Date: 20001109
Docket: T-730-99
BETWEEN:
CHIPPEWAS OF NAWASH FIRST NATION, PAUL JONES
and CHIEF RALPH AKIWENZIE
Plaintiffs
and
HER MAJESTY THE QUEEN, as represented by THE MINISTER OF FISHERIES AND OCEANS and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendants
REASONS FOR JUDGMENT
DAWSON J.
[1] In 1992, the Department of Fisheries and Oceans ("DFO") implemented the Aboriginal Fisheries Strategy ("AFS"). The AFS, a continuing program, aims to increase economic opportunities in Canadian fisheries for Aboriginal people while achieving predictability, stability, and enhanced profitability for all participants in the fishery. A news release, issued to announce the AFS, stated that the strategy was "[d]esigned to provide economic opportunities to Aboriginal groups in coastal areas of Canada".
[2] The plaintiffs, and most other Aboriginal groups which pursue inland fishing, have been denied access to the AFS.
[3] At issue in this action is whether the exclusion of Aboriginal groups in non-coastal areas of Canada violates the plaintiffs' equality rights as guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") or constitutes a breach of any fiduciary duty the defendants owe to the plaintiffs.
PRELIMINARY MATTERS
[4] By order of the learned Prothonotary, Mr. Hargrave, made on consent, this matter has been bifurcated so that this trial deals only with questions of whether there has been a violation of the plaintiffs' equality rights or a breach of fiduciary duty. If the matter of damages arises, it is to be dealt with by a reference to be scheduled at a convenient date following the trial decision. Further, the defence plea invoking section 1 of the Charter was adjourned by Mr. Hargrave to be dealt with at the reference.
[5] The second preliminary matter is that the parties, prior to the trial, agreed to an undertaking to the effect that the defendants would not raise as a defence the contention that the plaintiffs would not be eligible for AFS funding even if the AFS were to apply in the Province of Ontario.
FACTUAL BACKGROUND
(i) The parties
[6] The Chippewas of Nawash First Nation ("Nawash People") is a band of Ojibwa Indians whose reserve occupies Cape Croker on the Bruce Peninsula in Ontario. Cape Croker separates Georgian Bay from Lake Huron proper.
[7] The individual plaintiffs are members of the Nawash People. Chief Akiwenzie has been Chief of the Nawash People since 1989. The plaintiff Paul Jones is described as a long time Nawash resident and fisherman.
(ii) The fishery of the Chippewas of Nawash
[8] The ancestral homeland of the Nawash People includes Cape Croker and a number of offshore fishing islands. Fishing in Georgian Bay has been conducted by the Nawash People since time immemorial, and remains very important to the community for both economic and cultural reasons.
[9] In R. v. Jones (1993), 14 O.R. (3d) 421 (Ont. Prov. Div.), the Court was required to consider the nature and extent of the relevant Aboriginal treaty right to engage in commercial fishing in the context of charges under the Ontario Fishery Regulations, 1989. The learned judge there described the historic fishery of the Saugeen Ojibway (which include the Chippewas of Nawash) in the following terms, at pages 435 to 436 of the reasons:
| The undisputed historical evidence led by the defence here has established that for centuries prior to the arrival of European settlers, the Saugeen Ojibway had occupied a vast area of what is now southwestern Ontario, encompassing all of what was known as the Saugeen, now the Bruce Peninsula, and including the area south of Georgian Bay and extending west to the eastern shore of Lake Huron. The Ojibway in that area were involved in a very productive fishery from, as is said, time immemorial. Specifically, the evidence established that they made use of numerous fishing stations on both sides of the peninsula, including the islands immediately offshore from the present Saugeen Ojibway reserves located at Cape Croker on the east side and Saugeen on the west. Their fishing was not prosecuted by individual fishermen merely to feed their own families, but rather was a community-based, collective activity in which the benefits were shared amongst the members of the community generally and directed to the subsistence of the group as a whole. Moreover, the Crown concedes, their fishing operation is accurately described as "commercial" in nature. Not only did the native groups trade among themselves, but after the arrival of the Europeans, fish was bartered with the fur traders for what became essential items. The trade developed further with the growing population of settlers and became an essential source of the band's "sustenance". The continuity of the exercise of the right from the very distant past to the present was established. |
[10] This historic description was not disputed by the defendants in the present case, who also accepted that the Nawash People have an Aboriginal right to a commercial fishery.
[11] Chief Akiwenzie testified that between 50 and 60 members of the Nawash People are employed in fishing and related activities. He estimated that, including all "spin-offs", the value to the community of the present Nawash fishery is between one and one and a half million dollars annually. An economic analysis prepared for the plaintiffs by Dr. Kimberly Rollins, an Associate Professor of Agricultural Economics at the University of Guelph, found that in the one year period from August 1996 to July 1997, the fishery accounted for about one half of all private commercial earnings in Cape Croker. The net benefit of the fishery during that year was determined to be $387,854.
[12] In addition to its economic significance, Chief Akiwenzie testified that the ancestral fishery is of cultural importance to all members of the Nawash People. The fishery was stated to be "a vital source of our cultural heritage, and of the values and attitudes that inform our spiritual beliefs".
[13] The Nawash People fish primarily for whitefish, but lake trout are also caught in significant numbers. Chub are not caught in significant quantities by the Nawash People because they lack and, according to Chief Akiwenzie, cannot afford the equipment or training required to fish for this species.
[14] Whitefish populations in Georgian Bay were described to be stable, but potentially at risk by the introduction of exotic sports fish, primarily salmon. Lake trout populations were described to be declining. Pound or trap nets which would allow mature female trout to be released were said by Chief Akiwenzie to be available and desirable, but not affordable to the Nawash People.
(iii) The AFS
[15] It was the evidence of Douglas May, Acting Chief of the Aboriginal Fisheries of the DFO, that the rationale for the creation of the AFS was outlined in a DFO Backgrounder I: The Program dated June of 1992 and a DFO News Release dated September 9, 1992.
[16] In material part, the Backgrounder provided:
| The Aboriginal fisheries strategy forms the basis of a new "social contract" among government, Aboriginal people and non-Native fishing groups. |
| It aims to increase economic opportunities in Canadian fisheries for Aboriginal people while achieving predictability, stability and enhanced profitability for all participants. |
| Negotiated agreements with First Nations will cover a spectrum of fisheries management activities, including: |
| fixed, numerical harvest levels; |
| enhanced self-management of Aboriginal fishing; |
| demonstration projects to test the sale of fish caught by Natives; |
| fish habitat improvement and fishery enhancement; |
| fisheries-related economic development and training. |
| The agreements are intended to establish cooperative mechanisms for fisheries management; meet the wish of Natives for enhanced participation in fisheries management; respond to the direction outlined in the Supreme Court Sparrow decision; and create structures to carry out the strategy. |
| An important element of the strategy will protect the position and investment of the commercial sector through the purchase and retirement of licences where allocation of fish changes hands. |
| The evolution and implementation of the strategy will involve full and open consultation with stakeholders, particularly recreational anglers and commercial fishermen. |
| In 1991 Aboriginal people became involved as never before in the development and management of fishery projects. Key parts of that activity will be extended within agreements negotiated for 1992 and future years. Funding will be provided to Native bands on the East and West Coasts and in the North to improve fish habitat and increase fish stock, construct or operate fish hatcheries, expand roles in fisheries enforcement, and undertake research and public awareness activities. |
| Relationship to Economic Development |
| Aboriginal people in coastal provinces want to preserve and build their societies and economies. Fisheries were a component of almost all coastal Aboriginal economies and the cornerstones of many. Aboriginal communities are often located close to fisheries resources, sometimes in isolated areas that offer few other employment options. |
| Increased Aboriginal participation in fisheries can provide economic development and employment opportunities to improve the economies of Aboriginal communities. Native groups will begin to assume the cost of running their own fisheries programs. Projects funded through the Aboriginal fisheries strategy will assist Native groups in achieving a greater measure of independence. |
[17] The News Release, in material part, provided:
| Designed to provide economic opportunities to Aboriginal groups in coastal areas of Canada, the strategy will contribute substantially to enhancing Atlantic salmon stocks. In addition, it responds to the Supreme Court of Canada's decision in the Sparrow case, which recognized an Aboriginal right of access to the fishery for food, social and ceremonial purposes, subject to conservation. |
| Among the many activities to be carried out under the strategy are: conservation, protection and management of fishing undertaken by Aboriginal bands; evaluation of the fisheries resource at selected sites; taking of samples, examination of fish, tagging of Atlantic salmon and release of all fish except salmon grilse that Natives are authorized to capture; and development and maintenance of effective harvest management systems. |
| "We first must meet our obligations to Aboriginal people. We also must have a commercial fishery that is profitable and stable. As well, we need to protect and encourage the sportfishery that provides employment in many goods and services sectors as well as recreation and enjoyment to many thousands. It is not one or another that we aim for, but all together." |
| Many agreements covering fishery-related activities will be reached under the Aboriginal fisheries strategy, tailored to meet the diverse aspirations and opportunities of First Nations groups on Canada's Atlantic and Pacific coasts and in the North. Over seven years, the total federal expenditure under the strategy is expected to reach $140 million. |
| The components of the strategy consist of negotiated one-year and multi-year agreements with Native communities for harvest, fisheries management and development. Projects, submitted to the DFO, address resource management priorities and are managed jointly. |
[18] Mr. Bruce Gale, the Senior Advisor on Governance to the DFO, testified on the defendants' behalf. In 1992, when the AFS was implemented, he was the Director of DFO Reform. Subsequently, Mr. Gale served as Director of Legislative and Regulatory Affairs for DFO and from 1996 to 1998 he was the Director-General of Aboriginal Affairs for DFO.
