case name: r. v. morris - turtle talk · pdf file11/11/2010 · case name: r. v....

Case Name:

R. v. Morris

BetweenRegina, and

Sandy Morris Jr., John Sylvester a.k.a. Wilfred JohnHenry, Bonnie George, Ben Sam, Patrick John Edwards

[2010] B.C.J. No. 2205

2010 BCPC 270

File No. 26380-1

Registry: Duncan

British Columbia Provincial CourtDuncan, British Columbia

B.D. MacKenzie Prov. Ct. J.

Heard: February 7-10, 17, 28, March 17, April 19, November1-4, 7, 8, December 6, 20, 23, 2005; January 6, 19, February

1, 2006; February 14, 19-22, 26-28, March 1, 5, Apr 2, 4,December 3-6, 2007; January 21-24, February 13, 14, March 31,

May 27, September 29, 30, October 1, December 30, 2008;January 6-9, June 25, July 13, October 14, 2009; February 8-

12, 15-19 and March 22-26, 2010.Judgment: November 12, 2010.

(337 paras.)

Counsel:

Counsel for the Crown: F. Thompson & J. Blackman.

Counsel for the accused Morris, Sylvester, George & Sam: R. Morahan.

Counsel for the accused Edwards: S. Sheets.

REASONS FOR JUDGMENT

Background1

Facts 1

Treaty Right 20

Framework 20

Alleged Treaty Right 24

Existence of a Treaty Right 28

Direct Descendant of aTreaty Signatory: MorrisJr. George and Sam

Direct Descendant of aTreaty Signatory: Genealogyof Edwards

Applicability of Treaty Right41

Applicability of Treaty Right:Kinship Reciprocity

Defendants' Position

Crown's Position

Analysis

Evidence of Kinship Ties

Kinship Reciprocityin the Douglas Treaties

Principles of Treaty Interpretation

Kinship Reciprocity as a Treaty Right

Applicability of Treaty Right: A Species Specific Right


Crown's Position

Analysis

Internal Limit to a Treaty Right103

Internal Limit: Conservation


Crown's Position

Legal Principles

Analysis: Is Conservation an Internal Limit?

Analysis: Is the Scope of the Treaty Limited by Conservation?

Traditional Practices:Sustainability

Do the Regulations Infringe the Treaty Right?

Was the Hunt within the Scope of the Treaty Right?

Limitation on the Scope Treaty:Traditional Permissions and Protocols

Prima FacieInfringement of a Treaty Right

203

Legal Principles

Parties' Positions

Analysis

Is the Limitation Unreasonable?

Undue Hardship and Preferred Means

Aboriginal Right225

Framework 225

Alleged Aboriginal Right 226

Existence of an AboriginalRight227

Legal Principles


Crown's Position

Analysis

Kinship Reciprocity as a Right

Cowichan Right to Hunt at Cowichan Lake

A Species Specific Right

Internal Limit on an AboriginalRight279

Prima Facie Infringement of anAboriginal Right285

Justification289

Legal Principles

Analysis: Valid LegislativeObjective

Analysis: Consistency ofRegulation with Crown FiduciaryDuty

Priority to Aboriginal Rights

As Little Infringement as Possible

Consultation

Is the Infringement Justified?

Sheltering309

The Elements of Sheltering 314

Analysis 323

Sheltering as a Treaty Right

Sheltering as an AboriginalRight

Summary of Findings332

B.D. MacKENZIE PROV. CT. J.:--

Background

1 In the winter of 2001/2002, five Aboriginal persons hunted elk at or near Cowichan Lake inBritish Columbia. Three of the Aboriginal defendants were from urban locations in the greaterVictoria area. Mr. Morris Jr. is a member of the Tsartlip Band. He is recognized as an importanthunter by his people. His common-law spouse, Bonnie George, is a member of the Songhees Bandas is Mr. Sam. The remaining Aboriginal defendant, Mr. Edwards, is a member of the CowichanBand. The fifth defendant, Mr. Sylvester, another well-known hunter from the Cowichan Band,passed away during the course of this lengthy trial.

2 The present day Cowichan Band has traditionally resided in several separate villages near themouth of the Cowichan River and near Quamichan Lake and Somenos, a short distance up the river.The hunts took place in a relatively remote area although a major two-lane paved highway runsnorth of Cowichan Lake, through the Town of Lake Cowichan and then along the southern shore.After about 20 kilometres, this road joins the main north - south route on Vancouver Island.

3 There has been a prohibition on hunting elk at Cowichan Lake since 1968. At that time, there

were very few elk and the population was considered extremely fragile. Since then, the elk haverecovered somewhat, especially one herd centered around Shaw Creek. This replenishing hasoccurred notwithstanding sporadic unsanctioned hunts over the years during which large numbersof elk were shot.

4 The provincial government has designated Roosevelt elk as "S-3": the animal is vulnerable toextirpation or extinction due to its restricted range with some local declines, habitat degradation,predation and poaching. In particular, the Fish and Wildlife Branch has concluded that the local elkpopulation in the Cowichan Lake area is susceptible to a significant reduction in numbers leading toan unsustainable level, including potential extinguishment, without prohibitions and/or sanctions.

5 In recent years, members of the defendants' bands have disputed the necessity for concernsabout the viability of Roosevelt elk at Cowichan Lake. They say there are ample elk to allowunregulated hunting by Aboriginal persons. As a result, there has been no agreement between thegovernment and "interested" Aboriginal parties as to what an appropriate allocation of elk would beif the area was opened to Aboriginal hunting or if there was a limited hunt.

Facts

6 At the outset, it is helpful to briefly describe how the accused found themselves hunting elk atCowichan Lake on the dates in question.

7 Ms. Ester Edgar, the Crown's first witness and Morris Jr.'s aunt, testified on February 7, 2005.She is a member of the Ditidaht (or Nitinat) First Nation. She knew all of the accused and was withthem on two hunts. Notwithstanding some inconsistencies, I have accepted her evidence, especiallyas crucial parts of it were confirmed or corroborated by other uncontradicted evidence.

8 In January 2002, Ms. Edgar was staying at the longhouse on the Songhees First Nation's land inVictoria "babysitting" a dancer. Morris Jr. approached her and asked her "what it would take forhim to get an elk for the longhouse". She testified in cross-examination that Morris Jr. asked her,"What it would take for me - for us - for me to get permission to get an elk?"

9 She called her brother, George Jack Thompson, who at the time was Chief of the Ditidaht FirstNation, which traditionally has had a presence at Cowichan Lake near their main territory on thewest coast. She asked if she could get an elk because "Rose and Amy are in the Big House and weneed some meat for the table." She testified that the Chief told her "go ahead, but just get one."

10 After this telephone conversation, Morris Jr. asked her, "Can we go?" She testified that sheheld up one finger and said, "Yeah, we can go and get one."

11 They drove to the lake at around 11:00 p.m. In describing the hunt in which two elk and a deerwere shot, she said "a big light" was used. After the two elk were shot, she said to Morris Jr.,"Whoa, you sure don't know how to count do you."

12 Approximately a week later, the group went hunting again. Once in the truck, she askedMorris Jr. where they were going. She testified he said, "We're going back to your territory." Theylocated a large herd of elk near the lake shore. The "big light" was used and two elk were shot.

13 Other hunts took place during the same time frame although not all defendants were presenteach time.

14 Morris Jr. confirmed that the hunts took place at night. He told conservation officer Stephenthat they used a high-powered light, a rifle he got from an uncle "along with night-vision goggles".Morris Jr. said to Officer Stephen that they "got a few elk," and that they were taken "in Nitinattraditional territory." The defendants advised the conservation officers that the meat was to be usedfor food at the Big House during various ceremonies and functions. On one occasion, a significantamount of elk meat was left behind in the bush. Morris Jr. advised one of the conservation officersthat the reason meat was left was because "the truck could not handle anymore". Mr. Edwards toldconservation officer Horncastle that it was raining and Morris Jr. and Sylvester "were tired and Isaid 'why shoot it if you're not going to take it.'"

