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1. The author of the
communication, dated 9 October 1998, is Mr George Howard, born 5 June 1946,
a member of the Hiawatha First Nation which is recognized under the law of
the State party as an Aboriginal people of Canada. He claims to be a victim
of a violation by Canada of his rights under articles 2, paragraph 2, and 27
of the Covenant. He is represented by counsel. The Optional Protocol entered
into force for Canada on 19 August 1976.
THE FACTS AS PRESENTED
2.1 The author's Hiawatha community forms part of the Mississauga First
Nations. These First Nations, among others, are parties to treaties
concluded with the Crown, including a 1923 treaty ("the 1923 Williams
treaty") dealing, inter alia, with indigenous hunting and fishing rights. It
provided, in return for compensation of $500,000, that the Mississauga First
Nations "cede, release, surrender, and yield up" their interests in specific
described lands, and further, "all the right, title interest, claim demand
and privileges whatsoever of the said Indians in, to, upon or in respect of
all other lands situated in the Province of Ontario to which they ever had,
now have, or now claim to have any right, title, interest, demand or
privileges, except such reserves as have been set apart for them by His
Majesty the King." [FN1]
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[FN1] In the first preambular paragraph to the treaty, it reads: "WHEREAS,
the Mississauga Tribe above described, having claimed to be entitled to
certain interests in the lands of the Province of Ontario, hereinafter
described, such interests being the Indian Title of the said Tribe to
fishing, hunting and trapping rights over the said lands, of which said
rights His Majesty, through His said Commissioners, is desirous of obtaining
a surrender...."
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2.2 On 18 January 1985, the author took some fish from a river close to, but
not on, his First Nation's reserve. He was fined after having been summarily
convicted in the Ontario Provincial Court for unlawfully fishing out of
season. The court rejected arguments of a constitutional right to fish based
on the protection in section 35 of the Constitution Act 1982 concerning
"existing aboriginal and treaty rights of the aboriginal peoples of Canada".
It held that the author's First Nations ancestors had surrendered fishing
rights in the 1923 treaties and that no such rights subsisted thereafter. On
9 March 1987, the Ontario District Court rejected the author's appeal.
2.3 On 13 March 1992, the Ontario Court of Appeal dismissed the author's
appeal from the District Court, holding that the 1923 treaty had
extinguished the fishing rights previously held by the author's First
Nation, and that the First Nation's representatives had known and understood
the treaty and its terms. On 12 May 1994, the Supreme Court rejected the
author's further appeal, holding that by "clear terms" the First Nations
surrendered any remaining special right to fish.
2.4 In 1990, the Canadian Supreme Court held in another case that "existing
rights" within the meaning of section 35 of the Constitution Act were
satisfied by evidence of continuity of the exercise of a right, even if
scanty at times, unless there was evidence of a clear and plain intention by
the Crown to extinguish the right. [FN2] Thereafter, the Ontario government
committed itself to negotiate arrangements with indigenous people as soon as
possible on the issue of hunting, fishing, gathering and trapping.
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[FN2] R v. Sparrow [1990] 1 SCR 1075 (SCC).
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2.5 On 7 March 1995, the so-called "Community Harvest Conservation
Agreements" (CHCAs) were signed by the Ontario Government and the Williams
Treaties First Nations, allowing for the exercise of certain hunting and
fishing rights. Under these agreements, which were renewable yearly, First
Nations were permitted to hunt and fish outside the reserves, for
subsistence, as well as for ceremonial and spiritual purposes, and barter in
kind.
2.6 On 30 August 1995, the newly elected Ontario government exercised its
right to terminate the CHCAs, wishing "to act in a manner consistent with"
the Supreme Court's decision in the author's case.
2.7 In September 1995, the First Nations affected by the termination sought
interim and permanent injunctions against the Ontario government. The
Ontario Court of Justice rejected the claims, holding that the government
had properly exercised its right, under the agreements, to terminate them
with notice of 30 days. The author contends that the Court made it "very
clear" that the outcome of further proceedings would go against the
applicants, and that it was therefore pointless to pursue further costly
remedies.
2.8 On 16 January 1997, the Supreme Court rejected the author's motion for a
rehearing of his case. The author had argued that developments in the
Supreme Court's jurisprudence to the effect that a clear intent to
extinguish fishing rights had to accompany a surrender of interest in land
in order to be valid [FN3] warranted a re-examination of his case.
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[FN3] R v. Adams [1996] 3 SCR 101 (SCC).
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THE COMPLAINT
3.1 The author complains generally that he and all other members of his
First Nation are being deprived of the ability to exercise their aboriginal
fishing rights individually and in community with each other and that this
threatens their cultural, spiritual and social survival. He contends that
hunting, fishing, gathering and trapping are essential components of his
culture, and that denial of the ability to exercise it imperils transmission
of the culture to other persons and to later generations.
3.2 Specifically, the author considers that the Supreme Court judgement in
his case is incompatible with article 27 of the Covenant. Referring to the
Committee's General Comment 23, he argues that the federal government of
Canada failed in its duty to take positive measures of protection by not
intervening in his favour in the judicial proceedings. Neither the Covenant
nor other applicable international law were referred to or considered in the
proceedings. The decision, moreover, has resulted in the denial of essential
elements of culture, spiritual welfare, health, social survival and
development, and education of children. The author argues that the Williams
Treaties are the only treaties that fail to protect indigenous hunting and
fishing rights, but instead aim at explicitly extinguishing them, and that
the Supreme Court's decision in this case is an anomaly in its case law.
