R. v. Lefthand (E.E.), 2005 ABQB 748

• Judge: Phillips, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 14, 2005
• Citations: 2005 ABQB 748;(2005), 388 A.R. 231 (QB)

R. v. Lefthand (E.E.) (2005), 388 A.R. 231 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.118

Her Majesty the Queen (respondent) v. Ezra Elliott Lefthand (appellant) and Treaty 7 Tribal Council (intervener)

(0403 23677 S1; 2005 ABQB 748)

Indexed As: R. v. Lefthand (E.E.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Phillips, J.

October 14, 2005.

Summary:

An accused was charged with fishing with bait contrary to s. 23 of the Alberta Fishery Regulations. The accused asserted that the regulation which closed the river to fishing with bait did not apply to him as it was an unjustified restriction and infringement of his right to fish for food pursuant to Treaty 7 and the Natural Resources Transfer Agreement as set out in the Constitution Act, 1930.

The Alberta Provincial Court, in a decision reported at 353 A.R. 52, held that the accused had failed to establish prima facie infringement of his right to fish for food and found him guilty of contravening s. 23. The accused appealed.

The Alberta Court of Queen's Bench allowed the appeal, quashed the conviction and directed that a judgment of acquittal be entered.

Fish and Game - Topic 963

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Effect of Constitution Act - An accused Aboriginal was charged with fishing with bait (Alberta Fishery Regulations, s. 23) - He asserted that the regulation which closed the river to fishing with bait infringed his right to fish for food under Treaty 7 as modified by the Alberta Natural Resources Transfer Agreement - The trial judge applied the infringement test endorsed in R. v. Sparrow (S.C.C.) and concluded that the accused had not established a prima facie infringement - The Alberta Court of Queen's Bench allowed an appeal - The trial judge erred in not considering that a legislative limitation on the method of a treaty right to fish was a variation in the factual context which affected the infringement test's application - Only reasonableness (not undue hardship and preferred means) had to be addressed - The bait band was implemented respecting purely recreational catch and release fishing to minimize the mortality associated with that fishing - There was no recreational aspect to the accused's fishing - He was fishing for food with bait - Death of fish was the desired result - The Crown agreed that he was using worms pursuant to his traditional right to fish for food - It was unreasonable to prohibit him from doing so - The Regulations, including the bait ban, were made in pursuit of a compelling and substantive conservation objective - However, the infringement was not justified where (1) the Crown had not consulted with the accused or any Treaty 7 Aboriginal; (2) without consultation, it could not be said that there was as little infringement as possible; (3) the activities of purely recreational fishers were given priority over Aboriginal food fishers which was inconsistent with the Crown's special trust or fiduciary relationship with the affected Aboriginal peoples - See paragraphs 37 to 82.

Fish and Game - Topic 967

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Treaty Indians - [See Fish and Game - Topic 963 ].

Fish and Game - Topic 969

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Allocation priorities - [See Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement - The Alberta Court of Queen's Bench reviewed the infringement test endorsed in R. v. Sparrow (S.C.C.) - The test applied to legislative infringements of not only Aboriginal rights, but also treaty rights - The party challenging the legislation had to prove a prima facie infringement - The burden was "fairly low" - Demonstrating that legislation on its face conflicted with a right might or might not be sufficient - Interference of any degree or significance with the exercise of a right did not necessarily constitute a prima facie infringement - The court noted that Lamer, C.J.C., in R. v. Gladstone (S.C.C.) equated a prima facie infringement to "any meaningful diminution of the appellants' rights" - Of significance, Lamer, C.J.C., observed that the test was determined to a certain extent by the factual context in which it was articulated and that variations in the factual context which affected the test's application had to be considered - An involvement of a treaty right, as modified by the Alberta Natural Resources Transfer Agreement, was a factual variation that had to be considered - See paragraphs 38 to 50.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - [See second Indians, Inuit and Métis - Topic 4419 ].

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, appld. [para. 21].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, appld. [para. 28].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 34].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 39].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 40].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 44].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 48].

R. v. Elk, [1980] 2 S.C.R. 166; 33 N.R. 516; 5 Man.R.(2d) 400, refd to. [para. 48].

Langton v. Langton (1987), 62 Sask.R. 107 (Q.B.), refd to. [para. 53].

R. v. Hunt (W.E.) (2002), 303 A.R. 240; 273 W.A.C. 240; 2002 ABCA 155, refd to. [para. 53].

R. v. Eagle Child (E.J.) (2005), 383 A.R. 169; 2005 ABQB 275, dist. [para. 54].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 59].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 62].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 64].

R. v. Jack, [1980] 1 S.C.R. 294; 28 N.R. 162, refd to. [para. 70].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 71].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666; 1999 BCCA 470, refd to. [para. 79].

Counsel:

David Gates, Q.C., and Erin Eacott, for the respondent;

Alan D. Hunter, Q.C., and Sheilah L. Martin, Q.C., for the appellant;

Jeffrey R.W. Rath and Jeffery K. Davidson, for the intervener.

Phillips, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this appeal on May 26 and 27, 2005, and delivered the following judgment on October 14, 2005.