15 The information sworn in November 2003 contained 47 counts. On February 1, 2006, at theconclusion of the trial on its merits, I found the evidence led by the Crown, which includedstatements from the defendants, established beyond a reasonable doubt that these defendants wereresponsible for killing eight elk between January and February 2002 as charged in 12 of the counts:R. v. Morris (1 February 2006), Duncan 26380-1 (B.C. Prov. Ct.). The counts the Crown provedbeyond a reasonable doubt were for the hunting and killing of Roosevelt elk "at a time not within anopen season" and the discharging of firearms in a no shooting area contrary to the Wildlife Act,R.S.B.C. 1996, c. 488. The Crown stayed several charges after the Supreme Court of Canada, in R.v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915 [Morris], accepted that night hunting withhigh-powered illumination was a traditional Aboriginal method of hunting. The remaining countswere dismissed when I found the Crown had not proven these charges beyond a reasonable doubt.

16 Three of the elk were shot by the deceased Mr. Sylvester. Four of the eight elk were cows, twoof which were pregnant, and one was a calf. According to conservation officers who observedremains in various areas at or near the lake, approximately 21 elk were killed on the north shore ofCowichan Lake in the winter of 2001/2002. A small number of elk were also killed on the southshore during that winter. It is estimated that approximately 14 of these elk were female. This ofcourse caused grave concerns about the sustainability of the elk populations in that area.

17 At the conclusion of the first stage of the trial, the defendants advised that they would beadvancing an Aboriginal defence to those charges that the Crown had proven beyond a reasonabledoubt based on s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.),1982, c. 11, which guarantees Aboriginal and treaty rights. They say that they have a treaty rightand, in the alternative, an Aboriginal right to hunt at Cowichan Lake for food, social and ceremonialpurposes. The Crown argues the defendants have failed to prove on a balance of probabilities either

a treaty right pursuant to the Douglas Treaties or an Aboriginal right to hunt elk at Cowichan Lakebecause the area was not part of their traditional hunting territory prior to contact with Europeans orwhen the Douglas Treaty was signed.

18 The defence called several Aboriginal deponents and two experts. None of the defendantstestified. The Crown called two experts and numerous conservation officers and wildlifemanagement witnesses. The only expert that testified as to conservation concerns was a Crownwitness.

19 With this very brief background, I will first deal with the treaty right claim and then theAboriginal right defence. Irrespective of whether the defence prevails on the treaty argument, it isappropriate that I deal with all of the arguments advanced by both the defendants and Crownalthough many of the same issues will arise with respect to Aboriginal rights.

Treaty Right

Framework

20 In order to determine whether the impugned provisions of the Wildlife Act, impair a treatyright, a two-step process is required. The first step involves establishing the existence of a treatyright and characterizing its scope. It is well settled that the onus lies on the defendants to prove boththe existence and scope of a treaty right. Morris Jr., George and Sam claim a treaty right to hunt.More specifically, they say this right allows them to hunt elk at Cowichan Lake pursuant to thepractice of bilateral kinship reciprocity amongst Coast Salish bands.

21 Edwards' claim is slightly different given his different status as a member of the CowichanBand. However, he also claims a treaty right as a direct descendant of the signatories to theNanaimo Treaty.

22 If the defendants are able to prove a treaty right on the balance of probabilities, the analysiswill turn to the second step, whether there are any internal limits on that right, similar to thedangerous hunting internal limit acknowledged by the Supreme Court of Canada in Morris. TheCrown has the burden of proving that an internal limit has been triggered. If there is an internallimit, then the Wildlife Act would not be affected and there would be no need to consider whetherthe legislation prima facie infringes a treaty right. Conversely, if there is no internal limit, I mustconsider whether there has been a meaningful diminution of a treaty right or whether the provinciallegislation only interferes insignificantly with the treaty right such that the legislation can beincorporated by s. 88 of the Indian Act, R.S.C. 1985, c. I-5, or applied ex proprio vigore: Morris; R.v. Côté, [1996] 3 S.C.R. 139, [1996] 4 C.N.L.R. 26 [Côté cited to S.C.R.]; R. v. Nikal, [1996] 1S.C.R. 1013, [1996] 3 C.N.L.R. 178 [Nikal cited to S.C.R.].

23 If the Wildlife Act constitutes a prima facie infringement of a treaty right, the s. 88 treatyexception is triggered and, being provincial legislation, it is constitutionally inapplicable to the

Aboriginal defendants. Based on the decision of the Supreme Court of Canada in Morris, if thedefendants do indeed establish a prima facie infringement of a treaty right, the Crown would not beable to rely on justification for that infringement.

Alleged Treaty Right

24 I now turn to whether the defendants have established a treaty right to hunt where theseparticular hunts took place.

25 The foundation for the treaty right claimed by the defendants is the Douglas Treaty, signed bySir James Douglas and several Aboriginal signatories at Victoria in 1850. The relevant part reads:

... it is understood however that the land itself, with these small exceptions,becomes the entire property of the white people forever; it is also understood thatwe are at liberty to hunt over the unoccupied lands, and to carry on our fisheriesas formerly.

26 In respect of kinship reciprocity, both the defence expert, Ms. Vanden Berg, and the Crownexpert, Mr. Dewhirst, acknowledged that Dr. Wayne Suttles was the preeminent anthropologiststudying Coast Salish culture. Dr. Suttles, in a report created for the trial of R. v. Seward (1996),[1997] 1 C.N.L.R. 139 (B.C. Prov. Ct.), entitled "Penelekuts Polity, Hunting, and Territory",outlined the advantages of kinship reciprocity or "inter-village marriage". The Penelakut is anotherCoast Salish band. At page 4 of his report, Dr. Suttles wrote:

... the children of the marriage inherited potential membership in both parents'villages and, while living in one village, the right to visit and participate in theharvesting of resources in the other. ... Marriage ties thus provided the basis for... the exchange of access of resources between villages ...

[Emphasis added.]

27 Based on Dr. Suttles' work and other historical literature, Mr. Dewhirst concludes kinshipreciprocity does not give an automatic or unfettered right to another village's resources; it only givespotential access. Moreover, it is his opinion that kinship reciprocity requires a party to comply withcertain protocols before accessing resources on another First Nation's territory. Ms. Vanden Berg'sopinion differs.

Existence of a Treaty Right

Direct Descendant of a Treaty Signatory: Morris Jr., George and Sam

28 The Crown concedes that Morris Jr., George and Sam are beneficiaries of the DouglasTreaties insofar as they are members of a First Nations group which is descended from an original

signatory.

Direct Descendant of a Treaty Signatory: Genealogy of Edwards

29 Edwards argues, much like the other defendants, that he has a treaty right to hunt at CowichanLake based on his being a direct descendent of the signatories to the Nanaimo Treaty and kinshipreciprocity. The Nanaimo treaty is part of the Douglas Treaties and contains the same wording asnoted above.

30 While the Crown concedes that Edwards is a member of the Cowichan Tribes, it makes noconcession that he is a descendant of the Nanaimo Treaty signatories or that the Cowichan Tribesare beneficiaries of the Nanaimo Treaty.

31 The onus is on Edwards to prove on a balance of probabilities that he is a direct descendant ofthe signatories and, thus, has treaty rights. Edwards relied on the evidence of Ms. Vanden Berg.

32 The Crown contests the accuracy and reliability of Ms. Vanden Berg's findings. It called as anexpert Mr. Dewhirst, a cultural anthropologist who has extensive experience with respect toAboriginal issues and has done research for the provincial government as well as First Nations. Mr.Dewhirst criticized Ms. Vanden Berg's methodology and source material, in particular her relianceon sources that she had never seen.

33 In her evidence, Ms. Vanden Berg referred to the death record of Edwards' maternalgrandfather, Charles John Seward, which was introduced as an exhibit. Ms. Vanden Berg testifiedthat Charles John Seward's father was Robert Seward and that the Court should assume that RobertSeward descended from Squoniston, an original signatory. In support of this position, Ms. VandenBerg stated that "the Seward family is a large important family on the Nanaimo reserve...[a]nd thatit is highly unlikely that they are not connected to the Nanaimo treaty." When asked how this finalconnection in the genealogy chart could be established, Ms. Vanden Berg stated she "would leavethe connection to Ms. Lorraine Littlefield". However, Ms. Vanden Berg had no idea what sourcematerial Ms. Littlefield used to make her findings to conclude that Edwards was a direct descendentof a Nanaimo Treaty signatory.