Referring to the Committee's decision in Kitok v. Sweden, [FN4] the author
argues that, far from being "necessary for the continued visibility and
welfare of the minority as a whole", the restrictions in question imperil
the very cultural and spiritual survival of the minority.
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[FN4] Case No. 197/1985, Views adopted on 27 July 1988.
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3.3 The author contends that the unilateral abrogation of the CHCAs violates
article 27 of the Covenant. The author submits that article 27 imposes "an
obligation to restore fundamental rights on which cultural and spiritual
survival of a First Nations depends, to a sufficient degree to ensure the
survival and the development of the First Nation's culture through the
survival and development of the rights of its individual members". Although
providing some relief, the contractual nature of the CHCAs, and the facility
for unilateral termination, failed to provide adequate measures of
protection for the author and the precarious culture of the minority of
which he is a member.
3.4 The author also alleges violations of article 27 and article 2,
paragraph 2, of the Covenant in that the federal and provincial governments
are only prepared to consider monetary compensation for loss of the
aboriginal rights, rather than restore the rights themselves. Payment of
money is not an appropriate "positive measure" of protection, deemed to be
required by article 2, paragraph 2.
3.5 The author adds that his claim as described above should be interpreted
in the light of article 1, paragraph 2, of the Covenant, as the status of
First Nations as "peoples" has been recognized at the domestic level. He
contends that article 5, paragraph 2, of the Covenant precludes the State
party from contending that First Nations do not, in international law, have
such status, for it has been conferred on them by domestic law.
3.6 As a consequence of the above, the author requests the Committee to urge
the State party to take effective steps to implement the appropriate
measures to recognize and ensure the exercise of their hunting, fishing,
trapping and gathering rights, through a new treaty process.
3.7 The author states that the same matter has not been submitted for
examination under any other procedure of international investigation or
settlement.
VIDEOTAPE SUBMISSION BY THE AUTHOR
4. In his original communication of 9 October 1998, the author, referring to
the oral tradition of the Mississauga First Nations, requested the Committee
to take into account, in addition to written materials submitted by the
parties, oral evidence reproduced in the form of a videotape containing an
interview with the author and two other members of the Mississauga First
Nations on the importance of fishing for their identity, culture and way of
life. On 12 January 2000 the Committee, acting through its Special
Rapporteur on New Communications, decided not to accept videotape evidence,
with reference to the Optional Protocol's provision for a written procedure
only (article 5, paragraph 1, of the Optional Protocol). By letter dated 7
February 2000, the author furnished the Committee with a transcript of the
videotaped testimony in question. The Committee expresses its appreciation
for the author's willingness to assist the Committee by submitting the
transcript.
THE STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY OF THE COMMUNICATION
5.1 By submission of 28 July 2000, the State party argues that the
communication is inadmissible for failure to exhaust domestic remedies. The
State party points out that current laws regulate, but do not prohibit,
hunting and fishing activities. The regulations, dealing with licensing
requirements, catch and hunting limits, and seasonal restrictions, are
intended to advance objectives of conservation, safety and ethical hunting
practices. The author, as anyone else, is able to exercise his traditional
practices within these confines.
5.2 The State party observes that the Williams Treaties First Nations have
an action currently pending in the Federal Court, alleging a breach of
fiduciary duty by the federal and Ontario governments. They seek, inter
alia, a remedy that would restore their hunting and fishing rights outside
the reserves. The parties have currently stayed this action by agreement,
while negotiations are continuing.
5.3 The State party further observes that the Williams Treaties First
Nations did not avail themselves of the possibilities to challenge the
termination of the CHCAs. While the initial action was dismissed on grounds
of procedural defect, the Court made clear that it was open to them to bring
a fresh application. They did not do so. The State party notes that, while
the author contends that to do so would have been "pointless", it has been
the Committee's constant approach that doubts about the effectiveness of
remedies is not sufficient reason not to exhaust them.
5.4 Thirdly, the State party observes that it would be open to the Williams
Treaties First Nations to seek the assistance of the independent advisory
Indian Claims Commission in resolving a dispute in their claims negotiations
with the federal government. This settlement procedure has not been
exercised.
THE AUTHOR'S COMMENTS
6.1 By submission of 21 December 2000, the author rejects the State party's
observations, arguing that domestic remedies have been exhausted, for the
Supreme Court's binding decision in his case confirmed the extinguishment of
his aboriginal rights.
6.2 The author argues that the current proceedings before the Federal Court
raise different issues and cannot grant him the remedy he seeks. The current
proceedings concern breach of fiduciary duty, rather than the restoration of
aboriginal harvesting rights, and seek (in current form) a corresponding
declaration with "a remedy in fulfilment of the Defendant Crown's obligation
to set aside reserves, or damages in lieu thereof". In any event, the
Federal Court is bound to follow the Supreme Court's decision to the extent
that it held that the aboriginal rights in question had been extinguished by
the Williams Treaties. The author notes that while the Federal Court
proceedings may allow his community to acquire additional lands and fair
compensation for the 1923 surrender, they will not restore his harvesting
rights, since the Supreme Court's decision has held they were extinguished
at that time.
6.3 As to the proceedings to challenge the abrogation of the CHCAs, the
author argues that the outcome of further proceedings was "clearly
predictable". The judge stated that he had "determined that on the factual
merits there is no support for the granting of any declaratory or injunctive
relief". Referring to the Committee's jurisprudence, [FN5] the author notes
that the Supreme Court in his case had already "substantially decided the
same question in issue" and that therefore there was no need for recourse to
further litigation. Moreover, the Supreme Court had denied his own
application to revisit its decision in his case, which therefore remained
binding on the lower courts.