[19] Mr. Gale described the AFS as an approach to the management of Aboriginal harvesting, particularly harvesting for food, social and ceremonial purposes. He viewed the program as comprising agreements negotiated and signed annually with individual First Nations, which agreements laid out all of the elements of the fishing plan for that fishery for that year. Subordinate elements of the program were programs and activities which supported the fishery.
[20] Each agreement negotiated with each First Nation under the AFS leads, Mr. Gale testified, to the issuance of a licence to the First Nation. The licence deals with species and quantities to be fished, areas to be fished, and the gear to be used.
[21] The AFS applied, and continues to apply, in jurisdictions where the DFO manages the fishery and where land claims have not already resulted in an effective fishing regime. It was Mr. May's evidence that, generally speaking, the AFS applies in Atlantic Canada, and parts of British Columbia, the Northwest Territories, Yukon and tidal waters in Quebec. In the first four years of the operation of the program AFS agreements were signed with 80% of B.C. First Nations, 90% of Atlantic First Nations, and 21 agreements were signed with Northern Quebec Inuit communities and regional organizations.
[22] Mr. May also gave evidence that for 100 years the DFO has consistently maintained that federal initiatives directed toward the management of Aboriginal fisheries only apply to areas where the DFO directly manages the fishery.
(iv) Jurisdiction and Management of the Fishery in Ontario
[23] The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 ("Constitution Act, 1867"), has been interpreted to provide that jurisdiction over inland fisheries is shared between the federal and provincial governments. Subsection 91(12) of the Constitution Act, 1867, confers on the federal government jurisdiction over sea coast and inland fisheries. Subsection 92(13) confers on the provinces jurisdiction over property and civil rights.
[24] The parties, in the agreed statement of facts filed in evidence, agreed that:
| 6. A decision of the Judicial Committee of the British Privy Council, Attorney General for the Dominion of Canada v. The Attorney General for the Province of Ontario Quebec and Nova Scotia, [1898] A.C. 700 on a constitutional reference to the courts by the Governor General of Canada, in 1894, dealt with respective federal and provincial proprietorship of and jurisdiction over fisheries. Following that decision, on or about February 27, 1899, a memorandum submitted by the federal Minister of Marine and Fisheries for the approval of the Governor General of Canada called for dispensing with the services of certain federal fisheries officers in Ontario, and leaving the administration of certain fisheries matters in Ontario to provincial authorities. (Crown Doc 4) On or about May 8, 1926, a federal Order-in-Council was passed transferring certain federally-owned fish hatcheries in Ontario to the provincial Crown (Crown Doc 5). |
| 7. Certain responsibilities with respect to the administration of fisheries in Ontario have been delegated to the Ontario Minister of Natural Resources by the Ontario Fishery Regulations, S.O.R. / 89-93, and the Aboriginal Communal Fishing Regulations, S.O.R. / 93-332, both of which Regulations were made under the authority of the Fisheries Act, R.S.C. 1985, c. F-14. |
[25] It was the evidence of Michel Leclerc, the Acting Director of Legislative and Regulatory Affairs of the DFO, that:
| 4. Following the decision of the Privy Council, the administration of the non-tidal fisheries in Ontario, and the regulations in relation thereto, was, in 1899, entrusted to the Province of Ontario. The Government of Canada continued to operate the hatcheries that were then in existence in Ontario and retains authority over the tidal waters in Hudson's Bay and James Bay, which continues to date. This delegation of the administration of Ontario fisheries to the Province of Ontario is evidenced in a handwritten memorandum copied to the Department of Marine Fisheries and the Auditor General on March 3, 1899. A photocopy of this handwritten memorandum is attached hereto as Exhibit "A". The arrangement referred to above was explicitly recognized in a subsequent Order-in-Council, P.C. 714, of May 8, 1926 which also transferred the federal hatcheries to the Ontario government. A photocopy of the said Order-in-Council is attached hereto as Exhibit "B". |
| 5. Through the administrative arrangement of 1899, Ontario has effectively managed virtually all aspects of its own non-tidal fisheries for the past 100 years. The DFO has retained little involvement in the management of the fisheries in the non-tidal waters of Ontario. For example, as part of the arrangement of 1899, the Province recommends to the DFO proposed amendments to the Ontario Fishery Regulations promulgated under the Fishery Act to facilitate the Province's management of sport and commercial fisheries. The Province of Ontario has also enacted legislation such as the Fish and Wildlife Conservation Act to provide for the sound management of the Province's fish and wildlife resources. As a final example, the Aboriginal Communal Fishing Licence Regulations, made pursuant to the Fishery Act, provides that the Minister of Natural Resources for Ontario is the Minister empowered to grant licenses for Aboriginal fishing in Ontario. |
[26] It was Mr. Gale's evidence that the DFO did not and would not debate with Ontario the wisdom of fisheries management.
[27] I accept and find on the basis of this evidence that at all material times Ontario has effectively managed the non-tidal fishery in Ontario.
[28] While it is true that the Aboriginal Communal Fishing Licences Regulations referred to by Mr. Leclerc were not enacted until 1993, prior to that enactment Ontario regulated Aboriginal and non-Aboriginal fishers under the Ontario Fishery Regulations, 1989, SOR/89-93, and the Ontario Game and Fish Act, R.S.O. 1990, c. G.1.
(v) The non-application of the AFS to the plaintiffs
[29] It is agreed by the parties that:
| 5. On or about February 16, 1993, officials of the federal Department of Fisheries and Oceans ("DFO"), told representatives of the Nawash People that they are not eligible for AFS funding because the AFS does not apply to inland fisheries within provincial boundaries. This failure to make AFS funding available to the Plaintiffs continues to this day. |
[30] It was the evidence of Chief Akiwenzie that the Nawash People would greatly benefit from AFS type programs, such as:
| research into the impact of introducing exotic fish; |
| acquisition, training and use of pound nets; |
| financial assistance in training for deep water fishing; and |
| effective measures to stabilize lake trout populations. |
[31] An internal DFO document prepared in 1996 to review the operation of the AFS to that point in time stated that through partnering arrangements with Aboriginal fishing authorities, the management of Aboriginal fishing had been greatly improved. Examples cited included:
| annual allocations of fish had been established for food, social and ceremonial purposes; |
| the program allowed planning of management measures; and |
| improved monitoring and reporting of Aboriginal fisheries catches provided an improved basis for management and stock assessment. |
[32] By 1996, in the order of 84.5 million dollars had been expended pursuant to the AFS, not including the further sum of 13.2 million dollars expended to retire commercial fishing licenses from the non-Aboriginal commercial fishery sector.
ISSUES
[33] Two issues are raised for determination at this time:
| 1. Does the AFS, or its application by the defendants, constitute an infringement of subsection 15(1) of the Charter? |
| 2. Does the AFS, or its application by the defendants, give rise to a fiduciary duty owed by the defendants to the plaintiffs as Aboriginal people and, if so, has such duty been breached? |
ANALYSIS
(i) Does the AFS, or its application by the defendants, infringe subsection 15(1) of the Charter?