34 Furthermore, Ms. Vanden Berg admitted that in preparing Edwards' genealogy charts, she didnot source any information that would allow her to determine the accuracy and the reliability of hisgenealogical material. Instead, she primarily relied on information received during a phoneconversation with Ms. Littlefield, testifying that Ms. Littlefield "rhymed [the information] right offthe top of her head."

35 Ms. Vanden Berg also testified that she relied on information from the Hul'qumi'num TreatyGroup and simply considered whatever source it used to be reliable. Again, as with Ms. Littlefield,she did not see or discuss any of the source material the group relied upon in forming its opinion.

36 Neither Ms. Littlefield nor a member of the Hul'qumi'num Treaty Group testified. Neitherdisclosed any of the information they relied upon when expressing their opinions to Ms. VandenBerg. And, as Mr. Dewhirst noted, "we have no idea what Ms. Littlefield told Ms. Vanden Berg."

37 Ms. Vanden Berg testified that she was "90% sure" that Edwards is a direct descendent of aNanaimo Treaty signatory. However, I am of the opinion that little weight can be given to thatconclusion because she did not check any of the source material relied upon by the third partieswhose information led her to reach this general conclusion. As Mr. Dewhirst noted, there is no"final link" connecting Edwards to the original Nanaimo signatory.

38 The defence relies on R. v. Simon, [1985] 2 S.C.R. 387, [1986] 1 C.N.L.R. 153 [Simon], tosupport its position that there is sufficient evidence to prove on a balance of probabilities thatEdwards is a direct descendent. In Simon, the defendant testified that he was a registered member ofthe Shubenacadie - Indian Brook Band of Micmac Indians and he lived in the same area, asdescribed in the treaty, as the original Micmac Tribe, which was a party to the treaty.

39 In the present case, Edwards did not testify. There is no evidence that he is a registeredmember of the Nanaimo Indian Band or that he lives or lived where the original band resided whenthe treaty was signed. As a result, Simon is distinguishable.

40 Therefore, I find Edwards has not proven on a balance of probabilities that he is a directdescendant from a treaty signatory or a beneficiary of a treaty right. Even if Edwards hadestablished this, the same arguments advanced for and against the other defendants' alleged treatyrights would be applicable to Edwards' claim. It is to these arguments I now turn.

Applicability of Treaty Right

41 The defence advances two arguments in support of its claim that the Douglas Treaties providethe defendants a right to hunt at Cowichan Lake. In its first argument, the defence claims a right tohunt based on kinship ties with the Cowichan. The defence claims that the Cowichan have a right tohunt at Cowichan Lake and that the Douglas Treaties allow the defendants access to the Cowichan'shunting rights through the concept of kinship reciprocity. The defence's second argument alleges aspecies specific treaty right to hunt elk. I will deal with these arguments in turn.

Applicability of Treaty Right: Kinship Reciprocity


42 The defendants argue that as direct descendants of the signatories to the 1850 and 1852Douglas Treaties, they are entitled to hunt over "unoccupied lands". The defendants claimintermarriage between individual members of the Songhees or Tsartlip and the Cowichan, anon-signatory First Nation, gives them access to the Cowichan's resources and thereby the right tohunt outside of the Songhees and Tsartlip traditional territory. The defendants say they have

established on a balance of probabilities a historical kinship relationship with the Cowichan and thatCowichan ancestors "shared" the Cowichan Lake area with the Ditidaht, a non-Coast Salish Nation,at the signing of the Douglas Treaties.

43 The defendants claim kinship reciprocity is provided for by the treaty since this was a crucialelement of Coast Salish society at the time of signing. Thus, they suggest it is appropriate toconclude the signatories' intention was to incorporate this feature of the culture into the DouglasTreaty. They also say that historically they were entitled to hunt at Cowichan Lake pursuant tokinship reciprocity and that therefore the signatories' intention was to include the potential to huntthere, even though they did not actually hunt at Cowichan Lake at the time of signing. Additionally,even if they were not entitled to hunt at Cowichan Lake at the time of signing, they say the potentialto have the opportunity to hunt there based on future kinship relations is a part of the modernevolution of their treaty right.

44 Relying on the full phrase in the treaty, "to hunt over the unoccupied lands, and to carry onour fisheries as formerly", and the Supreme Court of Canada's finding in Morris at para. 25 that thetreaty right included the "full panoply of hunting practices", the defendants argue that, in theabsence of evidence to the contrary, access to a hunting area obtained through kinship reciprocity iscovered by the treaty. In addition to the wording of the treaty, they also rely on Governor Douglas'report of May 16, 1850, in which he wrote:

I informed the natives ... that they were at liberty to hunt over the unoccupiedlands, and to carry on their fisheries with the same freedom as when they werethe sole occupants of the country.

45 The defendants further posit that because of kinship reciprocity, Cowichan territory should beconsidered part of the Songhees and Tsartlip "extended" traditional territories. They argue thatsimply having a family connection in any Coast Salish territory is sufficient to allow a court toconclude those lands are part of their traditional territory irrespective of whether the band hadaccessed them previously. The defendants say that to interpret the phrase "unoccupied lands"otherwise would be to place a "rigid formulation" or "restrictive interpretation" on the treaty rightand the definition of traditional territory.The defence primarily relies on R. v. Bartleman, 12 D.L.R.(4th) 73, [1984] 3 C.N.L.R. 114 (B.C.C.A.) [Bartleman cited to D.L.R.], which decided that theterritory over which a beneficiary can hunt is in excess of the specific territories described in theparticular treaty. The defence submits that Bartleman stands for the proposition that, pursuant tokinship reciprocity, Coast Salish people were able to extend their territory from the actual cededterritory to other areas, such as other unoccupied lands on Vancouver Island. It also suggests thathunting territories were defined by the kinship family territories and that kinship reciprocity is asuitable method to determine whether a particular area is traditional territory even when there is noevidence of any historical presence at that location.

46 At 84 and 85 of Bartleman, Justice Lambert found:

In 1852, the economy of the Saanich people was based on hunting and fishing attraditional locations throughout a large geographic area, so as to have access toresources when and where they were in the best supply. It was traditional amongthe Saanich people to cooperate across tribal and language divisions, sharingaccess to resources in one another's local territories. Rights to hunt and fish atvarious locations flowed from family relationships, previous residency, andreciprocal inter-tribal or inter-family arrangements.

In 1852, the Saanich people hunted over the Saanich Peninsula, southernVancouver Island as far north as Comox, the San Juan and Gulf Islands, andportions of the Lower Mainland. They went where the food was and where itcould be caught. If the animals or fish moved on, so did the hunting.

47 As mentioned, the defendants concede that their ancestors did not hunt at Cowichan Lake. Infact, in their written argument, they specifically note they have only led limited evidence thatmembers of their bands hunted deer in this general area in the 20th century. They say this recentdevelopment was necessitated by the urbanization of the Songhees and Tsartlip territory in Victoriaand outlying areas. Moreover, the defendants note that treaty rights are not "frozen in time" andclaim the modern evolution of the treaty right to hunt allows them to hunt in another band'straditional territory when forced to by the urbanization of their territory.

48 Additionally, the defendants argue that this kinship relationship provides them with anautomatic right to hunt within Cowichan traditional territory without any restrictions or protocolrequirements. Essentially, they assert that through kinship they are able to enter another FirstNation's territory at will and exercise unfettered access to the resources of that other First Nationeven though that nation had no involvement with treaty negotiations or the signing of the DouglasTreaties.

Crown's Position

49 The Crown argues that although it concedes Morris Jr., George and Sam are beneficiaries ofthe Douglas Treaty, they have no treaty right to hunt elk at Cowichan Lake. As beneficiaries theycan only hunt in the ceded lands or the traditional territories of the original signatories. The Crownsays the defendants have not established that Cowichan Lake was part of the traditional huntingterritory of the Songhees, Tsartlip or Nanaimo Bands or that those bands had any presence therewhen the treaty was signed. It suggests that because the defendants rely on the principle of bilateralkinship reciprocity, the Court can reasonably infer that the defendants acknowledge Cowichan Lakeis not within the traditional hunting territory of the Songhees, Tsartlip and Nanaimo.

