It is submitted that a right to fish for commercial purposes cannot be said to protect interests of as high an order as the interests protected by a right to fish for food purposes. The nature of the proportionality test must take this factor into
account Rocket v. Royal Collese of Dental Surseons [19901 2 S.C.R. 232 at 247. La Forest J., "The Balancing of Interests Under the Charter," 2 N.J.C.L. 133 at 144-149. 37. It is further submitted that, as under Charter analysis, there must be some margin of appreciation given to the legislature in determining the means to achieve its objective. It would be too onerous to expect that government in every case apply the "least drastic means" imaginable, without assessing such factors as the feasibility and effectiveness of alternative measures. P. Hogg, Constitutional Law of Canada, supra at 35-28 - 35-32; Irwin Toy v. Quebec [I9891 1 S.C.R. 927 at 999. 38. The licensing scheme in this case, which enabled the Heiltsuk Band to harvest up to 16,000 pounds of spawn on kelp, is not an improper choice for D.F.O. to have elected in the circumstances. There is no unreasonable infringement of the right to harvest. (c) Respect for the Rights of Aboriginal Peoples 39. The challenged provision was established after considerable discussion and consultation with aboriginal peoples in British Columbia (Respondent's Factum, para. 158). A limited priority was given to the Heiltsuk Band, enabling it to harvest a considerable amount of spawn on kelp. (d) Consul tation
40. Consultation took place with the aboriginal peoples affected by the licensing scheme, including a representative of the Heiltsuk Band Council. This consultation occurred during the period leading up to the application for the 1988 Category J license. As Hutcheon J.A. stated (at Case XII, p. 2599) : A fair inference from the evidence is that the allocation was made following consultation with the Category J licence holders including the representative of the Heiltsuk Band Council.
- 14 - PART IV NATURE OF ORDER REQUESTED 41. That the Constitutional Question be answered in the negative. ALL OF WHICH IS RESPECTFULLY SUBMITTED. 2 0 September 27, 1995. Per : Robert J. Normey of Counsel for the Intervener, The Attorney General of Alberta
LIST OF AUTHORITIES A. CASES 1. Irwin Tov v. Ouebec [I9891 1 S.C.R. 927 2. Jackv. v. TheOueen [I9801 1 S.C.R. 294 PAGE NO. 10 9 3. Rocket v. Roval College of Dental Surgeons 10 [1990] 2 S.C.R. 232 4. Sparrow v. The Oueen 119901 1 S.C.R. 1075 5. U.S. v. Eberhardt 789 Fed. R. (2d) 1354 (U.S.C.A., 1986) 2 0 B. ARTICLES. TEXTS 6. American Indian Law Deskbook, ed. by J. Wrend and C. Smith, University Press of Colorado, 1993 7. P. Hogg, Constitutional Law of Canada (3ed, 1992-) at 27-29, 35-28 - 35-32, Carswell, Canada 8. La Forest J., "The Balancing of Interests Under 3 0 the Charter," 2 N.J.C.L. 133 (1992)