[34] Subsection 15(1) of the Charter provides:
| Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
[35] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the Supreme Court of Canada reviewed both the purpose of subsection 15(1) of the Charter and the principles which guide the proper approach to an equality analysis.
[36] The purpose of subsection 15(1) was said, at paragraph 51 of the judgment, to be to "prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice".
[37] An analysis under subsection 15(1) of the Charter is not to be confined to any rigid formula. "A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee ...". See Law, at paragraph 88.
[38] The main focus of the inquiry is to establish whether the purpose or effect of an impugned law is in conflict with the purpose of subsection 15(1). See: Law, at paragraph 41.
[39] While subsection 15(1) refers to equality "under the law", the subsection applies not just to legislation but also to programs or activities such as the AFS. The applicability of subsection 15(1) of the Charter to the AFS was not disputed in this action.
[40] A court asked to adjudicate upon a claim of violation of subsection 15(1) of the Charter is required to make three broad inquiries as described by the Supreme Court of Canada in Law at paragraph 88:
| A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? |
| B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? |
| C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? |
[41] The equality guarantee is a comparative concept so that each of the three broad inquiries should proceed on the basis of a comparison with another relevant group or groups. See Law, at paragraph 56. While the claimant generally chooses the comparator a court, where warranted, may refine the comparator presented by the claimant. See Law, at paragraph 57.
[42] I begin the subsection 15(1) analysis by considering whether refinement is warranted to the plaintiffs' comparator.
(A) Comparator group
[43] The plaintiffs put forward as the comparator Aboriginal fishing communities which have access to, or are eligible for, AFS benefits.
[44] The defendants asked for a refinement of that comparator, and submitted that the comparator should be those Aboriginal peoples who can satisfy the necessary pre-condition that they are prepared to enter into a co-management agreement with the DFO, and are in a location where the DFO has authority to manage the fishery.
[45] The defendants supported their contention by submitting that the underlying rationale of the AFS is fish management and control in areas where the DFO manages the overall fishery. The comparator should be refined, it was said, because for the AFS to apply, a fishery sector must exist over which the federal government and the local Aboriginal peoples could exercise control together.
[46] The representatives of the Nawash People were told that they were not eligible for AFS funding because the AFS did not apply to inland fisheries within provincial boundaries. They were not told they were ineligible because of any inherent differences in the nature or the purpose of the fishery they pursue, or because of any differences in their rights as Aboriginal peoples, or because of any differences in their relative social or economic disadvantage. Further, the underlying rationale of the AFS is very much in dispute in this action. Therefore, I have not been persuaded that the circumstances in evidence before me warrant any refinement of the comparative group put forward by the plaintiffs.
(B) Differential Treatment
[47] In Law, at paragraph 39, Iacobucci, J. described the first stage of the discrimination inquiry as follows:
| ... does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? |
[48] I accept on the facts set out above that the effect of the application of the AFS by the defendants is to draw a formal distinction between the plaintiffs and the comparator group. I further accept that the plaintiffs have been subjected to differential treatment since DFO officials told their representatives that the plaintiffs were not eligible to AFS funds because the AFS did not, and does not, apply to inland fisheries.
[49] It is then necessary to ask whether either the formal distinction or the differential treatment was based upon a personal characteristic. This stage of the inquiry is not concerned with whether the distinction in treatment constitutes discrimination. See: Law, at paragraph 89.
[50] The plaintiffs submitted that the operative personal characteristic is their deeply ingrained ancestral association with, and residence among, their own First Nation.
[51] Chief Akiwenzie's evidence, relevant to this point, was as follows:
| Q. To what extent is the specific location of the Reserve, on the Cape Croker Peninsula, and near those waters, to what extent is that location significant to these spiritual values or could they be -- actually, if you move to Lake Winnipeg, would it be the same? |
| Q. To what extent is the location significant to the spiritual and cultural balance? |
| A. The area that we are located in is very unique, because it contains a very sacred area, the Bruce Peninsula. |
| Q. Sacred, in what respect? |
| A. Ancestors are buried nearby. |
| Q. I see. Any other respect? |
| A. I believe that our area is unique because we are connected with the water, so the location is very, very unique, that we are boundered by water and also by the Niagara Escarpment. |
[52] While I accept that the AFS requirement that it apply only to Aboriginal people in coastal provinces operates unequally in its effect upon Aboriginal persons who pursue inland fishing, and while I accept the evidence of Chief Akiwenzie that the Nawash People have a deeply ingrained ancestral association with, and residence among, their own inland First Nation, I am unable to conclude that the distinction drawn by the AFS is based upon the personal characteristic of the plaintiffs' association with, and residence among, their own First Nation.
[53] I reach that conclusion because other Aboriginal persons eligible to participate in the AFS also share the characteristic of a deeply ingrained ancestral association with and residence among their own First Nation. It is not the presence or absence of that ancestral association which determines whether one is eligible to participate in the AFS.
[54] The plaintiffs submitted that if one views two bodies of Aboriginal people, both with a deep ancestral connection to where they live, and offers benefits to one but not the other because of where they reside, one has distinguished between the bodies on the basis of their ancestral connection to a specific locale.
[55] Inherent in that submission is the premise that the determination of eligibility is predicated upon the personal characteristic of the location of the residence.
[56] The validity of that premise must be considered. That, in turn, requires in my view, consideration of the nature of the AFS.
[57] The defendants said that the AFS was and is primarily a program geared to fish, and to the management of the fishery. The plaintiffs asserted that the AFS is entirely in relation to "Indians" in its pith and substance.
[58] In submitting that the AFS in its pith and substance was in relation to "Indians" the plaintiffs relied upon the following:
| The Backgrounders released by DFO at the time the AFS was announced. In addition to the first two paragraphs of the Backgrounder referenced at paragraph [16] above, the plaintiffs relied upon that portion of a second Backgrounder which stated: |
| The Aboriginal fisheries strategy is the federal government's response to the question: |
| How can the role of Natives in the fisheries be expanded while conserving fish stocks and maintaining a stable environment, predictable resource-sharing and profitable fisheries for all interests?; |
| The evidence of Mr. May that the first Backgrounder set out the rationale for the creation of the AFS; |
| The fact that AFS programs were not available to all categories of fishers; and |
| The DFO review document heralded as the first mentioned AFS success that: "Through partnering arrangements with Aboriginal Fishing Authorities, the management of Aboriginal fishing has been greatly improved". |
[59] However, the first and second Backgrounder documents should not be viewed in isolation. Four Backgrounder documents were issued to "back-up" three news releases issued on June 29, 1992 and the remarks of the then Minister of Fisheries and Oceans, John C. Crosbie. The Minister's remarks and the three news releases dealt almost exclusively with the B.C. fishery. The AFS was, however, not confined in its application to B.C.
[60] This reflects, I find, that the Minister's remarks and the news releases provide less reliable evidence of the aims and effects of the AFS than is obtained by reference to the actual terms and operation of the program. In so concluding, I have not ignored the evidence of Mr. May that Backgrounder I did set out the rationale for the AFS program.