50 In respect of Bartleman, the Crown submits that the decision only establishes that if theevidence proves that at the time of signing a specific area was within the traditional hunting area ofthe signatory, perhaps because of inter-tribal or inter-family relationships, and that area has

continued to be used as a traditional hunting area of that First Nation, it is properly considered partof the traditional territory. If the right is not tied to specific land but is based on familial ties at anygiven time, the right would become "free-floating" and "abstract" and, in essence, exercisableanywhere.

51 Additionally, the Crown says that the treaty does not grant rights based on kinship reciprocity:the language of the treaty is clear, there is no ambiguity in the treaty right to hunt and there is nomention of kinship reciprocity. The Crown claims the signatories to the Douglas Treaty did notcontemplate or intend to incorporate kinship reciprocity as a treaty right. In particular, the Crownsubmits there is no evidence the signatories intended to grant a right that would allow one FirstNation unfettered access to an area far outside of its traditional territory and in the territory ofanother Coast Salish First Nation, especially when the latter, such as the Cowichan, was not a partyto the treaty or a similar treaty. The Crown submits it is illogical and inappropriate to conclude assuch because the signatories could not have intended to affect the rights of a distant non-participant.

52 The Crown further suggests that such an interpretation would be problematic since it wouldgive the defendants greater rights than the Cowichan Tribes who, at best, only have an allegedAboriginal right to hunt at Cowichan Lake, a right which can be limited by the Crown throughregulation pursuant to the principles enunciated in R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3C.N.L.R. 160 [Sparrow cited to S.C.R.].

53 Also, while the treaty does protect hunting practices, the Crown says kinship reciprocity doesnot fall within this categorization.

54 Moreover, the Crown argues that treaty rights cannot be based on kinship reciprocity becausea treaty right must be collective or communal. While treaty rights may be exercised by an individualmember of the community, it is the community as a whole which holds the right, not an individual.

55 Finally, in response to the evidence led by the defendants specifically pertaining to elkhunting, the Crown notes that the Douglas Treaties provide a right to hunt over unoccupied lands.This is a right to hunt generally, not to hunt a specific species.

Analysis

56 The defence's argument of a treaty right to hunt at Cowichan Lake pursuant to kinshipreciprocity requires the defendants to establish that the geographic scope of the Douglas Treatiesincludes territory accessible through kinship reciprocity. If the concept of kinship reciprocity isrecognized by the Douglas Treaties, it is also necessary to establish the precise nature of the rightsaccorded: whether treaty rights based on kinship reciprocity cover only territory that was accessibleto the defendants' ancestors at the time of signing or whether they may evolve to incorporate newkinship ties. The defendants must then establish that kinship reciprocity applies in the presentcircumstances, based on the requisite practice of kinship reciprocity between the Tsartlip andSonghees and the Cowichan. Finally, the defendants must also establish the Cowichan's underlying

right to hunt at Cowichan Lake.

57 As the defence's argument here depends entirely on the existence of kinship ties between thedefendants and the Cowichan, it is necessary as a preliminary step to determine whether such tieshave been established.

Evidence of Kinship Ties

58 The defence led genealogy evidence in order to establish the asserted kinship relationship withmembers of the Cowichan Tribes. The defence expert Ms. Vanden Berg, testified on this issue. Mr.Dewhirst, the Crown's expert, acknowledged that genealogy can show potential reciprocity betweenFirst Nations people. Therefore, determining the reliability of Ms. Vanden Berg's genealogyevidence is relevant.

59 Ms. Vanden Berg testified that in preparing her genealogy charts and reaching herconclusions, she relied on oral histories provided by several Songhees and Cowichan elders as wellas substantial documentation.

60 Mr. Dewhirst confirmed that interviews with Aboriginal descendants, vital statistics reports,funeral and marriage certificates, census material, unpublished material, archives, privatemanuscripts and diaries are all important sources of information in determining Aboriginalgenealogy. He acknowledged that much of Aboriginal research is, in fact, "reconstruction" and issubstantially based on interviews with children, grandchildren and great-grandchildren. He furtheracknowledged that this information can be very reliable if it was received directly from parents orchildren rather than heard second hand.

61 Nevertheless, the Crown contested the accuracy and reliability of Ms. Vanden Berg's findings.Mr. Dewhirst criticized the format of her charts because, in his opinion, all of the relevant sourcesshould have been clearly outlined on the genealogical reports so that someone reviewing the chartscould check and verify the source material. He also testified that while Ms. Vanden Berg's chartshad "little notations", they contained no "narrative" to "hel[p] the reader understand the chart" byexplaining how people were identified and how the sources were analyzed and used to support aparticular kinship history. He testified it was unclear how particular sources confirmed material inthe report. He was also concerned that the reader was left to check the sources independently of thecharts for verification.

62 However, Mr. Dewhirst admitted that reciprocal relationships were widespread within CoastSalish culture. Also, throughout his testimony, he said it was "very probable" or "very likely" thatall of the conclusions reached by Ms. Vanden Berg pertaining to Morris Jr., George and Sam wereaccurate and that the charts themselves were "quite reliable." His primary complaint was that ifspecific information relating to the details of the relevant sources had been noted, he could haveconfirmed their accuracy without having to go to the particular source. Mr. Dewhirst furthertestified that he did not look for any evidence to contradict the charts.

63 It must be remembered that the onus is on the defendants to prove that they have a kinshiprelationship with a member of the Cowichan Tribes. The fact that the Crown did not present anyevidence to contradict Ms. Vanden Berg's conclusions does not mean, in and of itself, that thedefendants have established the necessary relationship on a balance of probabilities. Moreover, Mr.Dewhirst's criticisms of Ms. Vanden Berg's work are legitimate. Nonetheless, I am not satisfied thathis concerns undermine the validity of Ms. Vanden Berg's report. Therefore, having regard to thetotality of the evidence, I am satisfied that Morris Jr., George and Sam have proven on a balance ofprobabilities that they have kinship ties with members of the Cowichan Tribes which began at somepoint after the signing of the treaty. Sam's father, Raphael Johnnie Jr., was a member of theKhenipsen, which is one of the seven traditional villages of the Cowichan Tribes. Morris Jr.'sgrandmother, Esther Tom, was a member of the Cowichan, and George's grandmother, Sophina Ely,was a member of the Quamichan, another one of the seven villages that make up the present-dayCowichan Tribes.

64 There is however no evidence that any of the signatories to the treaties or other members ofthe bands had a kinship relationship with the Cowichan at the time of signing.

Kinship Reciprocity in the Douglas Treaties

65 Having determined the existence and extent of the kinship relationship, I turn now to considerwhether kinship reciprocity is recognized in the Douglas Treaties. In doing so, it is necessary to setout the relevant principles of treaty interpretation, paying particular attention to the manner in whichthe Douglas Treaties have been considered by the courts.

Principles of Treaty Interpretation

66 In R. v. Marshall, [1999] 3 S.C.R. 456, [1999] 4 C.N.L.R. 161 [Marshall #1 cited to S.C.R.],Justice McLachlin (as she then was), in her dissent, confirmed at para. 78 the now well-settledprinciples governing treaty interpretation. Aboriginal treaties are unique. The goal is to choose theinterpretation of common intention that best reconciles the parties' interests at the time of signing,presuming the integrity and honour of the Crown. A treaty should be construed liberally with anyambiguities resolved in favour of the Aboriginal signatories but the words of the treaty must begiven the sense that they would naturally have held for the parties at the time of signing. Also,courts "cannot alter the terms of the treaty by exceeding what 'is possible on the language' orrealistic". Similarly, Justice Binnie writing for the majority noted at para. 14 that "'[g]enerous' rulesof interpretation should not be confused with a vague sense of after-the-fact largesse."

