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Editors --- "R v Kapp 2006 BCCA 277 - Case Summary" [2006] AUIndigLawRpr 51; (2006) 10(3) Australian Indigenous Law Reporter 55

R v KAPP

Court of Appeal for British Columbia (Finch CJ, Mackenzie, Low, Levine & Kirkpatrick JJ) 8 June 2006 [2006] BCCA 277

Fishing rights — allocation of resources — authority of the Canadian Government to treat Aboriginal peoples differently when setting resource use policy — Charter of Rights and Freedoms, ss 15 and 25 — discrimination test in Law v Canada

CoURt AnD tRIBUnAL DeCISIonS

Canadian Constitutional and Statutory Context:

In 1982, the Charter of Rights and Freedoms (‘the Charter’) was entrenched in the Constitution of Canada by the Constitution Act 1982. Section 15 of the Charter, at issue in this litigation, will, by sub-section (1), extend the equal protection and equal benefit of the law to all Canadians, regardless of race, national or ethnic origin, colour, religion, sex, or mental or physical disability. Sub-section 15(2) ‘does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups’, including those determined on the basis of categories mentioned in sub-section (1). The approach favoured by Canadian courts in the interpretation of section 15 is ‘purposive and contextual’, and is to be found in Law v Canada [1999] 1 SCR 497. The Charter will apply to provincial statutes, and may be infringed by statute, as well as ‘the actions of a delegated decision maker in applying it’: [74], Eldridge v BC(AG) [1997] 3 SCR 624 at [20] (La Forest J).

Section 25 of the Charter preserves, by sub-section (a), rights and freedoms ‘recognised by the Royal Proclamation of October 7, 1763’, and, by sub-section (b), ‘any rights or freedoms that now exist by way of land claims agreements or may be so acquired’. While s 25 creates no new rights, it has been said to ‘shield’ pre-existing rights: R v Agawa (1988) 43 CCC (3d) 266.

In Canada, Magna Carta fishing rights are abridged by the Fisheries Act RSC 1985 (‘the Act’), which provides for a system of licencing, administered by the Federal Department of Fisheries and Oceans under the wide discretion conferred on the Minister by section 7. Section 43 of the Act empowers the Governor-in-Council to make regulations under the Act.

In R v Sparrow [1990] 1 SCR 1075, the Supreme Court found that ‘there is a constitutional protection of the rights of aboriginal people to fish for food and for social and ceremonial purposes’ [28]. Subsequently, the Federal Government announced its Aboriginal Fisheries Strategy (‘AFS’), and, under section 43 of the Act, the Aboriginal Fisheries Agreements Regulations were made in 1992. In 1993, those regulations were replaced by the Aboriginal Communal Fishing Licences Regulations (‘ACFLR’) [32]. Under the ACFLR, agreements were made between the Federal Government and various aboriginal communities; several of those agreements, including the one at issue here, contained a Pilot Licence Program (‘PSP’) component, which allow aboriginal bands to sell the fish they catch under their ACFLR agreements: [42].

Facts:

In 1998, the Federal Crown filed informations concerning commercial gillnet fishing allegedly undertaken by the appellant and ten others during a ‘close time’, an activity prohibited by section 53(1) of the Pacific Fishery Regulations 1993 and therefore an offence under section 78 of the Act [3]. At the commencement of Trial, the appellant made a factual admission of guilt: [11].

In 2003, after a six-week trial, Kitchen PCJ entered a stay of proceedings as a remedy under section 24(1) of the Charter, as his Honour held that a breach of the equality rights in section 15(1) of the Charter had occurred, as a PSP had been operational in the same waters at the same time: [3].

In July 2004, Brenner CJSC overturned that order after the Crown brought a summary conviction appeal. His Honour held that the relevant PSP was not discriminatory for the purposes of section 15(1) of the Charter. His Honour set aside the stays of proceedings, entered convictions, and fined each of the eleven accused $100 and imposed suspended sentences of six months on each: [5]–[6].

In the British Columbian Court of Appeal, there were 54 appellants, five of whom were among the ten convicted and sentenced by Brenner CJSC. In general, the appellants sought either reinstatement of Kitchen PCJ’s stay of proceedings, or the reinstatement of analogous stays issued by other courts: [7].

Held, Dismissing the Appeal

1 It was within the discretion conferred by section 7 of the Act to make the relevant licence, and to attach a PSP to it: it was in furtherance of a ‘policy implemented under the ACFLR through the exercise of ministerial discretion [and] was a political choice. It was not adjudicative of people’s legal rights. Therefore it was not reviewable by the courts in the absence of a complaint of a breach of natural justice or a constitutional challenge’: [51] (Low J); cf [111]–[112] (Mackenzie J); [117] (Kirkpatrick J); [154] (Finch CJ); [159] (Levine J).

2 The ACFLR in issue, made with the Musqueam, Burrard and Tsawwassen bands does not ‘authorise exclusive commercial fishing by an organisation whose membership is based on race …’, as was asserted by the appellants: [14]. The relevant licence was a method of resource allocation, and did not create a separate [57] or exclusive [58], [60], [66] fishery.

3 The agreement reached with the Musqueam, Burrard and Tsawwassen bands, a discretionary implementation of the ACFLR, is consistent with section 15(1) of the Charter, either because it did not deprive that appellants of a benefit provided by law: [80] (Low J); [155] (Finch CJ) or because the deprivation was not discriminatory in purpose or effect: [100] (Mackenzie J).

4 The term other ‘rights and freedoms’ in section 25 of the Charter relevantly ‘includes benefits conferred on aboriginals by law or agreements directed at their special status as aboriginals’: [151]. A reading of section 15(1) of the Charter which does not take this into account would

‘render nugatory’ section 91(24) of the Constitution:

[149] (Kirkpatrick J). However, this line of reasoning is not accepted, or accepted as necessary, by the majority of the Court: cf [88]–[90] (Low J); [114] (Mackenzie J); [157] (Finch CJ); [161]–[162] (Levine J).

Vol 10 no 3, 2006