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[FN5] Lovelace v. Canada Case No. 24/1977, Views adopted on 19 September
1979.
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6.4 To the extent that the State party suggests that negotiations should be
pursued, the author argues that these are not "remedies" in terms of the
Optional Protocol, and, in any event, that the State party has not shown
they would effectively restore the harvesting rights. On 16 May 2000, the
First Nations were informed that negotiations would not resume without the
presence of the Ontario government as a party. Moreover, the Indian Claims
Commission is an advisory body whose recommendations are not binding upon
the federal government. Additionally, the Commission may only facilitate
certain categories of dispute, and the federal government has already
characterized the issue of restoration of harvesting rights as falling
outside those categories.
SUBSEQUENT SUBMISSIONS OF THE PARTIES
7.1 By submission of 12 July 2001, the State party responded to the author's
comments, arguing that while the author claims not to be acting as a
representative of the Williams Treaties, but on his own behalf, he is in
fact clearly acting on their behalf [FN6] and requesting a collective
remedy.
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[FN6] The State party provides documentation in the form of an application
for funding identifying work on "United Nations petition" as part of a First
Nations' workplan.
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7.2 In terms of current Federal Court proceedings, the State party argues
that it is highly relevant that the First Nations are seeking a remedy for
breach of fiduciary duty arising from the surrender of their aboriginal
rights, including hunting and fishing rights. While they currently seek
compensation, they sought a remedy of restoration at an earlier point and of
their own accord modified those pleadings to omit this aspect of remedy. The
State party points out that it would be open to seek a remedy of restoration
of hunting and fishing rights in the appropriate provincial jurisdiction.
Indeed, the First Nations have initiated an action in the Ontario Superior
Court of Justice.
7.3 The State party points out that the Supreme Court's decision in the
author's case was essentially limited to the factual question of whether he
had an existing right to fish in the area where he was caught fishing and
charged. It did not address questions of breach of fiduciary duties, and
remedies available for such a breach, and accordingly these questions remain
open before the courts.
7.4 On 5 September 2001, the author further responded, arguing that he
satisfies all conditions of admissibility: in particular, he is a victim
within the meaning of article 1 of the Optional Protocol, being denied the
ability by highest judicial decision to practice fishing as a member of a
"minority" within the meaning of article 27. Referring to previous cases
decided by the Committee, [FN7] he argues that it is of no relevance that a
remedy he might obtain under the Optional Protocol might benefit others in
his community. He alleges specific violations of his rights under the
Covenant. Finally, he has exhausted all legal remedies open to him. He
submits that it would be unjust to be deprived of his right to present an
individual petition based on the Covenant to the Committee simply because
his First Nation is pursuing other remedies before Canadian courts under
domestic law, along with other First Nation parties to the Williams
Treaties.
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[FN7] Davidson v. Canada Case No. 359/1989, Views adopted 31 March 1993, and
Länsman v. Finland Case No. 671/1995, Views adopted on 30 October 1996.
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7.5 The author argues that, under the current state of Canadian law, it is
not possible for courts to restore extinguished aboriginal rights. [FN8] All
the courts, including the Supreme Court of Canada, are bound by the
constitutional recognition in 1982 of "existing" aboriginal rights only. He
contends that it is irrelevant that the Supreme Court in his case did not
address the fiduciary breach question - even if it had, the outcome would
have remained unaltered. Similarly, in terms of further action on the
abrogation of the CHCAs, the courts would have been bound by the Supreme
Court's determination that no aboriginal right existed in the author's case.
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[FN8] The author refers to Ontario (Attorney-General) v. Bear Island
Foundation [1991] 2 SCR 570 (SCC).
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7.6 On 15 January 2003, the State party made further submissions, disputing
that the current state of its law makes restoration of extinguished rights
impossible. The State party points out that in the Supreme Court decision
cited to this effect, the Court did not rule on what, if any, would be the
Crown's fiduciary obligations to the First Nation in the process of
surrender/extinguishment of the First Nation's rights, whether there had
been a breach of any such obligations, and, if so, what remedies might be
available. However, precisely these issues are either raised in the
proceedings pending in the Federal Court by the Williams Treaties First
Nations, or could be raised in the action before the Ontario Superior Court
of Justice.
7.7 The State party further states that the federal government has not
refused to negotiate hunting, fishing, trapping and gathering rights with
the Williams Treaties First Nations. The federal government however
considers that the restoration of such rights would require the
participation of the Ontario State government, as Ontario alone possesses
constitutional jurisdiction over provincial Crown lands and the right to
pursue harvesting thereon. The Ontario government is reviewing the First
Nations' claims and has not yet made a determination as to whether to accept
the claim for negotiations.
THE COMMITTEE'S DECISION ON ADMISSIBILITY
8.1 At its 77th session, the Committee considered the admissibility of the
communication.
8.2 The Committee ascertained that the same matter was not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a), of the Optional Protocol.
8.3 As to the State party's argument that the author is acting on behalf of
third parties, the Committee noted that the author claimed personally to be
a victim, within the meaning of article 1 of the Optional Protocol, of an
alleged violation of his rights under the Covenant, by virtue of the Supreme
Court's decision affirming his conviction for unlawful fishing. As to the
position of further individuals, the Committee recalled its jurisprudence
that there is, in principle, no objection to a group of individuals, who
claim to be similarly affected, collectively to submit a communication about
alleged breaches of their rights. [FN9] In the present case, however, to the
extent that the communication could be understood to have been brought on
behalf of other individuals or groups of individuals, the Committee noted
that the author had provided neither authorization by such persons nor any
arguments to the effect that he would be in the position to represent before
the Committee other persons without their authorization. Consequently, the
Committee found the communication inadmissible under article 1 of the
Optional Protocol, to the extent it could be understood to have been
submitted on behalf of other persons than the author personally.