67 Finally, Aboriginal treaty rights must not be interpreted in a static or rigid way. They are notfrozen at the date of signing. Treaty rights must be interpreted to allow for their modern exercise.This requires determining what modern practices are reasonably incidental to a core treaty right inits modern context.

68 At paras. 82-83, Justice McLachlin described a useful two-step approach to treaty

interpretation:

82 ... First, the words of the treaty clause at issue should be examined todetermine their facial meaning, in so far as this can be ascertained, noting anypatent ambiguities and misunderstandings that may have arisen from linguisticand cultural differences. This exercise will lead to one or more possibleinterpretations of the clause. As noted in Badger, supra, at para. 76, "the scope oftreaty rights will be determined by their wording". The objective at this stage isto develop a preliminary, but not necessarily determinative, framework for thehistorical context inquiry, taking into account the need to avoid an undulyrestrictive interpretation and the need to give effect to the principles ofinterpretation.

83 At the second step, the meaning or different meanings which have arisen fromthe wording of the treaty right must be considered against the treaty's historicaland cultural backdrop. A consideration of the historical background may suggestlatent ambiguities or alternative interpretations not detected at first reading.Faced with a possible range of interpretations, courts must rely on the historicalcontext to determine which comes closest to reflecting the parties' commonintention. ...

69 The Supreme Court of Canada reviewed the Douglas Treaties in Morris. At paras. 19, 25 and33 the majority stated:

19 The Douglas Treaties were the reflections of oral agreements reduced towriting by agents of the Crown. The historical background to these treaties hasbeen ably documented by the B.C. Court of Appeal in three decisions: see R. v.White (1964), 50 D.L.R. (2d) 613; R. v. Bartleman (1984), 55 B.C.L.R. 78; andSaanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R. (2d) 79. This historicalcontext reveals an overriding intention that the methods by which the Saanichtraditionally hunted be brought within the Treaty's protection.

...

25 The promises made by Douglas confirm that the parties intended the Treaty toinclude the full panoply of hunting practices in which the Tsartlip people hadengaged before they agreed to relinquish control over their lands on VancouverIsland.

...

33 ... This conclusion is dictated by the common intentions of the parties to theTreaty, as distilled from the context in which the Treaty was entered into. Thepurpose of the hunting clause was to preserve the traditional Tsartlip way of life,including methods of gathering food. ...

In Morris, the protected practice was night hunting with illumination.

70 The defence relies to a great extent on the case of R. v. Bartleman, a 1984 decision of the B.C.Court of Appeal. I agree with the defence when it submits that "it is already decided that theterritory over which a rights holder of the Douglas Treaty can hunt is in excess of the specificterritories described in the particular Treaty."

71 Indeed, in Bartleman at 89 the court found the Douglas Treaty with the North Saanich Bandprotected hunting on unoccupied lands that were ceded as well as on other lands that were part ofthe Saanich's traditional hunting area. However, at 92, in noting the restrictions imposed by thetreaty on hunting rights, the court found:

In my opinion, the restrictions placed by the Treaty on the hunting rights of theIndians entitled to exercise the Treaty rights are, first, that the hunting must takeplace within the geographical area of the traditional hunting grounds of theSaanich people ... [Emphasis added.]

72 In R. v. White and Bob (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193 (B.C.C.A.) [White andBob cited to D.L.R.], Justice Davey determined at 618 that Aboriginals' "peculiar rights of huntingand fishing over their ancient hunting grounds arising under agreements by which they collectivelysold their ancient lands are Indian affairs" (emphasis added). This decision confirms that huntingpursuant to a treaty right must be exercised on lands traditionally used for that purpose by thedefendant's ancestors.

73 Cases concerning other treaties have also interpreted treaty rights as being site specific andpertaining to traditional hunting grounds. In R. v. Sundown, [1999] 1 S.C.R. 393, [1999] 2 C.N.L.R.289 [cited to S.C.R.], Justice Cory noted at para. 25 that "consideration should be given to theevidence as to where the hunting and fishing were done and how the members of the First Nationcarried out these activities."

74 In R. v. Marshall, [1999] 3 S.C.R. 533, [1999] 4 C.N.L.R. 301 [Marshall #2 cited to S.C.R.],at para. 17 the Court wrote:

17 ... The onus will then switch to the accused to demonstrate that he or she is amember of an aboriginal community in Canada with which one of the local

treaties described in the September 17, 1999 majority judgment was made, andwas engaged in the exercise of the community's collective right to hunt or fish inthat community's traditional hunting and fishing grounds. The Court's majorityjudgment noted in para. 5 that no treaty was made by the British with theMi'kmaq population as a whole:

. . . the British signed a series of agreements with individual Mi'kmaqcommunities in 1760 and 1761 intending to have them consolidated into acomprehensive Mi'kmaq treaty that was never in fact brought intoexistence. The trial judge, Embree Prov. Ct. J. found that by the end of1761 all of the Mi'kmaq villages in Nova Scotia had entered into separatebut similar treaties. [Emphasis added.]

The British Governor in Halifax thus proceeded on the basis that local chiefs hadno authority to promise peace and friendship on behalf of other local chiefs inother communities, or to secure treaty benefits on their behalf. The treaties werelocal and the reciprocal benefits were local. In the absence of a fresh agreementwith the Crown, the exercise of the treaty rights will be limited to the areatraditionally used by the local community with which the "separate but similar"treaty was made. ...

75 It is also well settled that treaty rights are collective or communal rights. In Marshall #2 atpara. 17, the Court found, "[m]oreover, the treaty rights do not belong to the individual, but areexercised by authority of the local community to which the accused belongs". In R. v. Shipman,2007 ONCA 338, 85 O.R. (3d) 585 [Shipman], a case concerning sheltering which will be discussedmuch later, the Ontario Court of Appeal recently confirmed that a treaty right is a communal right.Relying on Marshall #2, the court in Shipman stated at para. 43 that "treaty harvesting rights arecommunal in nature."

76 The Supreme Court of Canada, in relation to Aboriginal rights, explained what it meant by"communal" in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 [Powley], at para. 24:

24 ... [Aboriginal rights] must be grounded in the existence of a historic andpresent community, and they may only be exercised by virtue of an individual'sancestrally based membership in the present community. ...

77 In R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 [Sappier], Justice Bastarache stated atpara. 26:

26 The right to harvest wood for domestic uses is a communal one. Section 35recognizes and affirms existing aboriginal and treaty rights in order to assist in

ensuring the continued existence of these particular aboriginal societies. Theexercise of the aboriginal right to harvest wood for domestic uses must be tied tothis purpose. The right to harvest ... is not one to be exercised by any member ofthe Aboriginal community independently of the aboriginal society it is meant topreserve. ...

Kinship Reciprocity as a Treaty Right

78 Given the totality of the evidence, I am unable to agree with the defendants that the signatoriesintended to include kinship reciprocity as a treaty right, even though I accept that it was asignificant part of Coast Salish culture at the time of signing. On a plain reading, the treatyexpresses no right to kinship reciprocity or to access territories lying within the boundaries of thirdparty Aboriginal groups. It simply provides a right "to hunt over the unoccupied lands".

79 Neither the treaties nor the historical documents, even when given a generous and liberalinterpretation, contain any mention of an intention to affect third parties or to provide for huntingrights in areas controlled by other Coast Salish First Nations who were not a party to the treaty.Even Ms. Vander Berg acknowledged that there is no historical material discussing the potential forFirst Nations people to move from territory to territory based on kinship reciprocity. It is simply notplausible that the Aboriginal treaty signatories contemplated that they would be granted rights tohunt in areas they had never accessed in the past which fell outside of their ceded or extendedtraditional territory. As in Bartleman and Marshall #2, the only logical conclusion is that the partiesintended the hunting right to extend solely to areas traditionally used by the signatories. Other caselaw, as discussed above, also supports the finding that hunting pursuant to a treaty right must beexercised on lands traditionally used for that purpose by the defendants' ancestors.

