The B.C. Supreme Court dismissed an application to declare that, in light of Tsilhqot’in v. British Columbia, 2014 SCC 44, a provincial Wildlife Act regulation is invalid and of no force or effect as against the Aboriginal appellants.

This proceeding is a summary conviction appeal involving two First Nations men convicted of trafficking and illegal hunting of eagles. As summarized in our e-Newsletter of 2 October 2014, Madam Justice Gray had dismissed an earlier application to adduce fresh evidence, but directed that further argument be made on the appellants’ argument that the provincial Wildlife Act Commercial Activities Regulation was invalid in light of the Tsilhqot’in Nation decision: 2014 BCSC 1822.

Madam Justice Gray referred to an earlier order of the court setting a timetable for this appeal. She had difficulties with the timeliness of the appellants making this argument about the wildlife legislation. Further, the Court had difficulty in determining whether there is an Aboriginal right involved in this case. Counsel for the appellants argued, based upon Tsilhqot’in, that “there should have been consultation regarding the enactment of the Wildlife Act and the related regulation”.

Gray J. concluded that the appellants have “too many hurdles” to overcome. The trial judge had found that there was no Aboriginal right at issue. There was some evidence that eagle feathers were used for ceremonial purposes at present, but no evidence of such practices at the time of Contact. Gray J. agreed with counsel for the Crown that the first step of the Sparrow test has not been satisfied: there has not been an establishment of an Aboriginal right. Gray J. also noted that Tsilhqot’in related to Aboriginal title.

Due to the lack of substance to this argument, and the failure to abide by the timetable set earlier by the Court, Gray J. dismissed the application.

The summary conviction appeal was dismissed on 18 September 2014: 2014 BCSC 1886.
(dismissal of summary conviction appeal)


Scott Kerwin


Aboriginal Law