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[FN9] See Ominayak et al. v. Canada Case No. 167/1984, Views adopted on 26
March 1990, at paragraph 32.1.
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8.4 Concerning the State party's arguments that on-going negotiations might
provide an effective remedy, the Committee referred to its jurisprudence
that remedies that must be exhausted for the purposes of the Optional
Protocol are, primarily, judicial remedies. Negotiations proceeding on the
basis of, inter alia, extralegal considerations including political factors
cannot generally be regarded as being of analogous nature to these remedies.
Even if such negotiations were to be regarded as an additional effective
remedy to be exhausted in specific circumstances, [FN10] the Committee
recalled, with reference to article 50 of the Covenant, that the State party
is responsible, in terms of the Covenant, for the acts of provincial
authorities as much as federal authorities. In the light of the absence of a
decision, to date, by the provincial authorities, on whether to accept the
First Nations' claim for negotiations, the Committee would in any event
regard this remedy as being unreasonably prolonged. Accordingly, on the
current state of negotiations, the Committee did not, on either view, regard
its competence to consider the communication excluded by virtue of article
5, paragraph 2 (b), of the Optional Protocol.
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[FN10] See Jonassen et al. v. Norway Case No. 942/2000, Decision adopted on
25 October 2002.
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8.5 The same applied in relation to the argument that actions are pending in
the Federal Court and in the Ontario Superior Court of Justice. Besides the
fact that these actions were brought by First Nations parties rather than
the author and that their outcome would have no bearing on the author's
conviction in 1985 for unlawful fishing, the Committee considered that
insofar as the author might individually benefit from such a remedy, the
remedy was unreasonably prolonged in relation to him. The Committee was
therefore satisfied that the author, in pursuing his own case through to the
Supreme Court, exhausted domestic remedies in respect of the claimed
aboriginal rights to fish, which are an integral part of his culture.
8.6 On 1 April 2003, the Committee therefore decided that the communication
was admissible to the extent that the author was being deprived, under the
sanction of criminal law, of the ability to exercise, individually and in
community with other members of his aboriginal community, his aboriginal
fishing rights which are an integral part of his culture.
THE COMMITTEE'S CONSIDERATION OF THE MERITS OF THE COMMUNICATION
STATE PARTY'S SUBMISSION ON THE MERITS
9.1 By submission of 23 March 2004, the State party comments on the merits
of the communication. Contesting the author's claims of violations of
articles 2(2) and 27 of the Covenant in his case, the State party submits
that the author is able to enjoy, individually and in community with the
other members of the Hiawatha First Nation, the aspects of his culture
related to fishing.
9.2 The State party recalls that in the 1923 Williams Treaty, the author's
First Nation agreed to give up its aboriginal rights to fish, except for a
treaty right to fish in the reserves set aside for them. The Ontario Court
has held that this treaty right to fish extends to the waters that are
adjacent to the reserves and the Government has interpreted this to mean up
to 100 yards from shore in waters fronting the reserve boundaries. In these
waters the members of the Hiawatha First Nation do not have to comply with
Ontario's normal fishing restrictions, such as closed seasons and catch
limits and have a right to fish year-round for food, ceremonial and social
purposes. In this context, the State party points out that neither the
author nor the Hiawatha First Nation depends on fishing for their
livelihood. It is said that the members of the Hiawatha First Nation (of
whom 184 members live on the reserve and 232 outside) have tourism as their
main source of income and that recreational fishing is a significant
attraction for tourists to the area. The fish of Rice Lake, on the shores of
which the Hiawatha First Nation lives, are said to be among the most
abundant in the area.
9.3 The State party further states that in addition the author can obtain a
recreational fishing licence enabling him to fish in the lakes and rivers of
the Kawartha Lakes region surrounding the Hiawatha First Nation reserve from
May to November. The limited restrictions placed on the fishery are targeted
and specific to particular fish species and are intended to ensure that the
particular vulnerability of each species is duly considered, and that all
persons using the resource, including the author and the other members of
the Hiawatha First Nation, benefit there from. Limits are imposed on what
species of fish may be caught, when each species may be caught and how many
may be caught. [FN11] When the waters bordering the Hiawatha Reserve are
closed from 16 November to late April for conservation purposes, the author
can fish for most species in other lakes and rivers further away from
January to March and from May to December.
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[FN11] The State party indicates that with a resident sport fishing licence,
the author can daily catch and possess : 6 walleye, 6 mouth bass, 6 northern
pike, 5 trout or salmon, 1 muskellunge, 25 whitefish and unlimited yellow
perch, crappie, carp and catfish.
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9.4 The State party thus argues that, since the author is able to fish all
year round, share his catch with his family and show his children and
grandchildren how to fish, his right to enjoy the fishing rights belonging
to his culture has not been denied to him. The State party submits that the
author's assertion that there is not enough fish where he is allowed to fish
cannot be reconciled with the fact that he can fish adjacent to the Hiawatha
First Nation reserve in the Otonabee river, a short distance downstream from
where he was fishing on 18 January 1985 and is also inconsistent with
fishery surveys and with public statements made by the Hiawatha First Nation
in order to attract tourists. Lawful fishing opportunities exist for the
author also in the winter season when the waters next to the Hiawatha
reserve are closed for fishing.
