June 29, 2018
The Crown’s duty to consult Indigenous Peoples has evolved considerably since the Supreme Court of Canada’s first detailed articulation of it in its 2004 decision in Haida Nation v. British Columbia (Minister of Forests). And it continues to grow. In the June 13, 2018 case of R. v. Martin the Nova Scotia Supreme Court recognized a new duty of “enforcement consultation”: consultation by government with an Indigenous community before it takes steps to enforce the law. Although the recognition of a duty of enforcement consultation is unlikely to have a wide effect beyond those public bodies charged with the enforcement of regulatory laws, the decision is a significant reminder to all that the duty of consultation is a dynamic concept, the evolution of which continues:
The Context of This Case
The Department of Fisheries and Oceans (DFO) developed the Aboriginal Fishing Strategy (AFS) license in response to the Supreme Court of Canada’s 1990 decision in R. v. Sparrow where the Court recognized that an Aboriginal right to a food, social and ceremonial fishery is constitutionally protected by s.35 of the Canadian Constitution. However, according to the Sparrow decision, that right is not completely unfettered but is subject to limitations that met [meet] the test of justification. In 1993, DFO adopted a policy stating, at section 14, that “DFO personnel will consult with the relevant Aboriginal Fishing Authority before taking any enforcement action”. Beginning in 1994, the Waycobah community and DFO entered into a series of agreements under the AFS that regulated the community’s Aboriginal right to fish. Pursuant to the agreements, DFO issued Aboriginal Communal Fishing Licenses that set out catch allocations as well as stipulated the places, times and methods of fishing for members of the community. Under the 2007-2008 Agreement and License, salmon fishing was not permitted in Middle River.
The Charges in This Case
In October 2007, two members of the Waycobah community caught and retained two salmon from Middle River, Nova Scotia. They were (much) later charged with contravening the federal Aboriginal Communal Fishing Licenses Regulations. In the meantime, however, two DFO officials advised the appropriate community contact of the contraventions, but received no reply or objection. The accused admitted that they caught and retained the fish but defended the charges on the ground that they were exercising an Aboriginal right to fish.
The “Duty of Enforcement Consultation” in This Case
The Trial Judge decided the AFS was a justifiable limitation on the accuseds’ Aboriginal right to fish, but the Federal Government was obliged to consult the Aboriginal authority before taking enforcement action. As the Federal Government had not fulfilled this obligation to consult, the Trial Judge stayed the proceedings, meaning that no convictions could be entered against the accused. The Federal Government appealed the decision to the N.S. Supreme Court. The Supreme Court agreed with the Trial Judge that DFO owed a duty of enforcement consultation – but decided that in this case, it fulfilled that duty:
The law recognizes a “duty of enforcement consultation”. The law recognizes a duty of enforcement consultation independent of any agreement or government policy. But this particular duty of consultation is not automatically imposed whenever enforcement action is contemplated; the circumstances of each case will dictate whether a duty to consult prior to enforcement exists and what it entails.
A duty of enforcement consultation existed in the circumstances of this case. The 1993 Policy was not binding on the Federal Government nor was it incorporated into any agreement between DFO and the Aboriginal community. Nevertheless, a duty of enforcement consultation existed here:
DFO fulfilled its duty in this case. Having found that the duty of enforcement consultation did exist, the court decided the “consultation required was minimal”. To fulfil it, it was incumbent on DFO to inform the appropriate officers of the community of the offence and invite feedback. As this was done, DFO discharged its duty of enforcement consultation. Consequently, the stay was set aside and convictions entered against the two accused.
