This case was heard in the Nova Scotia Provincial Court.
The accused were Mi'kmaq and registered members of the Waycobah First Nation in Cape Breton. They were charged with violating the federal Fisheries Act by fishing salmon at a time and a place where salmon were not permitted to be fished. They were also charged with jigging in inland waters contrary to the conditions of the Aboriginal Communal Fishing License that had been issued to the Band.
The Department of Fisheries and Oceans (“DFO”) had negotiated the Aboriginal Fisheries Strategy Agreement (the “Agreement”) with Waycobah First Nation for the 2007-2008 fishing season. This included the Aboriginal Communal Fishing License (the “License”), which set out certain regulations for how and where members of the Waycobah First Nation could fish. The Crown admitted that the Agreement infringed on Aboriginal food, social, and ceremonial fishing rights. However, it argued that this infringement was justified by the nature of the agreement that had been made between Waycobah First Nation and the Crown through the Agreement. In response, the accused argued that their Aboriginal fishing rights were infringed without justification.
The Court decided that the Agreement was both valid and enforceable and that the accused had no rights to fish for salmon outside of the regulations set out by the Agreement. While the accused did have an Aboriginal fishing right, it was temporarily limited by the existence of the Agreement.
However, the Agreement said that the DFO must consult with the Waycobah First Nation before taking action to enforce its terms. The accused were not charged until months after they had been apprehended, and during this time no consultation took place. Based on this, the Court issued a stay of proceedings (ordered a full stop on legal processes dealing with this issue).
This decision was later appealed in R v Martin, 2018 NSSC 141 (CanLII).