[61] As to the evidence of the terms and operation of the program, Mr. Gale described the AFS in the following terms:
| Q. Okay. If we could just get into some detail about the Aboriginal Fisheries Strategy, can you just describe what it is? |
| A. Well, the Aboriginal Fisheries Strategy is a program. It's a program, as has been described here, that has funding attached, but I think it's more fair to describe the Aboriginal Fisheries Strategy as an approach to the management of Aboriginal harvesting, and particularly harvesting for food, social, and ceremonial services. |
| So when I think of -- having had responsibility for the program, I think of the program as comprising the Aboriginal agreements that we signed with individual First Nations, the licence that is issued thereunder, which will lay out all of the elements of the fishing plan for that fishery for the year, and then there are subordinate elements, with respect to the programs and activities, that will take place in support of that fishery. |
| Q. And can you describe to us how the agreements themselves come into effect? |
| A. Sure. They're generally negotiated on an annual basis. Some groups have had three-year agreements, but in a sense they're just framework agreements. |
| The real substance of the agreement is negotiated on an annual basis, so they are negotiated by regional staff under general direction from Ottawa with the individual First Nation. |
| And it involves consulting the First Nation about what they believe their food fish needs to be, the species that they would like to fish, the place where they wish to fish, the gear that they wish to use, and then there's a component -- these all are then reproduced in the licence that is issued to the First Nation. |
| Along with that, we talk about the program support component. |
| Q. Are all the agreements the same? |
| A. They follow a standard template. |
| Q. And are there any variations in the agreements? |
| A. Well, I mean, obviously there are variations in terms of program support, in terms of the contents of the licence, but there are some consistent markers. |
| First of all, under every agreement, with the exception of a few arrangements that we have with umbrella groups, which are really more like project funding for consultation, but, with each First Nation, every agreement shall lead to the issuance of a licence. |
| That is set out expressly in the agreement because the -- not only is the agreement an arrangement, including a financial arrangement with the First Nation, it is -- it serves for DFO as the evidence that consultation and discussion has taken place with respect to their participation in the fishery and the rules that will be observed. |
| And it's -- the two parties, by signing the agreement, acknowledge that a licence will be issued to the First Nation. |
| Q. And you said that each agreement had markers, and the licence was one of the markers? |
[62] In response to a question as to how, if at all, the AFS benefited the DFO, Mr. Gale replied:
| A. Well, I mean, you know, our primary goal is to ensure the conservation of the resource and order in the fishery in the interests of everyone who depends on it or participates in it. |
| And after all, particularly when we're talking about the marine fishery, I mean, it's a national resource. It's a public resource, so it enabled us better to discharge our primary responsibilities to the resource, and to the Canadian people, and those who depend on the fishery. |
| But, as well, what we were able to secure through these licences was legal certainty and enforceability. In other words, once we had agreement with the band as to how their members would exercise their right, and that was codified, first of all, through this agreement, which is essentially an administrative agreement, it's something that documents the consultations. |
| And then, through the actual legal instrument, the licence, it meant that we had an enforceable regulatory tool that was also supported by the leadership of the individual First Nations. |
| And, in fact, where First Nations members have fished outside the terms of the licence, we have instances of First Nations asking us to lay charges against members of their band, so it gives us legal certainty. |
| It gives us order in the fishery and the mere process of talking has moved us, not always and not -- we don't have 100 per cent performance on either side, I would say, but it's moved us from command and control and confrontation into something more, like, if not a partnership, then at least a stable working relationship that provides predictability of a flow of information right through the fishing year. |
| It doesn't -- the relationship doesn't stop once the agreement is signed. It's an ongoing thing. |
[63] As to the program's impact on non-Aboriginal fisheries, Mr. Gale's evidence was:
| A. Well, it had, I believe, a very positive effective upon their circumstances. I'm not sure that they were thanking us at the outset, but, in fact, it brought predictability and certainty into their fishery. |
| It also meant that by funding for the retirement of licences, we could reallocate the resource without hardship to individuals or communities. All of the licence retirement was done on a voluntary basis. |
| And this is a little bit difficult to explain, but if you have uncertainty about how much Aboriginal people are going to harvest, you have to manage the whole -- rest of the fishery much more conservatively, and that is particularly true in the salmon fishery because of the migratory nature of salmon. |
| The Aboriginal people, who are catching fish in the river for their food, social and ceremonial needs, have the highest priority of access, but they're the last people in line because those fish move right down the coast and into the rivers. |
| If you can't be sure that sufficient number of fish will get past those Aboriginal fishing stations to make it through the spawning grounds, you have to manage through the entire range of movement of the salmon much more conservatively. |
| So when you have stability and predictability as to the actions or actions of all who are participating in the fishery, you can have a much more calibrated, much more finely tuned system, because you don't have to leave a big margin for error or uncertainty. |
[64] As to why the AFS did not apply in Ontario, Mr. Gale was asked and answered in direct examination as follows:
| Q. Can you describe why it doesn't apply in Ontario? |
| A. Well, first of all, we are not the day-to-day manager of the resource in Ontario. We have a residual function with respect to the enactment of regulations, but we are not running a science program. We are not running an enforcement program in the fishery. |
| We are not drafting commercial or recreational fishing plans. Secondly, we are not allocating the fishery. If the starting point for Sparrow was to ensure that Aboriginal people had sufficient access to the resource to satisfy their food, social, and ceremonial needs, then we needed, in other words, to manage other fishers back. |
| Q. What do you mean by [manage] other fishers back? |
| A. Commercial or recreational harvesters who might be fishing on the same species, we needed to reduce the scope of their activity or reduce their harvest levels to provide additional access to First Nations people. |
| So the Minister's control of the levers of allocation, licences are one means of control, but there are others, seasons, for example. Our control of the allocation function was essential to that. |
| And we do not allocate in Ontario waters because we believe that the province has original jurisdiction to allocate, and that has been supported by provincial licencing legislation. |
[65] In cross-examination Mr. Gale was asked, and answered, as follows:
| Q. If your department is able to operate in other respects with a situation which each individual province is particularized and has a particular arrangement, why was it necessary, with respect to the Aboriginal fisheries policy, to exclude an entire area and apply it to this part and that part, but to leave this part out altogether? |
| A. Well, I would say, first off, that the Aboriginal Fisheries Strategy is built around negotiating Aboriginal access to the resource and the quantity in which that resource would be taken, and that where others have the authority directly to allocate the resource, DFO can't perform that function, and the province of necessity does. |
| Secondly, to the extent that Aboriginal Fisheries Strategy is about arrangements for negotiating a fishing plan, providing for programs in support of the fishing plan, enforcing that fishing plan, that the real relationship in inland provinces is between the de facto manager -- the place where such discussions take place is between the de facto manager and the First Nation. |
| And I would argue that DFO could not selectively intervene bilaterally with individual First Nations without the knowledge or independent of this larger management scheme into which Aboriginal harvesting must be integrated. |
[66] The DFO's policy for the Management of Aboriginal Fishing was tendered in evidence. In material part it stated:
| This policy provides principles and procedural guidelines for DFO's management of Aboriginal fishing reflecting the Department of Fisheries and Oceans' (DFO) Aboriginal Fisheries Strategy (AFS) and the current state of the law on Aboriginal fishing rights, particularly the decision of the Supreme Court of Canada in the Sparrow case. The policy applies to all species of fish. |
| 2. Regulation of Aboriginal Fishing |
| DFO will provide for the management of Aboriginal fishing which includes, but may not be limited to, fishing for food, social and ceremonial purposes, in the following ways: |
| a) Where necessary to ensure that the total harvest by all harvesters of a fish stock does not exceed the conservation limit, Aboriginal fishing will be conducted under the authority of a Communal Licence issued under the Fisheries Act. |
| b) DFO shall endeavour to negotiate with the representatives of First Nations, mutually agreeable arrangements for Aboriginal fishing, such arrangements to be described in Aboriginal fishing agreements under the AFS. |
| c) Where agreement cannot be reached on the management of Aboriginal fishing, DFO shall provide a First Nation with access to fish for food, social and ceremonial purposes through a Communal Licence, imposing only such restrictive conditions as are necessary to achieve a valid conservation objective, to provide sufficient food fish for other First Nations, to achieve a valid health and safety objective, or to achieve other substantial and compelling objectives. |
| 7. Aboriginal Fishing Allocations |
| a) DFO shall give first priority of access to fish, after conservation needs are met, to Aboriginal people to meet their needs for food, social and ceremonial purposes, to the extent possible given the availability of fisheries resources within areas used historically by the group. DFO will provide for such needs through Aboriginal Fishing Agreements and Communal Licences with First Nations. |
[67] With respect to the type of projects under the AFS that Chief Akiwenzie testified would be of great benefit to the Nawash People, the DFO policy stated:
| 10. Cooperative Management Subagreements |
| a) AFS subagreements on the following Cooperative Management activities may be negotiated in conjunction with the negotiations of Aboriginal Fishing Agreements: |
| i) fishery guardian programs; |
| ii) participation in habitat management; |
| iii) habitat restoration; |
| v) stock assessment and other research carried out by Aboriginal communities in cooperation with DFO; |
| vi) development and testing of new approaches to delivering economic benefits to Aboriginal communities through fisheries; and |
| vii) issuance to the First Nation of a number of licences to participate in one or more commercial fisheries under the terms and conditions prevalent in that fishery, to be held and administered by the First Nation. |
| b) Cooperative management activities may be funded in whole or in part through Contribution Agreements or contracts. |
[68] This I find establishes that in the absence of mutually agreeable arrangements for Aboriginal fishing, negotiated and placed in what is called an "Aboriginal Fishing Agreement", there would be under the AFS no funded projects of the type described by Chief Akiwenzie.