Please contact your McInnes Cooper lawyer or any member of the Aboriginal Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
Aug 8, 2023
We updated this publication on August 10, 2023. The Nova Scotia commercial net-metering regime just took another step toward implementation.…
Jan 25, 2023
Buzz around the potential of hydrogen as a green energy source has been growing. And the Atlantic Canadian provinces are poised to become a key…
Dec 6, 2022
On September 22, 2022, the N.L. Supreme Court confirmed the Nunatsiavut Assembly is a legislative body that holds all privileges, immunities,…
Nov 10, 2022
We updated this publication on August 8, 2023. October 2022 amendments to the N.S. Renewable Electricity Regulations ushered in a new…
Jun 24, 2022
The New Brunswick Court of Queen’s Bench has issued a court order to stop Indigenous fishers (all apparently members of the Wolastoqey Nation)…
Jun 6, 2022
The Federal Court’s April 22, 2022 decision in Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) has implications for the…
Mar 31, 2022
On March 18, 2022, the Supreme Court of Canada confirmed that an Indigenous government can still satisfy the impecuniosity requirement for an…
Mar 4, 2022
On December 17, 2021, New Brunswick’s Local Governance Reform Act (Bill 82) amending the N.B. Local Governance Act (and other related acts and…
Feb 3, 2022
On January 26, 2022, the British Columbia Court of Appeal extended an injunction preventing protesters from interfering with a logging…
Nov 10, 2021
On November 5, 2021, the Province of Nova Scotia passed the Environmental Goals and Climate Change Reduction Act. The Act will serve as the…
Oct 29, 2021
The New Brunswick Reduction of Greenhouse Gas Emissions Regulation, effected under the N.B. Climate Change Act, establishes specific…
Oct 19, 2021
Canada’s aquaculture industry is poised for growth but that growth is being challenged by regulatory uncertainty and a lack of confidence…
Jul 27, 2021
Canadian entities regularly contract with foreign companies to provide services in Canada. To complete its obligations under the contract, the…
Jun 21, 2021
There is a duty to consult Indigenous groups when the Crown contemplates actions that may adversely affect their rights under section 35 of the…
Jun 1, 2021
We updated this publication on July 22, 2021. On May 26, 2021, the Hague District Court in the Netherlands ordered Royal Dutch Shell (RDS) to…
May 10, 2021
The Supreme Court of Canada continues to expand the scope of Aboriginal rights. On April 23, 2021, in R. v. Desautel, for the first time the…
Apr 13, 2021
On April 7, 2021, the Nova Scotia government introduced Bill 97, amendments to the N.S. Electricity Act aimed at growing the solar industry in…
Jan 20, 2021
We updated this publication on July 8, 2022. 2020 was a year filled with challenges, including in the relationship between Indigenous…
Dec 22, 2020
The long-awaited amendments to federal fisheries regulations codifying key aspects of the Department of Fisheries & Oceans (DFO) PIIFCAF…
Apr 20, 2020
As countries around the world grapple with the spread of COVID-19, global restrictions and containment measures have presented a range of…
Feb 4, 2020
Tidal developers considering responding to the FORCE Berth D procurement now have a clearer view of just what the successful proponent will get.…
Jan 15, 2020
NOTE: In December 2020, the federal government published the long-awaited final amendments to federal fisheries regulations codifying key…
Nov 22, 2019
The Environmental Emergency Regulations, effected under section 200(1) of the Canadian Environmental Protection Act (CEPA) and in force since…
Aug 8, 2019
This publication has been updated as at January 12, 2022. Canadian provinces are looking to immigration as a solution to labour market…
Apr 29, 2019
The growing global population is feeding global demand for seafood. Growing demand is likely to drive investment, particularly mergers and…
Jul 10, 2018
If enacted, Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation…
Jun 13, 2018
Businesspeople (and their legal counsel) are on the road more than ever before: according to Statistics Canada, while Canada-U.S. traffic is…
Apr 26, 2018
The N.S. Court of Appeal has reached two decisions ending one employee’s quest for coverage of the costs of his medical marijuana – at least…
Apr 17, 2018
This publication has been updated as at January 12, 2023. There’s no shortage of media coverage about a doctor shortage in Canada and the…
Feb 20, 2018