9.5 As to the author's argument that the Supreme Court's decision in his
case is inconsistent with the State party's obligations under article 27 of
the Covenant, the State party recalls the issues and arguments presented to
the courts and their decisions. The author was charged for unlawfully
fishing during a closed period, because he had taken some pickerel fish from
the Otanabee river near but not on the Hiawatha First Nation reserve. At
trial before the Provincial Court of Ontario, the author pleaded not guilty
and argued that he had a right to fish as a member of the Hiawatha First
Nation, that this right was not extinguished by the 1923 Williams Treaty and
that this right should not be abrogated by the fishing regulations. The
trial judge, having been provided with hundreds of pages of documentary
evidence, concluded that the lands where the offence was alleged to have
occurred were in fact ceded by the 1923 Treaty, and that any special rights
as to fishing were included in that. On appeal in the District Court of
Ontario, the judge found that he could not conclude that the Indians were
mislead at the time of the 1923 Treaty, and that section 35 of the
Constitution Act 1982, recognizing and confirming the existence of
aboriginal treaty rights of the aboriginal people of Canada, did not create
new rights or reconstitute the rights that had been contracted away. In the
Ontario Court of Appeal, the central issue was whether the rights of the
Hiawatha First Nation members to fish on the Otanabee river had been
surrendered by the 1923 Williams Treaty. The author argued that the Treaty
should not be interpreted so as to extinguish the rights, or alternatively
that the Rice Lake Band (as the Hiawatha First Nation was then called) did
not have sufficient knowledge and understanding of the Treaty's terms to
bind the Band to it. The Court found that the language of the 1923 Treaty
clearly and without ambiguity showed that the Band surrendered its fishing
rights throughout Ontario when it entered into that Treaty and concluded
that the Crown had satisfied its onus of establishing that the
representatives of the Band knew and understood the treaty and its terms. On
appeal to the Supreme Court, the central issue was whether the signatories
to the 1923 Williams Treaty had surrendered their treaty right to fish. The
Supreme Court after having carefully reviewed the lower courts' assessment
of the evidence, endorsed their findings and concluded that the historical
context did not provide any basis for concluding that the terms of the 1923
Treaty were ambiguous or that they would not have been understood by the
Hiawatha signatories. In this context, the Court pointed out that the
Hiawatha signatories were businessmen and a civil servant and that they all
were literate and active participants of the economy and society of their
province.
9.6 The State party argues that the author's attempt to undermine the
courts' findings of fact goes against the Committee's principle that it is
for the courts of the States parties and not for the Committee to evaluate
facts and evidence in a particular case. The State party also takes issue
with the author's suggestion that the Supreme Court's decision in his case
reversed a long held understanding of the Hiawatha First Nation that after
1923 they maintained their aboriginal right to fish and were not subject to
Ontario's fishing laws. According to the State party this proposition was
not supported by any evidence during the court hearings and in fact, the
evidence was to the contrary.
9.7 Finally, the State party argues that article 27 must allow for a
minority to make a choice to agree to the limitation of its rights to pursue
its traditional means of livelihood over a certain territory in exchange for
other rights and benefits. This choice was made by the Hiawatha First Nation
in 1923 and, in the State party's opinion, article 27 does not permit the
author to undo his community's choice over 80 years later. The State party
notes that the author did not raise any argument related to Canada's
international obligations, including article 27 of the Covenant, during the
court proceedings.
AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSION
10.1 On 30 August 2004, the author comments on the State party's submission
and reiterates that the Williams Treaties are the only treaties in Canada
which do not protect Aboriginal hunting, fishing, trapping and gathering
rights, but rather are held to have explicitly extinguished these rights. As
a consequence, the author claims that he does not enjoy the same special
legal and constitutional status as all other Aboriginal peoples of Canada
enjoying Aboriginal or treaty rights. The author considers that monetary
compensation for these rights is no substitute for the necessary measures of
protection of the minority's culture within the meaning of article 27 of the
Covenant.
10.2 The author argues that as a member of a minority group, he is entitled
to the protection of economic activities that comprise an essential element
of his culture. [FN12] The exercise of cultural rights by members of
indigenous communities is closely associated with territory and the use of
its resources. [FN13] The author notes that the State party does not deny
that fishing is an essential element of the culture of the minority to which
he belongs, but rather focuses on its assertion that the author is in a
position to exercise this right to fish. The author states, however, that
the State party does not identify whether he is able to exercise his
cultural right to fish as distinct from, and additional to, any statutory
privileges to fish that are available to all persons, indigenous and
non-indigenous, upon obtaining through payment a licence from the
Government.
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[FN12] Kitok v. Sweden, communication No. 197/1985, adopted on 27 July 1998,
CCPR/C/33/D/197/1985
[FN13] See the Human Rights Committee's General Comment No.23 The rights of
minorities to enjoy, profess and practice their own culture, 1994
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10.3 The author further challenges the State party's focus on fishing only
and submits that this is based on an excessively narrow reading of the
Committee's admissibility decision. According to the author, his
communication also includes his rights to hunting, trapping and gathering
since these are an equally integral part of his culture which is being
denied.
10.4 The author emphasizes that it is the cultural and societal importance
of the right to fish, hunt, trap and gather which are at the heart of his
communication, not its economic aspect. The fact that the members of the
Hiawatha First Nation participate in the general Canadian economy cannot and
should not diminish the importance of their cultural and societal traditions
and way of life.