80 I accept the Crown's argument that it is a fundamental anomaly to find that the treatysignatories could impose themselves on Aboriginal groups who lived in a distant area and wereunaware of and unconnected to the treaty right. If that were so, those other Aboriginal groups wouldhave no ability to determine whether an outside treaty signatory could hunt in their traditionalhunting areas. Further, I agree with the Crown that it is contrary to common sense that because of atreaty right based on kinship reciprocity, the defendants would enjoy a greater liberty to hunt overthe alleged traditional territory of the Cowichan than the Cowichan themselves, whose Aboriginalright to hunt can be limited by the provincial Crown. This is because, according to Morris, whenprovincial legislation infringes on an aboriginal right, it is not subject to the justification test. TheCrown signatories could not have intended to drastically preference one group of Aboriginals if, asnoted in Morris at para. 33, the treaty was "designed to benefit the settlers, whose interests at thetime lay in friendship with the Indian majority on Vancouver Island."

81 I also cannot find that kinship reciprocity is a traditional hunting practice or method that isincluded in the treaty. It was only those practices in which First Nations people had engaged

pre-treaty that were protected. While the Tsartlip, Songhees and Nanaimo may have had the"potential" opportunity to hunt at Cowichan Lake, the fact that no evidence was presented to showthat they did means hunting at Cowichan Lake cannot be considered a traditional hunting practice.

82 Further, the Concise Oxford English Dictionary, 11th ed., defines "practice" as "the customaryor expected procedure or way of doing something" and "method" as "a particular procedure foraccomplishing or approaching something". Where a person may hunt is not procedural nor is theconcept of kinship reciprocity a hunting method.

83 Even though kinship reciprocity itself is not a treaty right, I accept that if there is sufficientevidence to establish that the Aboriginal signatories had an historical presence at a particularlocation because of kinship relationships, that area would be considered part of the band'straditional territory and a treaty beneficiary would be able to exercise the treaty right to hunt at thatarea. In this case, there is no evidence that the defendants' ancestors hunted at Cowichan Lake orever went to that particular area, even with the concept of kinship reciprocity being a feature ofCoast Salish culture. In fact, the defendants conceded this point. Moreover, the defence has led verylittle or no evidence of any actual traditional hunting territory of the Tsartlip, Songhees or Nanaimo.

84 I cannot accept the defendants' sweeping proposition that any area which "in principle" couldhave been or could now be accessed through kinship ties should be considered a traditional territoryeven though the families' ancestors or band never went there. Bartleman does not provide for this.Bartleman simply extended the hunting right from ceded lands specifically described in the treaty toall lands which the tribe "had traditionally hunted".

85 True, the court in Bartleman found at 90 in relation to the Douglas Treaty signatories:

... Every tribe hunted over the land of other tribes. Every tribe knew that everyother tribe was making a similar treaty. With respect to the first alternativeinterpretation, there would have been no protection at all for a hunting andfishing economy for any tribe if its right to hunt and fish over the neighbouringland of the other tribes were all being extinguished. ...

However, this is a far cry from establishing a precedent that hunting over unoccupied landsencompasses an area where the signatories did not hunt at all at the time of signing. In Bartleman, atthe time the treaties were signed, the signatories were already hunting on that other tribe's land andthey continued to do so after signing.

86 Here, during oral submissions, defence counsel stated, "In my submission, what you have inthis case is not much different [from Bartleman]. The distinction is that we don't have evidence thatCowichan Lake was actually a place that the Songhees went to." In my opinion, this factualdifference is crucial and defeats the defendants' claim that they have a treaty right to hunt in thisarea. The defence submits that at the time of signing, the signatories of the treaty could have gone toCowichan Lake if they wanted to, assuming there was a kinship relationship between some

members of the Tsartlip or Songhees and the Cowichan. The defence says the fact they never wentthere is irrelevant. The defence says the mere potential for the signatories to possibly gain access toCowichan territory through kinship reciprocity is sufficient to consider Cowichan Lake "extendedtraditional territory" and thus establish a treaty right to hunt there.

87 For the above reasons I cannot agree. Not only do the authorities relied on by the defencerequire an actual presence by ancestors of the modern-day band, as the Aboriginal signatories neverhunted at Cowichan Lake, it is difficult to imagine how the right to hunt there over a century later,either out of necessity or through future kinship ties, was within the contemplation of either party tothe treaty.

88 As a result, I cannot accept the defence submission that because of this alleged "potential"ability to access resources in what it says is Cowichan territory, that Cowichan Lake should bedeemed to be "the family's traditional territory" or its "extended" traditional territory, therebyentitling the defendants to hunt at Cowichan Lake.

89 I do not agree that traditional "hunting territories were defined by the kinship familyterritories" when there is no evidence of any historical presence at a particular location. As theSupreme Court of Canada said in Morris at para. 34, "The common intention which best reconcilesthe interests of the parties is one that brings a right to hunt as they always had within the ambit ofthe Treaty." Unlike the situation in Bartleman, where the Crown conceded the area in question "waswithin the traditional hunting area of the Saanich people in 1852 and has been ... continuously sincethen", there is no evidence Cowichan Lake was ever part of the traditional hunting territory of thesignatories to the Douglas Treaties irrespective of whether kinship reciprocity was practiced at thetime or not.

90 In my opinion, this is not a restrictive interpretation of the treaty right. Rather, it is anacknowledgment that the authorities have established that there must be actual historical use beforean area can be considered a traditional territory, thereby allowing a treaty defence to succeed. Icannot agree with Mr. Morahan when he said in argument that a traditional hunting area is "definedby kin, who then will tell you what their lands are so within that framework of kin, the geographicarea becomes clear." That is, any area that "in principle" could have been accessed through kinshipties should be considered a traditional territory. Nor can I agree with Mr. Morahan when he writesin his written argument that because of kinship reciprocity beneficiaries of treaties "may disperseout into numerous areas to acquire resources...through the vast web of kinship ties". In my opinion,the Crown is correct when it submits that to allow what is traditional territory to constantly bechanging based on new kinship relationships is problematic. I am not satisfied that the signatories tothe treaty could have intended a critical component of the hunting right, the area of use, to be sofluctuating and uncertain.

91 Another key problem with the defendants' submission is that, in my opinion, they did notestablish that the Tsartlip, Songhees or Nanaimo actually practiced kinship reciprocity with the

Cowichan at the time of signing and, thus, even had the potential to access Cowichan territory.There was only a single example of Cowichan members harvesting camas bulbs in the Beacon Hillarea in Victoria. It is unclear whether this was pursuant to kinship reciprocity. Dorothy IreneKennedy, acknowledged as a well-respected and authoritative academic, in her exhaustive thesisThreads to the Past: The Construction and Transformation of Kinship in the Coast Salish SocialNetwork (Ph.D. Thesis, University of Oxford, 2000) at 218-19, wrote about the sharing ofresources:

Many of those individuals seeking permission would be kin of some type towhom permission would not generally be refused. Most ethnographic reports arevague on this point, however, and Native consultants usually state thatpermission to anyone, kin or not, would never be refused.

[Emphasis in original.]

Thus, I do not find it reasonable to assume, as the defence suggests, that the Songhees would havehad reciprocal rights through family connections to potentially harvest resources in territories of theCowichan.

92 I also do not agree with the defendants that the modern evolution of a treaty right to hunt canchange the location where that right may be exercised. There is no question that Cowichan Lake isnow the closest place to easily find elk and that hunting deer in the greater Victoria area is difficultbecause much of it is no longer "unoccupied land". That, however, is not enough. The signatoriesmust have contemplated that traditional methods would evolve as technology changed, but not thattraditional territories, which were being ceded, would expand and evolve beyond the "extended"traditional territory where an historical connection had been proven.

93 Lastly, while the asserted right of kinship reciprocity as a general principle is collective, thepractice and conferred benefits of such a right are different for each individual of the collectivebecause logistically the right is based on a particular individual's inter-marital relationships. Clearly,whoever is not related to a family in a different band would not have access to that other band'sterritory. This is why Dr. Suttles concluded that kinship reciprocity occurred between familymembers and not between bands or First Nations communities. This is also why the defendants'witnesses clearly distinguish between kin or "family" and strangers with respect to who can utilize aresource and whether notice or permission is required. Mr. Charlie, a Cowichan Tribes member,testified that, in his opinion, only grandchildren of a Cowichan member could hunt at CowichanLake because of kinship. Having different rights in different locations specifically restricted todifferent individuals within a community is, at best, a unique individual right and thus cannot be atreaty right protected by s. 35 of the Constitution Act, 1982.