The Canadian federal government has finally revealed how it proposes to regulate offshore renewable energy developments in federal waters. On…
Feb 20, 2018
On February 8, 2018, the Canadian federal government proposed a new Impact Assessment Act in Bill C-69, An Act to enact the Impact Assessment…
Feb 13, 2018
The much-anticipated Nova Scotia marine renewable energy regime finally has the force of law. First introduced over two years ago, the Nova…
Feb 9, 2018
NOTE: On June 21, 2019, Bill C-68, An Act to Amend the Fisheries Act and other Acts in consequence, took effect. On February 6, 2018, Bill…
Feb 8, 2018
Over the past 15 years, most of the Supreme Court of Canada’s decisions respecting Indigenous Peoples in Canada have revolved around the…
Nov 30, 2017
On November 30, 2017, the Supreme Court of Canada denied Geophysical Service Incorporated’s (GSI) application for leave to appeal the decision…
Nov 17, 2017
It’s official: as of October 31, 2017, “facilitation payments” contravene Canada’s Corruption of Foreign Public Officials Act (CFPOA).…
Nov 9, 2017
On November 3, 2017, the Newfoundland and Labrador Government published new Offshore Oil Royalty Regulations replacing the Royalty Regulations,…
Nov 7, 2017
On November 2, 2017, the Supreme Court of Canada was faced with the Ktunaxa Nation’s claim that a Ministerial decision to approve a project…
Oct 11, 2017
The fourth round of NAFTA negotiations is set to start on October 11, 2017. But in the meantime, the Canada-European Union Comprehensive…
Oct 6, 2017
On October 5, 2017, the N.S. government took another step toward creating a globally competitive marine renewable energy industry and associated…
Sep 29, 2017
Atlantic Canada is at a turning point. The region’s history and economic development have historically been inextricably linked to the ocean.…
Aug 16, 2017
In the not-so-distant past, Canadian enforcement of its anti-corruption and anti-bribery legal regime has been relatively laid-back. But the…
Jul 28, 2017
All stakeholders in any major project development already know that adequate consultation before - rather than after - a project is approved is…
Jul 18, 2017
On July 12, 2017, the Federal Court of Canada made it clear that there are but two ways to avoid a tariff set by the Copyright Board of Canada…
Jul 11, 2017
The Canada-European Union Comprehensive Economic Trade Agreement (CETA) is making waves in Canada, and for good reason: it casts the net of…
Jul 10, 2017
The legal landscape of cannabis (a.k.a. marihuana, weed, pot …) is changing, both reflecting - and contributing to - more relaxed attitudes…
May 26, 2017
On May 19, 2017, the Supreme Court of Canada agreed to hear the appeal of the Federal Court of Appeal’s 2016 decision in Canada v Mikisew Cree…
May 11, 2017
The Extractive Sector Transparency Measures Act is one of several anti-bribery and anti-corruption laws aimed at fighting corruption in the…
May 1, 2017
NOTE: On November 30, 2017, the Supreme Court of Canada denied Geophysical Service Incorporated’s (GSI) application for leave to appeal the…
Apr 21, 2017
In three years (lightning speed in the law), medically assisted dying went from being illegal to being legal. A great deal has changed, a great…
Apr 20, 2017
On April 13, 2017, Canada’s federal government introduced legislation that, if passed into law, will legalize recreational cannabis in Canada.…
Apr 17, 2017
Recreational cannabis isn’t legal yet - but much of the associated stigma is already gone, usage is up and employers are feeling the workplace…
Apr 6, 2017
Adding a third jurisdiction to Gard Update’s comparison between privilege in the corporate context under U.S. and English law, McInnes Cooper…
Apr 5, 2017
NOTE: Consultants who were already lobbying and in-house lobbyists already employed by an organization when the new Act took effect were…
Mar 31, 2017
Legal uncertainty is never a good thing for industry: it’s a barrier to investment, and thus an adversary to growth. Unfortunately, the law is…
Mar 15, 2017
On March 9, 2017, the N.S. Court of Appeal stopped building inspection claims in their tracks when it decided that a defence based section…
Jan 25, 2017
Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business…
Jan 13, 2017
On January 11, 2017, Emera Inc. offered an electrifying opportunity for renewable energy developers to potentially access the New England…
Dec 20, 2016
As 2016 draws to a close, Oil & Gas Team @ McInnes Cooper offers its picks for the top three legal developments of 2016 that impacted the…
Dec 15, 2016