10.5 Referring to the size of the Hiawatha First Nation reserve (790.4
hectares) and the reserve shared with two other First Nations (a number of
islands), the author argues that it is unreasonable to suggest that he is
able to meaningfully exercise together with members of his community his
inherent rights to fish and hunt within the confines of the reserves and the
waters immediately adjacent to them. These rights are meaningless without
sufficient land over which to exercise them. In this context, the author
reiterates that with the exception of the First Nations parties to the
Williams Treaties, all other First Nations in Canada who have concluded
treaties with the Crown have had their harvesting rights recognized far
beyond the limits of their reserves – throughout their traditional
territories.
10.6 As to the State party's argument that he can fish with a recreational
licence, the author asserts that he is not a recreational fisher. In his
opinion, the regulations governing recreational fishing are designed to
enhance sports fishing and make clear that all fishing is done as a
privilege and not a right. The general rule is prohibition of fishing
activities, except as provided for in the regulations and pursuant to a
licence. The regulations make exceptions to the general rule for persons in
possession of a licence issued under the Aboriginal Communal Fishing Licence
Regulations, but the author states that he has been denied the benefit of
this provision because of the Court's decision that his aboriginal rights
had been extinguished by the Williams Treaty.
10.7 The author observes that by equating his fishing activities with those
of a recreational fisher, the State party deems his access to fishing a
privilege not a right. His fishing activities are thus not granted priority
over the activities of sport fishers and can be unilaterally curtailed by
the State without any obligation to consult the author or the leaders of his
First Nation. According to the author, this treatment is contrary to that
afforded to other aboriginal persons in Canada for whom the Constitution Act
1982 provides that aboriginal and treaty rights have priority over all other
uses except for conservation.
10.8 The author argues that the State party has an obligation to take
positive measures to protect his fishing and hunting rights, and that to
allow him to fish under recreational regulations is not a positive measure
of protection required by article 2(2) of the Covenant.
10.9 He further submits that he is prohibited from fishing in the
traditional territory of the Hiawatha First Nation from 16 November to late
April every year. According to the author, the State party's argument that
he can fish in lakes and rivers further away from the Hiawatha reserve fails
to take into account the concepts of aboriginal territory as these lakes are
not within the traditional territory of the Hiawatha First Nation. The
author further argues that the Regulations give priority to fishing by way
of angling and that traditional fishing methods (gill netting, spearing,
bait-fish traps, seines, dip-nets etc) are restricted. As a result, many of
the fish traditionally caught by Mississauga people cannot be fished by
traditional netting and trapping methods. The author also mentions that he
cannot ice-fish in the traditional grounds of his First Nation. He refers to
a judgement of the Supreme Court (R. v. Sparrow, 1990) where the court
directed that prohibiting aboriginal peoples from exercising their
aboriginal rights by traditional methods constitutes an infringement of
those rights, since it is impossible to distinguish clearly between the
right to fish and the method of fishing. Finally, the author argues that the
catch limits imposed by the Regulations effectively restrict him to fishing
for personal consumption only.
10.10 For the above reasons, the author maintains that his rights under
article 27 and 2(2) of the Covenant have been violated and requests the
Committee to urge the State party to take effective steps to implement the
necessary measures to recognize and ensure the exercise of constitutionally
protected hunting, fishing, trapping and gathering rights through a treaty
process.
FURTHER SUBMISSIONS OF THE PARTIES [FN14]
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[FN14] A further State party's submission dated 2 June 2005 was received by
the Committee. This submission, however, was considered by the Committee to
contain no new elements.
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11.1 By submission of 15 December 2004, the State party takes issue with the
author's assertion that the scope of the Committee's admissibility decision
includes hunting, trapping and gathering rights. It states that the text of
the admissibility decision is clear and that the issue before the Committee
only concerns "fishing rights which are integral to" the author's culture.
If the author does not agree to this limitation, he is free to request the
Committee to review its decision on admissibility, in which case the State
party reserves its right to make further submissions on this issue.
11.2 The State party also submits that the 1923 Williams Treaty was
negotiated upon request by the First Nations themselves, who were looking
for recognition of their claims to rights in the traditional hunting
territories in Ontario lying north of the 45th parallel. After inquiring
into the claims, treaties were concluded by which the First Nations gave up
their rights over the territories in Ontario in exchange for compensation.
The Rice Lake Band was familiar with the treaty process and as examined by
the Court of Appeal in the author's case, the minutes of the meeting of the
Band in Council show that the draft treaty was read, interpreted and
explained before it was unanimously approved.
11.3 As to the author's claims with respect to the restrictions on what
species he can fish, and by what method, the State party argues that these
claims under article 27 should have been raised before. The State party
notes in this respect that the author's original communication focused on
the seasonal restrictions of his ability to fish and raised further
arguments concerning his ability to transmit his knowledge to his children,
participate with his community and fish for subsistence. He raised no claims
in respect to being prevented from fishing for traditional fish or with
traditional methods and the State party has thus not been requested to make
submissions in respect of the admissibility and merits of these claims. The
State party further notes that the evidence presented by the author in
respect to these claims is very general and not specific to the Hiawatha
First Nation, calling into question its reliability. For these reasons, the
State party requests the Committee not to address these claims.
11.4 With regard to the author's assertion that the State party has an
obligation to take positive measures to protect his fishing rights and that
it has failed to do so, the State party submits that the author has a
constitutionally protected treaty right to fish within his Nations' reserve
and the waters adjacent to it. In the reserve that the author's First Nation
shares with the Mississaugas of Curve Lake and of Scugog Island (Trent
Reserve No. 36A) the author's treaty right to fish is also protected. The
State party points out that the shared reserve is made up of over one
hundred islands spread throughout twelve lakes and rivers in the Kawarthas
and that the waters adjacent to these islands provide significant fishing
opportunities to the author and members of the Hiawatha First Nation. In
these waters, the author may fish at any time of the year, using his
community's traditional techniques. The State party submits that the above
constitutional protection does constitute a positive measure.