94 For these reasons, I am not satisfied that Morris Jr., George and Sam were exercising a treatyright to hunt elk at Cowichan Lake in the winter of 2001/2002 pursuant to kinship reciprocity. Asthere is no evidence ancestors of the Nanaimo First Nation hunted at Cowichan Lake, even if

Edwards was a beneficiary of the Douglas Treaty as a Nanaimo descendant, his argument that hehad a treaty right to hunt at Cowichan Lake pursuant to kinship reciprocity must be dismissed forthe same reason.

Applicability of Treaty Right: A Species Specific Right


95 The defendants also claimed that they benefited from a treaty right to hunt a particular species,specifically elk. Mr. Morahan, in his written argument writes, "the real right is the right to huntcertain territories and species of animals." In advancing this argument, the defence noted that elkare very large animals and easy to kill, especially at night. Elk provide much more meat than deerand it is easier to hunt elk in an open field or by the lakeshore than to pursue deer through difficultterrain. The defendants did not, however, attempt to explain how a species specific treaty rightcould extend the geographic scope of the treaty.

Crown's Position

96 The Crown argued that the right is to hunt over the unoccupied lands not a right to hunt aspecific species or type of game. Whilst there is no doubt elk is prized for the large amount of meatthat can be obtained relatively effortlessly, I am of the opinion this can only be relevant whenconsidering whether there is a prima facie infringement of an alleged Aboriginal right.

Analysis

97 The issue of a species specific treaty right has not been addressed in British Columbia or theSupreme Court of Canada. However, in the context of Aboriginal rights, courts have concluded,with the exception of one case, that an Aboriginal right to hunt is a general right and not speciesspecific. In Sappier at para. 21, the Court found "an aboriginal right cannot be characterized as aright to a particular resource because to do so would be to treat it as akin to a common law propertyright." In Powley at para. 20, the Court stated "[t]he relevant right is not to hunt moose but to huntfor food in the designated territory" (emphasis in original). In the recent decision of Lax Kw'alaamsIndian Band v. Canada (Attorney General), 2008 BCSC 447, [2008] 3 C.N.L.R. 158, JusticeSatanove held at para. 498 that an Aboriginal right "is not limited in terms of species of the specificresource which formed the subject of the ancestral activity on which the aboriginal right is based."

98 It appears the only case that deals with an Aboriginal right to harvest a particular species is R.v. Gladstone, [1996] 2 S.C.R. 723, [1996] 4 C.N.L.R. 65 [Gladstone]. However, in Gladstone therewas historical evidence that harvesting and selling a specific species, herring spawn on kelp, was atraditional practice and an integral feature of the culture of the Heiltsuk Band.

99 In R. v. Lefthand, 2007 ABCA 206, [2007] 4 C.N.L.R. 281 [Lefthand], the Alberta Court ofAppeal considered a treaty right to fish in which the right was specifically subject to regulations. In

discussing seasonal and species limitations it said at para. 91, "being able to hunt and fish 'yearround' just means that there will always be food available, not that there is a right to harvest everyspecies at all times."

100 There is nothing in the language of the treaty that would suggest the signatories intendedthere would be a treaty right to hunt a specific animal. The evidence has established that some CoastSalish people hunted different types of game in accordance with their availability. As JusticeGarson stated in Ahousaht Indian Band v. Canada (Attorney General), 2009 BCSC 1494, [2010] 1C.N.L.R. 1 [Ahousaht Indian Band], at para. 383, "Species gained and lost importance dependingupon their abundance."

101 On the basis of this case law, I am satisfied that any right to hunt pursuant to the DouglasTreaty is a general right to hunt and not a right to hunt specifically for elk. In addition, no speciesspecific right could give the defendants access to hunting in territories outside the geographic scopeof the treaty, which as discussed above, is limited to territory on which signatories actually hunted.

102 In advancing the claim of a species specific right, the defence emphasized the importance ofelk in Tsartlip and Songhees cultural practices. Whether the defendants have established anAboriginal right to hunt elk specifically because it was integral to their culture will be consideredlater in this judgment in the context of the alleged Aboriginal right to hunt elk.

Internal Limit to a Treaty Right

103 Because I have found that the defendants do not benefit from a treaty right to hunt atCowichan Lake, either pursuant to kinship reciprocity or to a species specific right, it is not strictlynecessary to determine whether the alleged treaty rights are subject to an internal limit. However, inthe event that I am wrong and treaty rights can be established in these circumstances, I will nowconsider whether there is an internal limit on such rights.

104 The Crown argues if there is a treaty right, it is subject to two internal limits. First the allegedtreaty right is limited by the need for conservation and second, this right is limited by therequirement that it be exercised in accordance with traditional permissions and protocols.

Internal Limit: Conservation


105 The defendants say, based on the Supreme Court of Canada's judgment in Morris, their treatyright to hunt is an untrammelled right.

106 The defence submits that the conclusion in Lefthand that conservation is necessarily aninternal limit to a treaty right is wrong and misinterprets all of the Aboriginal rights cases decided inthe Supreme Court of Canada, thereby undermining the Court's reasoning. I note, however, that the

Supreme Court of Canada denied leave to appeal: [2007] S.C.C.A. No. 468.

107 In the alternative, the defendants argue that even if there is an internal conservation limit,there is no legitimate conservation issue pertaining to the elk at Cowichan Lake. They claim that theCrown misstated the degree of the conservation issues and point to the Crown's conservation expertwho acknowledged there were sufficient elk in the Shaw Creek area on the north shore of the lakefor a limited entry hunt, both in 2002 and at the present time. Therefore, in these particularcircumstances, they say there can be no internal limit of conservation on the defendants' allegedtreaty right.

Crown's Position

108 The Crown argues that Morris does not provide such a sweeping treaty right to hunt. Rather,Morris clearly acknowledged that treaty interpretation involves an examination of potential internallimits to the rights established by the treaty. The Crown also relies on R. v. Horseman, [1990] 1S.C.R. 901, [1990] 3 C.N.L.R. 95 [Horseman cited to S.C.R.], for the proposition that there can bean internal limit on the treaty right to hunt even when the treaty makes no specific reference to sucha limitation.

109 In addition to the internal limit on dangerous hunting found in Morris, the Crown submitsthat conservation is an internal limit. The Crown claims that because hunting in a manner thatendangers or damages the sustainability of an existing resource was not a traditional Aboriginalpractice, the treaty signatories could not have intended to permit such hunting. In fact, the Crownsubmits that the authorities conclude conservation or continuation of a species is a key feature ofAboriginal tradition and culture and says the First Nations deponents agreed with this. Thus,provincial efforts directed specifically at conservation are consistent with the expectations of theexercise of any treaty right to hunt.

110 The Crown also relies on Sparrow for support. There, the Court found at 1114, "theconservation and management of our resources is consistent with aboriginal beliefs and practices,and, indeed, with the enhancement of aboriginal rights." At 1119, the Court said Aboriginal peopleshad a "history of conservation-consciousness and interdependence with natural resources".

111 Further, based on decisions such as Lefthand, the Crown argues that treaty rights aremulti-generational. As a result, in the appropriate circumstances, conservation can be an internallimit on a treaty right. The Crown says that Lefthand stands for the proposition that there is no rightto hunt in a manner that violates this implied limitation based on conservation.

112 Thus, the Crown submits it is contrary to common sense, contrary to the evidence of theAboriginal witnesses and contrary to the conclusions of the Supreme Court of Canada onAboriginal culture that the Aboriginal signatories would have intended that the treaty right to huntallowed them to endanger or extinguish the very resources they apparently sought to preserve.Therefore, if there is sufficient evidence that the treaty beneficiary hunted in such a manner as to

affect the viability or sustainability of a fragile resource, the treaty right to hunt is not infringed asthere is no treaty right to hunt a resource to extirpation.

