In a trial involving two members of the Cheam Indian Band charged with offences under the Fisheries Act, the BC Provincial Court made a ruling that the defendants had not proven a prima facie infringement of section 35 rights.

The defendants Aleck (a father and daughter) were charged with various offences under the Fisheries Act. The events occurred in the non-tidal zone of the Fraser River near Chilliwack. One of the charges relates to a protest fishery that occurred on 17 July 2005 when the Fraser River was closed for fishing. One month later, Mr. Aleck was charged with fishing with a drift net, when the method allowed by the DFO was set nets. Later in August 2005, the Fraser was open for both set net and drift net fishing. The defendant Aleck chose to start fishing early in the morning, outside the hours allowed. There were two other charges relating to the defendants fishing in the early morning, before the permitted period.

The defendants asserted that the legislation under which they were charged contravenes their Aboriginal rights to fish under section 35 of the Constitution Act, 1982. The Court followed the Sparrow procedure of conducting the proceeding in stages. The trial began in August 2009. The first two stages, involving factual matters and the existence of Aboriginal rights, are complete. This ruling concerns the third stage of the Sparrow process: a determination of whether the defendants have demonstrated a prima facie infringement of their Aboriginal rights. The Court held that the defendants had not met their onus.

Evidence was given at trial by Cheam and Sto:lo witnesses, such as Ernie Crey, about the fishing practices and customs of the Sto:lo people.  There was a perception that sports anglers had been favoured by government policies, and consultation with the Sto:lo Nation had been minimal. MacKay P.C.J. emphasized that section 35 rights are communal in nature, and found that the defendants failed to call evidence as to Cheam communal rights, and what those rights entail. In contrast, the Sparrow case involved extensive testimony from Musqueam witnesses on such issues. Most of the evidence in this case concerned the perceived shortcomings of the DFO.

The defendant Aleck gave some evidence about using the fish for ceremonial purposes, and to feed his extended family. He and his daughter were well aware that the river was closed at the times that they fished.

The onus of proving a prima facie infringement is not a heavy one. The Sparrow criteria are: (1) is the limitation unreasonable?; (2) does the regulation impose undue hardship; and (3) does the regulation deny the holders of the Aboriginal right their preferred means of exercising that right?

The requirement of a licence in and of itself does not amount to an infringement. MacKay P.C.J. agreed that the setting of openings by the DFO in order to manage the fishery was a reasonable exercise of its powers. There was no evidence showing that the restrictions imposed by DFO had any effect on the communal rights of the Cheam.

In regards to the second criterion of Sparrow, the Court held that the evidence did not establish undue hardship. If the Fraser River had changed course, and affected the viability of set net sites, that does not amount to communal hardship. The DFO allowed for the use of drift nets on specified dates. Any concern that conforming to the licence requirements would result in hardship was “speculative” at best.

The defendants emphasized the third criterion of Sparrow and argued that they were denied their preferred method of fishing (drift nets), as set net sites were not producing sufficient fish. The Court rejected this argument. The defendants chose to fish in the early morning hours to “fish ahead of the line” and to avoid competition with other fishers, including from with the First Nations community.  There was no evidence about Cheam communal rights. MacKay P.C.J. was not satisfied that the defendants’ preference for drift fishing in the dark reflects a community preference.

MacKay J. concluded this ruling by stating:

I agree, albeit with some reluctance, with [Crown counsel’s] submission that I do not have direct evidence about the scope of the communal right of the Cheam Band to fish for food, ceremonial and social purposes. While as I have noted there is no doubt that the right does exist, I do not think I can infer the nature and scope of it from the testimony of the individuals I have heard from in this case. Moreover, there is nothing in the remaining evidence on which to base such an inference. That such evidence is necessary is not in doubt.

The Court therefore held that there was no prima facie infringement of the defendants’ Aboriginal rights to fish.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law