11.5 The State party further explains that under the major land cession
treaties of Canada, including the Williams treaties, what were once
aboriginal rights to hunt and fish were redefined and reshaped through the
treaties. The terms of the treaties varied depending on the purpose of the
treaty and the circumstances of the parties. According to the State party,
treaties in remote areas with sparse population and little urban development
protect the pursuit of fish and wildlife for subsistence as appropriate in
the context. The Williams treaties concerned however lands in close
proximity of urbanization and protection of these rights for subsistence
were not an issue.
11.6 As to the author's argument that a recreational fishing licence is a
mere privilege and not a right, the State party observes that article 27
does not require that a cultural activity be protected by way of right.
[FN15] In the State party's opinion, licensing in and of itself does not
violate article 27. The State party further explains that under an Ontario
recreational fishing licence, a person may choose to fish not for
recreational purposes but for food, social, educational or ceremonial
purposes.
-------------------------------------------------------------------------------------------------------------------------------
[FN15] The State party refers to the Committee's Views in Kitok v. Sweden,
communication No. 197/1985, CCPR/C/33/D/197/1985, para. 9.8
-------------------------------------------------------------------------------------------------------------------------------
11.7 The State party contests the author's argument that the catch limits
under the regulations limit him to fishing for personal consumption only. It
explains that there are no limits on the number of fish he can catch in the
waters on and adjacent to the reserves, and that in the waters beyond this
area in open season he can catch unlimited yellow perch and panfish, as well
as daily 6 walleye, 6 bass, 6 northern pike, 5 trout or salmon, 1
muskellunge and 25 whitefish. The State party concludes that it is thus
untenable to suggest that the author can fish for personal consumption only.
It further notes that the author has not presented any evidence as to the
needs of his extended family and why they cannot be met.
11.8 The State party also contests the author's statement that he is
prohibited from fishing in the traditional territory of the Hiawatha First
Nation from 16 November to late April every year and reiterates that the
author can fish year round in the waters of Rice Lake and the Otonabee river
adjacent to the Hiawatha First Nation reserve, as well as in the waters
adjacent to the islands in the Trent reserve. With a recreational licence,
he can also fish in Scugog Lake in January and February, as well as in lakes
and rivers of neighbouring fishing divisions. In this context, the State
party notes that the author has presented no evidence that would support his
assertion that these waters are outside the traditional territory and
fishing grounds of the Hiawatha Nation. According to the State party
evidence shows on the contrary that the seven Williams Treaties First
Nations shared their traditional territory.
11.9 Finally, the State party reiterates that the author's requests for
findings and remedies on behalf of others than himself are beyond the scope
of the admissibility decision in the present case. The State party recalls
that the Hiawatha First Nation and the other Williams Treaties First Nations
are in the midst of litigation with the Crown on behalf of their members, as
they are seeking a judicial remedy for an alleged breach of the Crown's
fiduciary duty with respect of the surrender of certain hunting, fishing and
trapping rights in the Williams Treaties. It would therefore be
inappropriate for the author to seek findings and remedies on behalf of the
First Nations when they are not properly before the Committee, and these
findings would presuppose the result in the Williams Treaties First Nations'
domestic litigation. If the Committee, contrary to the State party, were to
find that the author's article 27 rights as they relate to fishing had been
infringed, legislative and regulatory mechanisms exist by which the State
could provide increased fishing opportunities to the author and his
community.
11.10 In his reply to the State party's further submission, the author, in a
submission dated 5 April 2005, submits that the islands in the shared Trent
Waters Reserve, although numerous, are extremely small, many constituting
groups of bare rocks and that the fishing opportunities are thus
insignificant. The average size of the islands is said to be 1.68 acre or
0.68 hectare.
11.11 The author further reiterates that the comparison with modern treaties
is useful and shows that notwithstanding urban and economic development and
non reliance by some Aboriginal persons on traditional activities for
subsistence, all treaties except for the Williams treaties recognize and
protect hunting, fishing and trapping rights as well as their exercise over
a reasonable part of the indigenous' community's traditional territory.
11.12 In reply to the State party's assertion that the author has not
provided evidence that Lake Scugog and other lakes and rivers of
neighbouring fishing divisions are outside the traditional fishing grounds
of the Hiawatha First Nation, the author refers to a map indicating
Mississauga family hunting territories, based on the description of these
territories made during testimony to the Williams Treaty Commissioners in
1923. According to the author the map shows that Hiawatha traditional
hunting territory was located near Rice Lake and did not include Lake Scugog.
11.13 The author also takes issue with the State party's statement that the
Williams treaty was properly negotiated with the author's First Nation, and
argues that there was only one day of hearing in the community and that the
communities' legal counsel was not allowed to participate. No attention was
paid to the cultural and religious significance of fishing for the
Mississauga and traditional non-commercial fishing rights were almost
extinguished. Accordingly, the author reiterates his argument that the State
party has not implemented the Williams Treaties in a way to ensure that the
author is able to enjoy his culture.
11.14 In reply to the State party's argument that the article 27 does not
require that a cultural activity be protected by way of right, the author
argues that his situation is distinguishable from the situation of the
author in the case referred to by the State party. In that case, the
Committee found that the legislation affecting the author's rights had a
reasonable and objective justification and was necessary for the continued
viability and welfare of the minority as a whole. The same cannot be said of
the fishing regulations applied to the author in the present case.