[69] On the totality of the evidence before me, particularly the evidence referenced above, I conclude that in pith and substance the AFS is a program geared to fish, and to the management of the fishery. This is reflected in the fact that there can be no benefits under the AFS until an Aboriginal fishing agreement, with licensing provisions, has been executed.
[70] Those benefits are, I accept, the incentive or reward for entering into agreement as to what are valid conservation objectives and hence restrictions on Aboriginal fishing rights.
[71] To that extent, the AFS impacts on both Aboriginal and non-Aboriginal fishers. The impact on non-Aboriginal fishers comes not just from the licence retirement program described in the Backgrounder I but also, I find, from the creation and maintenance of a stable fishery and what Mr. Gale described as a less conservative management of the fishery which could be achieved for the benefit of all fishers once there was agreement with respect to the Aboriginal fishery.
[72] The focus of the AFS program is unquestionably the regulation of an Aboriginal fishery. However, in view of the constitutional nature of the Aboriginal right to fish for food, social and ceremonial purposes, the fact that such right gives top priority to the Aboriginal food fishery after valid conservation measures have been implemented, and the fact that any government regulation that infringes upon Aboriginal rights must be justified (all as described by the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075), I find that the focus on the Aboriginal fishery does not detract from the fact that the AFS is a program geared to fish, and the management of the fishery.
[73] In other words, the fishery as a whole cannot be managed without proper recognition of Aboriginal rights. The AFS recognizes those rights and strives to accommodate them as part of a total fishery management program. The AFS is therefore a program based on the co-management of Aboriginal fisheries between the DFO and local Aboriginal peoples, all as part of the management of the whole fishery.
[74] Having concluded that in pith and substance the AFS is geared to fish and to the management of the fishery, of relevance is my finding that at all material times Ontario has effectively managed the non-tidal fishery found in Ontario. Irrespective of that finding is the fact that pursuant to subsection 92(13) of the Constitution Act, 1867, the Province of Ontario has original constitutional jurisdiction to legislate and regulate as to who may fish and the nature and quantity of the catch.
[75] It follows from the fact that Ontario manages the fishery and has the sole jurisdiction to grant licenses to regulate the fishery that there is no fisheries management activity relevant to the Nawash People which the DFO can undertake as contemplated and required by the AFS. The Nawash People are therefore excluded from the AFS, I find, not because of the personal characteristic of their location of reserve, but because of the fact that there is no fishery which the DFO can allocate and therefore manage.
[76] The plaintiffs argued that the federal jurisdiction over conservation needs in inland waters provides a solid jurisdictional basis for applying the AFS to Ontario's inland fisheries, and also pointed to the federal jurisdiction over "Indians" under subsection 91(24) of the Constitution Act, 1867. However, I have accepted that the AFS is predicated upon the existence of an Aboriginal fishing agreement, with licensing provisions. In the absence of the ability to license and regulate the fishery there is no basis for the operation of the AFS, notwithstanding the federal jurisdiction in respect of conservation and "Indians".
[77] The conclusion that the Nawash People are not excluded from the AFS because of any personal characteristic is fatal to the plaintiffs' claim based upon subsection 15(1) of the Charter because, to succeed, the first inquiry mandated by the Law analysis must be answered in the affirmative.
[78] Notwithstanding this, in view of the importance of the issues to the parties, and for the sake of completeness, I will continue with the two resuming stages of the Law analysis before considering the alternate cause of action asserted by the plaintiffs.
(C) Distinction on the basis of analogous grounds
[79] The second stage of the discrimination inquiry was described by Iacobucci, J. in Law, at paragraph 39, as whether the claimant was "subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?".
[80] Any discrimination in the present case was not alleged to be based upon any of the grounds particularized in subsection 15(1) of the Charter. The plaintiffs therefore asserted that two separate, but related, analogous grounds of discrimination are at issue in the present case. The first was "Aboriginality/residence", the second was "province of residence".
[81] In determining whether a particular characteristic is an analogous ground, McLachlin, J., as she then was, stated in Miron v. Trudel, [1995] 2 S.C.R. 418, at paragraph 145, that a generous approach must be used "reflecting the `continuing framework' of the constitution and the need for `the unremitting protection' of equality rights". At paragraph 147, McLachlin, J. noted that:
| ... the fundamental consideration is whether the characteristic may serve as an irrelevant basis of exclusion and a denial of essential human dignity in the human rights tradition. In other words, may it serve as a basis for unequal treatment based on stereotypical attributes ascribed to the group, rather than on the true worth and ability or circumstances of the individual? An affirmative answer to this question indicates that the characteristic may be used in a manner which is violative of human dignity and freedom. |
[82] In Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 13, McLachlin, J., as she then was, and Bastarache, J., for the majority of the Court, stated that "the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law".
[83] Aboriginality/residence, as it pertains to whether a band member lives on or off the reserve, was recognized as an analogous ground in Corbière.
[84] The plaintiffs argued that while in the present case there was no differential treatment based upon on or off reserve status, the AFS distinguishes between Aboriginal people whose reserves and bands are in coastal provinces or northern territories from those whose reserves and bands are in other parts of Canada. This was stated by the plaintiffs to be a distinction without a difference. It was said that Aboriginal people who are excluded from the AFS are as deeply and personally committed to their ancestral reserves and bands as are their counterparts in the coastal provinces and northern territories.
[85] In response, the defendants argued that by using the phrase "off-reserve status or Aboriginality-residence" the Supreme Court did not recognize Aboriginal residence per se as an analogous ground but only recognized a subset thereof, that being "off-reserve status".
[86] I accept the defendants' submission that in Corbière, the Supreme Court recognized off-reserve band member status as an analogous ground. This is made clear, I believe, in the analysis of L'Heureux-Dubé, J., at paragraph 62, where she stated:
| [62]... "off-reserve band member status" is an analogous ground. It will hereafter be recognized as an analogous ground in any future case involving this combination of traits. I note that in making this determination, I make no findings about "residence" as an analogous ground in contexts other than as it affects band members who do not live on the reserve of the band to which they belong. [emphasis added] |
It is also clear from the words of McLachlin and Bastarache, JJ. at paragraph 14, where they stated:
| [14] L'Heureux-Dubé J. ultimately concludes that "Aboriginality-residence" as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. [emphasis added] |
[87] Therefore I cannot conclude that the plaintiffs have suffered differential treatment on the basis of the analogous ground recognized by the Supreme Court in Corbière.
[88] The plaintiffs argued, in the alternative, that province of residence should be found to be an analogous ground.
[89] The Supreme Court has not to date recognized province of residence as an analogous ground. See: R. v. Turpin, [1989] 1 S.C.R. 1296 and R. v. S. (S.), [1990] 2 S.C.R. 254.
[90] Having regard to the fact that analogous grounds stand as "constant markers of suspect decision-making", so that analogous grounds exist as such in all circumstances, I have not been persuaded that this is an appropriate case for declaring province of residence to be an analogous ground.
[91] Again, it follows that the plaintiffs have not established that the differential treatment is based upon an analogous ground.
(D) Discrimination
[92] The third and final stage of the analysis was described by Iacobucci, J. in Law at paragraph 88 to be a contextual analysis of the question:
| Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? |
[93] The inquiry is to be both subjective and objective, and to be from the point of view of a similarly circumstanced reasonable person who considers the relevant contextual factors. Important contextual factors have been found to be:
| pre-existing disadvantage, stereotyping, prejudice, or vulnerability, experienced by the group at issue; |
| the correspondence between the grounds on which the claim is based upon and the actual need, capacity or circumstances of the claimant or others; |
| the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society; and |
| the nature and scope of the interest affected by the impugned law. |
[94] After judgment in this matter was reserved, the Supreme Court of Canada released its reasons in Lovelace v. Ontario, 2000 SCC 37 which considered the discrimination factor as it forms part of the requisite consideration in a subsection 15(1) analysis. Supplementary written submissions were therefore sought and obtained from the parties in light of the Lovelace decision.
[95] I now consider each contextual factor with the benefit of those supplementary submissions.
