This case was heard in the Nova Scotia Supreme Court. It was an appeal of R v Martin, 2016 NSPC 14 (CanLII).
The respondents were Mi’kmaq and members of Waycobah First Nation. They were charged with fishing in a way that violated an Aboriginal Communal Fishing License. They admitted that they had been fishing in violation of the license but argued that they were justified in doing so because they were exercising their Aboriginal right to fish for food.
At trial in 2016, the court issued a stay of proceedings. The main reason for this was that the court decided that the Crown had a duty to consult with Waycobah First Nation before taking action to enforce a relevant agreement and that the Crown had failed to do so. The basis for the court’s decision came from a 1993 Department of Fisheries and Oceans (“DFO”) policy statement that recognized a duty to consult with any relevant Aboriginal authority whenever DFO took enforcement action, which the judge found to be binding.
The main issue on this appeal was whether a duty of enforcement consultation existed in law. Although the Court found that a duty to consult did arise in the case, it stopped short of saying that enforcement consultation was a hard and fast rule.
Based on fresh evidence, the Court decided that the Crown had consulted adequately with the Waycobah First Nation. It decided that Waycobah First Nation was given enough notice and information and that its feedback had been invited. The Court held that there was a reciprocal duty on Waycobah First Nation’s part to respond in a timely way with its concerns on the issue of enforcement, which it had not done.
The Court allowed the appeal in part. It set aside the stay of proceedings, and Mr. Martin and Mr. Googoo were convicted.