11.15 The author rejects the State party's argument that he has raised new
claims by bringing up the issue of fishing methods as it would be artificial
to distinguish between his right to fish and the particular manner in which
that right is exercised. He emphasizes that this is not a new claim but that
it is the same claim that he has brought under article 27 before the
admissibility decision of the Committee.
11.16 The author rejects the State party's argument that he is requesting an
inappropriate remedy. He states that no substantive negotiations have taken
place between the First Nations and Ontario, but only preparatory meetings.
The author further argues that during these meetings it had been agreed that
the fact that discussions were occurring would not be interpreted or put
forward as an admission of fact, law or other acknowledgement contrary to
the position of the parties in the present communication, and that the State
party's argument thus breaches this agreement. The author reiterates that
the only sufficient remedy is the negotiation in good faith on a timely
basis of an agreement that would, on a secure and long-term basis, enable
the author to enjoy his culture, and that the tools best suited for this
task in Canadian domestic law are treaty protected rights.
THE COMMITTEE'S CONSIDERATION OF THE MERITS OF THE COMMUNICATION
12.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
12.2 In relation to the scope of the decision on admissibility in the
present case, the Committee observes that at the time of the admissibility
decision, the author had presented no elements in substantiation of his
claim concerning the right to hunt, trap and gather or concerning the
exhaustion of domestic remedies in this respect. The Committee also notes
that the author has raised claims concerning the denial of the use of
traditional fishing methods and catch limits only after the communication
was declared admissible. In the Committee's opinion, nothing would have
stopped the author from making these claims in due time, when submitting his
communication, if he had so wished. Since the State party had not been
requested to make submissions on the admissibility of these aspects of the
author's claim and the domestic remedies which the author exhausted only
dealt with his conviction for fishing out of season, these aspects of the
author's claim were not encompassed in the Committee's admissibility
decision and the Committee will therefore not consider these issues.
12.3 Both the author and the State party have made frequent reference to the
1923 Williams treaty which was concluded between the Crown and the Hiawatha
First Nation and which according to the Courts of the State party
extinguished the author's Nation's right to fish outside their reserves or
their adjacent waters. This matter, however, is not for the Committee to
determine.
12.4 The Committee notes that it is undisputed that the author is a member
of a minority enjoying the protection of article 27 of the Covenant and that
he is thus entitled to the right, in community with the other members of his
group, to enjoy his own culture. It is not disputed that fishing forms an
integral part of the author's culture.
12.5 The question before the Committee, as determined by its admissibility
decision, is thus whether Ontario's Fishing Regulations as applied to the
author by the courts have deprived him, in violation of article 27 of the
Covenant, of the ability to exercise, individually and in community with
other members of his group, his aboriginal fishing rights which are an
integral part of his culture.
12.6 The State party has submitted that the author has the right to fish
throughout the year on and adjacent to his Nation's reserves and that, with
a fishing licence, he can also fish in other areas in the region which are
open for fishing when the area surrounding the reserves is closed. The
author has argued that there is not enough fish on and adjacent to the
reserves to render the right meaningful and that the other areas indicated
by the State party do not belong to his Nation's traditional fishing
grounds. He has moreover argued that fishing with a licence constitutes a
privilege, whereas he claims to fish as of right.
12.7 Referring to its earlier jurisprudence, the Committee considers that
States parties to the Covenant may regulate activities that constitute an
essential element in the culture of a minority, provided that the regulation
does not amount to a de facto denial of this right. [FN16] The Committee
must therefore reject the author's argument that the requirement of
obtaining a fishing licence would in itself violate his rights under article
27.
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[FN16] See inter alia Kitok v. Sweden, communication No. 197/1985, Views
adopted on 27 July 1988, CCPR/C/33/D/197/1985 and Länsmann v. Finland,
communication No. 511/1992, Views adopted on 26 October 1994, CCPR/C/52/D/511/1992
and communication No. 671/1995, Views adopted on 30 October 1996, CCPR/C/58/D/671/1995.
-------------------------------------------------------------------------------------------------------------------------------
12.8 The Committee notes that the evidence and arguments presented by the
State party show that the author has the possibility to fish, either
pursuant to a treaty right on and adjacent to the reserves or based on a
licence outside the reserves. The question whether or not this right is
sufficient to allow the author to enjoy this element of his culture in
community with the other members of his group, depends on a number of
factual considerations.
12.9 The Committee notes that, with regard to the potential catch of fish on
and adjacent to the reserves, the State party and the author have given
different views. The State party has provided detailed statistics purporting
to show that the fish in the waters on and adjacent to the reserves are
sufficiently abundant so as to make the author's right to fish meaningful
and the author has denied this. Similarly, the parties disagree on the
extent of the traditional fishing grounds of the Hiawatha First Nation.
12.10 The Committee notes in this respect that these questions of fact have
not been brought before the domestic courts of the State party. It recalls
that the evaluation of facts and evidence is primarily a matter for the
domestic courts of a State party, and in the absence of such evaluation in
the present case the Committee's task is greatly impeded.
12.11 The Committee considers that it is not in a position to draw
independent conclusions on the factual circumstances in which the author can
exercise his right to fish and their consequences for his enjoyment of the
right to his own culture. While the Committee understands the author's
concerns, especially bearing in mind the relatively small size of the
reserves in question and the limitations imposed on fishing outside the
reserves, and without prejudice to any legal proceedings or negotiations
between the Williams Treaties First Nations and the Government, the
Committee is of the opinion that the information before it is not sufficient
to justify the finding of a violation of article 27 of the Covenant.
13. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of the International Covenant on Civil and Political Rights.
_____________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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