(D.1) Pre-existing disadvantage
[96] As noted by Iacobucci, J. in Law, at paragraph 64, any demonstration that state action has the effect of perpetuating or promoting the view that the claimant is less capable, or less worthy of recognition or value as a human being, or as a member of Canadian society, is sufficient to establish an infringement of subsection 15(1) of the Charter.
[97] In arguing that the AFS perpetuates the view that inland Aboriginal fishing communities are less capable or worthy of recognition or value, the plaintiffs pointed to the Backgrounder previously referred to. The plaintiffs particularly argued that excluding inland Aboriginal fishing communities from a program publicly represented by the defendants to form "a new `social contract' among government, Aboriginal people and non-native fishing groups" perpetuated a "severely wounding stereotype" that the ancestral way of life of the Chippewas of Nawash and other inland Aboriginal fishing communities is less deserving of preservation and of inclusion in the "social contract" than that of other Aboriginal communities.
[98] In submitting that the AFS applied a stereotype, the plaintiffs argued that the AFS criteria assumed that the needs of non-coastal or provincially regulated Aboriginal fishing communities are different in some way from those given access to the AFS.
[99] The defendants argued that the AFS is not a discriminatory program because it does not withhold a benefit from the plaintiffs in a manner which reflects any stereotypical application of presumed characteristics, or which reflects that the plaintiffs are less capable or less worthy in any way. The defendants particularly argued that the evidentiary substrate did not support any conclusion of stereotyping.
[100] In Law, at paragraph 102, the Court's analysis of this contextual factor flowed in large part from its conclusion as to the aim and effects of the impugned legislation. The Court concluded that the effect of the disadvantage imposed upon younger spouses was unlikely to be a substantive disadvantage, that the differential treatment did not reflect or promote the notion that the claimants were less capable or less deserving of respect, and that the law functioned not by the device of stereotype but by distinctions corresponding to the actual situation of the individuals it affected.
[101] In Corbière, the Court's analysis of this factor found that the impugned provision denied rights to the claimants, not on the merits of their situation, and therefore reached the cultural identity of off-reserve Aboriginals in a stereotypical way.
[102] It is therefore necessary to look to the aim and effects of the impugned program and the extent to which it is based upon factors going to merit or to stereotype.
[103] While the parties vigorously disputed the aim and purpose of the AFS, as set out above, I have found that in pith and substance the AFS is a program geared to fish and the management of the fishery, and have found that it is based upon the co-management of Aboriginal fisheries by the DFO and local Aboriginal peoples.
[104] I also find the AFS to be a program to facilitate a partnership type of arrangement between the DFO and Aboriginal fishing communities who fish in areas managed by the DFO. I make this finding because Aboriginal fishing agreements are required to define and establish Aboriginal fishing authorities responsible for managing fishing under the agreements in cooperation with DFO, according to the terms of the agreements. This is set out in the DFO policy as follows:
| 2. Regulation of Aboriginal Fishing |
| e) Aboriginal Fishing Authorities will be responsible for: |
| i) designating individuals to fish under allocations made to a First Nation; |
| ii) providing individuals designated to fish under allocations made to a First Nation with suitable evidence of the nature and extent of their designation; |
| iii) monitoring and reporting to DFO on harvests; and |
| iv) participating in enforcement. |
| f) Aboriginal Fishing Authorities will carry out monitoring and enforcement activities by means of Native Guardians who will be employed by the First Nation, trained through programs offered by DFO and designated as Fishery Guardians under the Fisheries Act. The duties of Guardians will be described in Guardian Subagreements which will accompany Aboriginal Fishing Agreements. |
| g) Aboriginal Fishing Agreements will be without prejudice to the position of either party with respect to Aboriginal and treaty rights. |
| h) Aboriginal Fishing Authorities may be funded in whole or in part through Contribution Agreements. |
| i) The terms and conditions of a Communal Licence will require the First Nation to: |
| i) designate individuals to fish within the First Nation's allocation; |
| ii) provide individuals designated to fish under allocations made to a First Nation with suitable evidence of the nature and extent of their authorization; and |
| iii) monitor and report to DFO on its harvest. |
| j) Persons fishing under the authority of a communal licence must provide proof of designation by the Aboriginal Fishing Authority identified in the Licence in the form specified in the licence. |
[105] Having reached my conclusion as to the aim and the objectives of the AFS, I now consider whether the AFS reflects or promotes the notion that inland Aboriginal fishing communities are less deserving of respect than their coastal counterparts.
[106] As noted above, the plaintiffs pointed to the initial Backgrounder described above in paragraph [16] to assert that excluding inland Aboriginal fishing communities from a program publicly represented by the defendants to form "a new `social contract' among government, Aboriginal people and non-native fishing groups" was to perpetuate the severely wounding stereotype that the ancestral way of life of the Chippewas of Nawash is less deserving of preservation, and of inclusion in the "social contract" with other Canadians, than that of their coastal cousins. It was also said by the plaintiffs that the AFS application criteria assume that the needs of non-coastal or provincially-regulated Aboriginal fishing communities are different from those of communities with access to the AFS.
[107] Of relevance to this issue is this testimony of Chief Akiwenzie:
| Q. How did you feel when being told that your community was excluded from a program available to other Aboriginal communities? |
| A. We felt that since it was Aboriginal specific for all of Canada, we felt that surely there would be some concern for the inland fisheries, because there's just as much activity taking place in the inland fisheries as there is out west and east. |
| Q. How did you feel about reading that the Minister of Fisheries and Oceans talks about the importance of the historic west coast fishery and excludes your people's fishery? |
| A. We feel that we are -- in our own areas, that priorities -- it doesn't matter what location, but particular to our area, we have unique needs, just like any other First Nation does in Canada. |
| Q. Would you turn to page 6, please, and would you read the one-sentence paragraph at the end of page 6? |
| A. The one that's -- the third -- sort of third -- |
| Q. It starts, "I believe..." |
| A. "I believe ..." page 6, okay. |
| " I believe the Aboriginal fisheries strategy is an important step in the Aboriginal quest for economic self-sufficiency." |
| Q. So the Minister is saying that with respect to the west coast fisheries, right? |
| Are your people involved in an Aboriginal quest for self-sufficiency? |
| A. Yes, very much so, because we are utilizing a natural resource that is native to our areas. |
| Q. How did you feel about the Minister saying that these people in the west coast have that quest and saying nothing about your quest? |
| A. We felt that there was no consideration for us whatsoever. |
| Q. Was your Band ever invited to take part in that social contract? |
| Q. Was it ever discussed with you or your Band? |
| Q. How did you feel about learning that the Minister is telling the nation that there is to be a new social contract between some Aboriginal people and your people are not included? |
| A. Left out of the picture. |
[108] This evidence is to be viewed both subjectively and objectively. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.
[109] In this context I recognize and state the importance of acknowledging that all Aboriginal peoples have been affected by what the Supreme Court of Canada referred to in Corbière, as "the legacy of stereotyping and prejudice against Aboriginal peoples". It is also important to recognize that the plaintiffs are vulnerable to stereotyping.
[110] However, of relevance as well is the finding that through an administrative arrangement with the province of Ontario that province has effectively managed virtually all aspects of the non-tidal fisheries found in Ontario.
[111] I have been persuaded on the evidence, viewed in light of the shared constitutional jurisdiction over inland fisheries, that because inland fisheries in Ontario are managed by the province, there is no fisheries management activity that the DFO can undertake so that, in consequence, the AFS, which I have accepted is based on co-management of Aboriginal fisheries as between the DFO and local Aboriginal peoples, cannot apply in Ontario.
[112] Therefore, the plaintiffs have not satisfied me that the AFS functions by device of stereotype. Rather, I find, that to the extent it denies any rights to the claimants they are denied on a basis which reflects the reality of the right of the province of Ontario to legislate and regulate with respect to the fishery as part of its jurisdiction over property and civil rights.
(D.2) Correspondence to the needs, capacities and circumstances of the claimants or others
[113] As noted in Law, at paragraph 88, where the impugned program fails to take into account the claimant's actual situation it is easier to establish discrimination.
[114] The plaintiffs argued that there was absolutely no indication that the actual circumstances of inland fishing communities had been examined, and no indication that any determination had been made that these communities were so different that a different approach was required. It was submitted that there was simply an arbitrary exclusion of inland province communities in circumstances where the plaintiffs and the comparator group were identical in terms of holding constitutionally entrenched rights under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, perceiving fishing as an ancestral way of life, fishing for economic as well as cultural and spiritual reasons, being historically subjected to social and economic disadvantage, and being able to benefit from the programs made available under the AFS.