On December 13, 2016, the Province of Nova Scotia released for comment draft regulations that will establish the Solar for Community Buildings…
Dec 7, 2016
Recently, the Nova Scotia Supreme Court denied a motion for a temporary stay of proceedings to prevent the deployment of certain tidal devices…
Dec 5, 2016
It’s been a long time coming, but Newfoundland and Labrador is finally getting new public procurement legislation. On November 29, 2016, Bill…
Nov 28, 2016
On November 25, 2016, the Supreme Court of Canada decided privilege wins again - twice. In two separate decisions - Lizotte v. Aviva Insurance…
Nov 9, 2016
The balance between the public’s interest in accessing offshore petroleum resources data and operators’ commercial interests is at the heart…
Sep 12, 2016
On September 9, 2016, the Supreme Court of Canada decided in Musqueam Indian Band v. Musqueam Indian Band (Board of Review) that an Indian band…
Jul 7, 2016
On July 6, 2016, the Federal Department of Fisheries and Ocean’s (DFO) accepted the Ministerial Advisory Panel (MAP) recommendation in the…
Jul 5, 2016
The Ontario Court of Appeal has re-ignited the discussion about when a municipality will be held liable for its shoddy bylaw enforcement…
Jun 20, 2016
As of July 1, 2016, packed cargo containers to which the International Convention for the Safety of Life at Sea (SOLAS), Chapter VI, Regulation…
Jun 17, 2016
In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…
Jun 10, 2016
Administrative monetary penalties, or “AMPs”, are a new phenomenon in the Canadian offshore. AMPs were introduced to the Newfoundland &…
Jun 6, 2016
On June 2, 2016, the Supreme Court of Canada denied an Alberta First Nation’s request to appeal the Court of Appeal’s dismissal of its bid…
Jun 6, 2016
Each Provincial government is under the legal duty to consult; the manner in which each carries out its legal duty to consult differs depending…
May 24, 2016
It’s now certain: in Newfoundland & Labrador, liens can’t be placed on Crown land or holdbacks with the possible exemption allowing for…
May 10, 2016
On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…
May 2, 2016
We updated this publication on May 8, 2023. “Due diligence” is a legal defence to many charges under occupational health and safety (OHS)…
Apr 21, 2016
On April 15, 2016, Bill No. 149, The Mineral Resources Act (2016) (2016 Act), passed its second reading in the NS House of Assembly. Although…
Apr 19, 2016
On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the…
Apr 15, 2016
On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…
Mar 24, 2016
When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…
Mar 9, 2016
On January 11, 2016, the Ontario Superior Court of Justice sentenced a front-line supervisor to imprisonment for 3½ years for four counts of…
Feb 15, 2016
On February 26, 2016, the bulk of the offshore-related amendments of the Energy Safety and Security Act (ESSA, formerly known as Bill C-22) take…
Feb 1, 2016
On January 29, 2016, the New Brunswick Power Corporation (NB Power) kicked-off compliance with its obligations under the new Electricity from…
Dec 21, 2015
A practical and current guide created to help you navigate the increasingly important issues surrounding offshore decommissioning and…
Sep 8, 2015
The United Nations Convention on the Law of the Sea requires parties, of which Canada is one, to make payments in respect of oil production on…
Jul 17, 2015
On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how…
Jul 10, 2015
On April 15, 2015, British Columbia’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights…
Jun 25, 2015
We updated this publication on May 9, 2023. Most people know a company itself has occupational health and safety (OHS) obligations and risks…
Apr 15, 2015
On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…
Feb 9, 2015
NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…
Feb 2, 2015
On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…
Dec 10, 2014
“Corporate Social Responsibility” (CSR) as a concept has been floating around in business-speak for years – but stakeholders in the mining…
Jun 26, 2014
On June 26, 2014, in its groundbreaking decision on Aboriginal title in Read the SCC’s decision in Tsilhqot’in Nation v. B.C., 2014 SCC 44,…
Mar 15, 2013
Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…
Jan 8, 2013
On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…
Subscribe to McInnes Cooper to stay current with our leading insights on legal updates, trends, news, events, and services.