[115] In Lovelace when considering this contextual factor the Supreme Court viewed as "critical" recognition that the impugned program, there the First Nations Fund, had not been merely and unilaterally allocated from the general consolidated revenue pool. Rather, the fund represented the proceeds of a partnered initiative designed to address several issues.
[116] Further, the Court in Lovelace stressed that consideration of the correspondence contextual factor required more than establishing a common need.
[117] Thus, while in the present case I accept on the basis of the evidence of Doctors Crawford and Rollins that the plaintiffs have similar needs to those of the comparator group, a more detailed analysis going beyond the establishment of a common need is required.
[118] In Lovelace it was stated, at paragraph 82, that:
| 82 I must stress that the casino project is not only a targeted ameliorative program, it is a program that has developed on a partnered basis, with representatives of First Nations bands having had significant decision-making input at every step of the project's development. I emphasize the partnership because the casino arrangement must be distinguished from a universal or generally comprehensive benefits program. Given the input from the bands communities, it is not surprising that there is a very high degree of correspondence between the program and the actual needs, circumstances, and capacities of the bands. |
[119] Here, I find the AFS analogous to the First Nations' Fund considered by the Supreme Court in Lovelace. The AFS is not in substance a benefit program. Rather, benefits under the AFS only flow after execution of an Aboriginal fishing agreement, an agreement which is required to set forth mutually agreeable arrangements governing the Aboriginal fishery. Those arrangements represent in essence a co-management approach to the fishery.
[120] Benefits under what the DFO policy refers to as AFS subagreements on cooperative management activities must be negotiated in conjunction with the negotiation of an Aboriginal fishing agreement. From this, I find a sufficiently high correspondence between the AFS and the needs, circumstances and capacities of Bands privy to the AFS, or entitled to be privy to the AFS and its subagreements, to conclude that there is the degree of correspondence required under this contextual factor.
[121] The AFS takes into account the actual circumstances of Aboriginal fishing communities located in a jurisdictional situation different from that of the plaintiffs. Those communities exist where the DFO manages the fishery. The plaintiffs are in an area where, to quote the evidence of Mr. Leclerc, "there is a dual role played by the two levels of government in the management and regulation of the resource". Co-management of the fishery of the Nawash People cannot be implemented within the AFS because the DFO does not, and cannot, regulate the nature and quantity of that fishery.
(D.3) Ameliorative purpose of the AFS
[122] In Lovelace, both the claimant and the targeted group were found to be equally disadvantaged, and the Court concluded, at paragraph 85, that the ameliorative purpose analysis should be extended to situations where disadvantage, stereotyping, prejudice or vulnerability describes the excluded group. The Court noted at paragraph 86, however, that exclusion from a targeted or partnership program is less likely to be associated with stereotyping or conveying the message that the excluded group is less worthy of recognition and participation in the larger society.
[123] In circumstances where the impugned program had been designed to redress historical disadvantage and to contribute to enhancing the dignity and recognition of bands in Canadian society, the Court found in Lovelace that the program had a purpose consistent with subsection 15(1) of the Charter so that exclusion of the claimants in that case did not undermine the purpose of subsection 15(1) of the Charter.
[124] In the present case, the plaintiffs argued that the AFS is not a targeted or partnership program and that exclusion from the AFS of freshwater fisheries was not consistent with the program's targeted goals.
[125] As set out above, I have found the AFS to be a partnership type fishery management program created to recognize the unique, constitutionally guaranteed, Aboriginal right to fish. While there was no evidence of consensual collaboration in the creation of the AFS, the partnering nature of the AFS was, I find, mandated by the constitutional realities articulated by the Supreme Court of Canada in Sparrow.
[126] In finding the AFS to be a program in pith and substance in relation to fisheries management where the DFO manages the fishery, it follows that I find that exclusion from the AFS of fishers who fish where the DFO does not manage or control the fishery is consistent with the goals of the AFS.
[127] I determine, therefore, that the purpose of the AFS is consistent with subsection 15(1) of the Charter. The exclusion of the plaintiffs does not undermine that purpose because the plaintiffs are not excluded because of the operation of any stereotype.
(D.4) Nature of the interest affected
[128] In Law, at paragraph 88, the Supreme Court noted that the more severe and localized the consequences of the impugned program for the affected group, the more likely that the differential treatment responsible for those consequences will be found to be discriminatory. In the present case, the plaintiffs argued that the negative impact that excluding them from the AFS has on the interest they have asserted is "direct and massive". They have been totally denied access to the AFS.
[129] However, on the evidence before me, I have not been persuaded that the plaintiffs have been excluded from the opportunity to enter into an agreement with respect to the co-management of their fishery nor have I been persuaded that they have been denied access to related government funding.
[130] Chief Akiwenzie put in evidence a letter dated February 25, 1999 from the then Minister of Fisheries and Oceans, David Anderson, which in part stated:
| I understand that your First Nation is involved in a mediated discussion process with the Ontario Ministry of Natural Resources concerning development of a co-management arrangement for commercial fishing around the Bruce Peninsula. I also understand that officials from DFO are attending these sessions. I have instructed my officials to continue to participate in the mediation process to an extent consistent with jurisdictional responsibilities. |
[131] On cross-examination, Chief Akiwenzie confirmed that over the last several years there have been several major meetings of the participants in the Bruce Peninsula fisheries. He further testified as follows:
| Q. And the purpose of the discussions is to deal with certain fisheries issues? |
| Q. And the goal is to enter into an agreement in relation to fisheries issues? |
| Q. And the representatives from the Ontario Minister of Natural Resources have been present for all these meetings? |
| Q. And that is the provincial body that governs the fishery, is that correct? |
| Q. The Province, yes. And the Chippewas of Nawash have been active participants in these discussions during the whole time? |
| Q. Some of the topics at the meetings would include when the fishery might close? |
| Q. It would include discussions about how data is to be exchanged? |
| Q. It would include a discussion about the total allowable catch in any particular year for the Nawash? |
| Q. It would include sharing of information about research on fisheries matters? |
| Q. There would be some discussion about enforcement of various fisheries matters? |
| Q. Any enforcement that would be done by the Nawash in relation to those issues? |
| Q. Any enforcement that would be done by the Ontario Minister of Natural Resources? |
| Q. There would be discussions about where the fishing is to take place, in which geographical areas? |
| Q. The discussions would provide a regular forum for the Nawash to meet with the government officials dealing with the fishery? |
| Q. The discussions provide an opportunity to discuss the future of the fishery? |
| Q. The discussions provide an opportunity to exchange information about the fishery? |
| Q. The discussions provide an opportunity for the Nawash to voice their opinion about fisheries and management -- fisheries management in Lake Huron? |
| Q. And they provide an opportunity for the Nawash to persuade the Minister of Natural Resources or the MNR about issues that are important to the Nawash? |
| Q. You mentioned that it is a goal of these discussions, that there be an agreement entered into between the various participants, and this agreement is to deal with all aspects of fisheries management. Is that correct? |
| Q. And the participants at the table have been representatives from the Department of Indian and Northern Affairs? |
| Q. Okay. And Indian and Northern Affairs representative has been there as a possible financial contributor for the agreement, is that correct? |
| Q. And it is anticipated that the Department of Indian and Northern Affairs would make a financial contribution in the event that the agreement is entered into, is that correct? |
| Q. And the financial contribution would support the purpose for which the agreement might be entered into, is that correct? |
| Q. And Department of Fisheries and Oceans representatives have been at the meetings, you have indicated. And at any time have the DFO representatives referred to a financial contribution being made to the fishery? |
| A. They haven't been specific about that, but I believe that they're there for a reason. |
| Q. And have they played an active role in any of the discussion relating to the seasons, the fishing seasons? |
| A. They have been -- at the time that they were at the table, they have been full participants of those discussions, where the talks have been discussed, and that means everything. |
| Q. ...The goal of the discussions is to come to some sort of a co-management agreement with the parties at the table, is that correct? |
| A. We don't know that, because discussions have not concluded, as was referred to before, ending discussion about the document being tabled. We don't know that. |
| Q. But your goal is to come to some kind of an agreement about fisheries issues? |
| A. To some agreement, yes, but there may not necessarily be co-management here. |
| Q. It might not be co-management, but the agreement will deal with fishing in your region, is that correct? |
| Q. And the agreement will deal with such issues as reporting of the catch? |
| Q. And it could deal with how the amount to be caught is to be determined? |
| Q. And it could deal with provisions about how provisions of the agreement are to be enforced? |
| Q. Okay. It could deal with such issues as what species can be caught? |
| Q. It could deal with how long the season is going to be? |
| Q. It could deal with how and when the season will close? |
| Q. And it could deal with how the fish are to be caught, what types of nets are going to be used? |
| Q. Okay. Now you have told us that the Province of Ontario had provided you with some funding to do stock assessment in one year and I believe you said that was nineteen-ninety -- |
| A. Nineteen-ninety-seven (1997). |
| And stock assessment is one of the components of fish management, is that correct? |
| Q. And if I understand it correctly, stock assessment is determining how many fish have been caught? |
| A. It's a way of keeping track, I guess, what the sustainability that the resource can handle. |
| Q. And one part of that is determining how much is taken from the water? |
| Q. And then that determines how much more fishing can be done in that season? |
| A. Or if it's used up, then it's closed. |
| Q. Okay. So whether the season should end or not, the assessment determines whether the season should end? |
| Q. Okay. And this helps in conservation efforts, is that correct? |
| A. Conservation and management. |
| Q. And management efforts. And it avoids over-fishing? |
| Q. And it is an aspect of fisheries management, is that correct? |
| Q. And it is an important aspect of fisheries management? |
| A. I would say very important. |
| Q. Okay. And that is the portion of fisheries management that the Ontario government has contributed to the Nawash, is that correct? |
[132] From this evidence, I cannot conclude that the plaintiffs are so differently situated from their coastal counterparts who are entitled to negotiate an Aboriginal fishing agreement under the AFS that it can be said that exclusion from the AFS has imposed severe and localized consequences upon the plaintiffs.
(D.5) Conclusion on discrimination
[133] Having applied the contextual factors as described above, I find that the plaintiffs have not established that, viewed from the perspective of the reasonable individual, in circumstances similar to those of the plaintiffs, the exclusion from the AFS has demeaned the plaintiffs' human dignity.
(ii) Does the AFS, or its application by the defendants, give rise to a fiduciary duty owed by the defendants and, if so, has such duty been breached?
[134] The plaintiffs relied upon the decisions of the Supreme Court of Canada in Guerin v. Canada, [1984] 2 S.C.R. 335 and Sparrow, to assert that the Crown owes a fiduciary duty towards Aboriginal people.
[135] Moving from that principle, the plaintiffs argued that they, and other inland Aboriginal fishing communities, have been denied access to the AFS on the basis that it did not apply in their circumstances because of the delegation of the administration of fisheries management to Ontario. This was said to breach the Crown's fiduciary duty by treating comparable beneficiaries unequally and by favouring the defendants' own administrative convenience and economic concerns over the concerns of the Crown's beneficiaries.
[136] The defendants admitted that the Crown has a fiduciary relationship with the Aboriginal peoples of Canada, but stated that the Court was obliged to assess the specific relationship between the Crown and the plaintiffs in this case for the purpose of determining whether the relationship gave rise to a fiduciary duty, and if so, to determine the nature and scope of the duty. The defendants relied particularly upon the decision of Rothstein, J., as he then was, in Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (F.C.T.D.).
[137] I begin the analysis with respect to this basis of the plaintiffs' claim from the principle that there must be circumstances in existence which give rise to a fiduciary duty on the Crown arising from those circumstances. See: Fairford, at paragraph 40 and Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (F.C.A.) at paragraph 37.
[138] As noted by Rothstein, J. in Fairford, at paragraph 52, in different factual circumstances the Supreme Court has found a fiduciary obligation to arise out of two different approaches: the reasonable expectation approach and the ceding of power-vulnerability approach.
[139] As to the former, in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at page 409, La Forest, J. writing for the majority stated that the determinative question was whether:
| ... given all the surrounding circumstances, one party could reasonably have expected that the other party would act in the former's best interests with respect to the subject matter at issue. Discretion, influence, vulnerability and trust were mentioned as non-exhaustive examples of evidential factors to be considered in making this determination. |
[140] As to the latter approach, in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 at paragraph 38 McLachlin, J., as she then was, wrote:
| [38] Generally speaking, a fiduciary obligation arises where one person possesses unilateral power or discretion on a matter affecting a second "peculiarly vulnerable" person: see Frame v. Smith, [1987] 2 S.C.R. 99; Norberg v. Wynrib, [1992] 2 S.C.R. 226; and Hodgkinson v. Simms, [1994] 3 S.C.R. 377. The vulnerable party is in the power of the party possessing the power or discretion, who is in turn obligated to exercise that power or discretion solely for the benefit of the vulnerable party. A person cedes (or more often finds himself in the situation where someone else has ceded for him) his power over a matter to another person. The person who has ceded power trusts the person to whom power is ceded to exercise the power with loyalty and care. This is the notion at the heart of the fiduciary obligation. |
[141] In oral argument, plaintiffs' counsel clarified that the fiduciary duty alleged was that when implementing a program to facilitate or recognize Aboriginal rights in Canada, there is a duty upon the Crown to see that the program applies equally to all Aboriginal peoples who hold those rights.
[142] The facts giving rise to the fiduciary duty were said to be the setting up of the AFS program.
[143] It is necessary to apply both approaches taken by the Supreme Court to the facts asserted to give rise to the duty.
[144] I begin with the reasonable expectation approach and, to use the test articulated in Hodgkinson, and applied by Rothstein, J. in Fairford, look to see whether by statute, agreement, particular course of conduct or unilateral undertaking the Nawash People and the Crown had a mutual understanding that the Crown would act on behalf of the Nawash People in connection with the AFS such as to give rise to a reasonable expectation that the Crown would act in the best interests of the Nawash People, treating them equally with others and would not favour the Crown's own interest.
[145] As to a statutory basis, in Guerin, the Indian Act, R.S.C. 1985, c. I-5, was held not in itself to give rise to a fiduciary duty on the part of the Crown. The plaintiffs in the present case did not suggest that the alleged duty arose from the Fisheries Act or other legislation.
[146] There was no evidence of any contractual relationship between the plaintiffs and the Crown, nor was there evidence of any undertaking on the part of the Crown to act in a fiduciary relationship.
[147] As to the course of conduct, again I can find no evidence that the Crown acted toward the plaintiffs in a fashion which gave rise to any reasonable expectation on the part of the plaintiffs that the Crown would act in a fiduciary capacity to the Nawash People with respect to the AFS.
[148] The duty was alleged by the plaintiffs to arise simply out of the setting up of the AFS so as to recognize the rights articulated by the Supreme Court in Sparrow.
[149] However, in Guerin, at page 385, Dickson, J., as he then was, noted that fiduciary duties generally arise only in connection with private law obligations. Public law duties, which require the exercise of discretion, generally do not give rise to a fiduciary relationship.
[150] Therefore, applying the doctrine of reasonable expectation, in the absence of evidence of a course of conduct specific to the Nawash People, I find the Crown's general dealings in establishing the AFS did not create a fiduciary duty upon the Crown as alleged by the plaintiffs.
[151] Turning to the ceding of power-vulnerability approach, there was no evidence of any statute, contract, unilateral undertaking, or conduct leading to a ceding of any of the powers of the Nawash People over any matter specifically related to the AFS or fisheries management to the Crown.
[152] To the contrary, the plaintiffs' complaint was that the AFS was announced as a fait accompli without prior consultation with the Nawash People. This is, I find, inconsistent with any ceding of power in these specific circumstances.
[153] Therefore, I find that the vulnerability described by McLachlin, J. in Blueberry, is not present with the result that I again find no fiduciary duty upon the Crown as the plaintiffs alleged.
[154] While I repeat that it is important to acknowledge the historic vulnerability of Aboriginal people and of the Nawash People, I cannot conclude that the case law has established a generalized fiduciary duty of the nature and scope presently asserted.
CONCLUSION
[155] As a result of my determination that the defendants violated neither subsection 15(1) of the Charter nor any fiduciary obligation, the plaintiffs' claim is dismissed.
[156] The matter of costs, if at issue, is reserved for further submissions by the parties.
"Eleanor R. Dawson"
_________________________________________
Judge
Ottawa, Ontario
November 9, 2000