Legal Principles

113 The concept of an internal limit was revisited in Morris. In Morris, albeit in dissent, ChiefJustice McLachlin stated at para. 119:

119 However, the fact that the treaty protects the means and methods of huntingdoes not negate the internal limit on the right: the treaty hunting right does notinclude the right to hunt in a manner that endangers the safety of the hunter orothers. Because dangerous hunting falls outside the scope of the protected treatyright, the province is free to regulate in this area. ...

Likewise, the majority acknowledged at para. 35 that treaty rights are subject to limits:

35 We agree, as stated earlier, that it could not have been within the commonintention of the parties that the Tsartlip would be granted a right to huntdangerously, since no treaty confers on its beneficiaries a right to put humanlives in danger. This limitation on the treaty right flows from the interest of allBritish Columbians in personal safety. It is also confirmed by the language of theTreaty itself, which restricts hunting to "unoccupied lands", away from any townor settlement. ...

114 The majority at para. 37 then considered how to identify and define internal limits. Theyfound:

37 ... The consensual nature of treaty rights and their specific origin and structuredictate that a respectful approach be adopted. Individual statutory provisionshave to be evaluated to determine whether, based on the available historicalevidence, they are consistent with the common intention of the parties to thetreaty.

115 In relation to the particular Douglas Treaty at issue, the majority held at para. 38:

38 In our view, the best reconciliation of the parties' intentions is one thatpreserves as much as possible the ancient practices the Tsartlip would haveunderstood as forming part of their "liberty to hunt" under the Treaty, subjectonly to the limit that they do not have a right to put lives or property at risk. ...[Emphasis added.]

116 The Court made it clear that if an internal limit falls outside of a protected treaty right, theprovince is free to regulate in that particular area. Thus in Morris at para. 56, the majority found that

when "a treaty beneficiary is proved to have hunted dangerously, the Treaty does not provide adefence to charges" that he or she hunted dangerously.

117 Sometimes, an internal limit may be framed as the limited scope of the treaty right. Forexample in Marshall #1 at para. 57, the Court found that a right to hunt and fish for food "naturallyrestricts quantities". In the case of Marshall #1, the treaty right to continue to obtain "necessaries"provided a limitation, contemplated by the parties at the time of signing, on the band's right to tradewhat they acquired through hunting and fishing. The Court then found at para. 61:

61 Catch limits that could reasonably be expected to produce a moderatelivelihood for individual Mi'kmaq families at present-day standards can beestablished by regulation and enforced without violating the treaty right. In thatcase, the regulations would accommodate the treaty right. Such regulationswould not constitute an infringement that would have to be justified under theBadger standard. [Emphasis in original.]

118 In Marshall #2 at paras. 37 and 39, the Court elaborated on what it meant in para. 61 ofMarshall #1:

37 In other words, regulations that do no more than reasonably define theMi'kmaq treaty right in terms that can be administered by the regulator andunderstood by the Mi'kmaq community that holds the treaty rights do not impairthe exercise of the treaty right and therefore do not have to meet the Badgerstandard of justification.

...

39 Only those regulatory limits that take the Mi'kmaq catch below the quantitiesreasonably expected to produce a moderate livelihood or other limitations thatare not inherent in the limited nature of the treaty right itself have to be justifiedaccording to the Badger test.


119 In considering what can be regulated, the Court in Marshall #1 at para. 65 found:

65 Further, the appellant was charged with fishing during the close season withimproper nets ... Such a regulation is also a prima facie infringement, as noted byCory J. in Badger, supra, at para. 90: "This Court has held on numerousoccasions that there can be no limitation on the method, timing and extent ofIndian hunting under a Treaty", apart, I would add, from a treaty limitation to

that effect.

120 As mentioned, the Crown relies on Lefthand, a recent decision from the Alberta Court ofAppeal. I note that although the case concerned a treaty right, the court appeared to frequently blurthe distinction between Aboriginal and treaty rights even though the two are distinct concepts. Indiscussing implied limitations on Aboriginal rights at para. 77, Justice Slatter wrote:

[77] .... In recognition of the fact that hunting rights are communal,multi-generational rights, they are implicitly subject to laws respectingconservation: Sparrow at pg. 1114, quoting Kruger v. The Queen, [1978] 1S.C.R. 104 at pg. 112; Horseman, at pp. 935-6; Marshall (#2) at para. 29. At thevery least this means hunting rights cannot be exercised in a way that (a) destroyshabitat (b) causes extinction or extirpation of a species, or (c) damages thebreeding stock or the ability of a species to sustain itself. The significance ofthese implied limitations is that government regulations on these topics are notinfringements of the right at all; they are implied limitations inherent in therights. While Morris shows that such regulations cannot be overbroad, they donot have to be "justified" as if they are breaches of the rights.

At para. 96, Justice Slatter went on to find:

[96] It is not disputed that conservation and safety regulations are within theintended scope of the proviso for regulations in the Treaty. As stated in Badger atpara. 70, ". . . by the terms of the Treaty, the government would be permitted topass regulations with respect to conservation." While the common law wouldimply such a limit on aboriginal rights anyway (supra, para. 77), the wording ofthe treaties has been interpreted as also recognizing this limit. ... [Emphasisadded.]

121 In explaining why Cory J's statement in R. v. Badger, [1996] 1 S.C.R. 771, [1996] 2C.N.L.R. 77 [Badger cited to S.C.R.], quoted above in para. 119, did not apply, Justice Slatter notedat para. 85:

[85] Universal statements cannot be made with respect to all aboriginal huntingrights without examining the scope of the particular right in question, and thecircumstances in which it is being exercised. It is unlikely that these statementsreflect the intended meaning of the documents granting aboriginal hunting rights,if only because there were fish and game laws in force at the time: Horseman atpg. 936. It is unlikely that such rules even made sense in 1877 or 1930, but theycertainly make no sense in the 21st century. There is no evidence on this recordthat prairie aboriginal hunters ever hunted in this manner (all species at all timesof the year). ...

Analysis: Is Conservation an Internal Limit?

122 The question to be asked, pursuant to the Crown's argument, is if there is a treaty right, isconservation an internal limit on that treaty right?

123 I will start with the crux of the Crown's argument: the Alberta Court of Appeal's decision inLefthand. At first blush it is difficult not to conclude that the lengthy decision in Lefthand is correctand that conservation is an internal limit to all treaty rights. With respect, I cannot do so. In myopinion, before making the sweeping generalization that all hunting rights are subject to the implicitlimitation of conservation the court should have recalled its own observation. At para. 78, the courtwrote:

[78] ... The exact content of the right depends on the source of the right. Whilethe cases sometimes make generalized and sweeping statements about theattributes and limits of aboriginal rights, care must be taken before it is assumedthese statements are intended to apply universally to all aboriginal rights:Gladstone at para. 65.

124 All of the cases the court cited for the proposition that conservation is an internal limit to alltreaty rights are distinguishable from the present case and the finding of such a common law limitwas not necessary to determine Lefthand. What is problematic is that the first cases relied upon areSparrow and Kruger which concerned Aboriginal rights, not treaty rights.

125 Furthermore, Horseman contained a treaty with the same wording as that found in Badgerand Lefthand. The treaty explicitly stated that hunting rights were "subject to such regulations asmay from time to time be made by the Government of the country" (Horseman, para 15; Lefthand,para. 4; Badger, para. 31). Based on this and the historical evidence, the Court in Badger at para. 40found "the right could be limited by government regulations passed for conservation purposes." Thehistorical evidence in Badger established that at the time of signing there was already conservationlegislation in place, including total bans on the hunting of certain species. This legislation had beenenacted as early as the 1880s. Thus, as noted at para. 70, "[i]n light of the existence of theseconservation laws prior to signing the Treaty, the Indians would have understood that, by the termsof the Treaty, the government would be permitted to pass regulations with respect to conservation."Justice Slatter quite properly reached a similar conclusion in Lefthand at para. 97.

126 The same cannot be said in the present case. The Crown provided no evidence that when theDouglas Treaties were signed, the Songhees or Tsartlip bands were aware of any conservationmeasures the government had put in place, if such measures even existed in their traditionalterritory at the time. There is no evidence, whether historical or based on the wording of the treatyitself, that the Aboriginal signatories intended to subject their hunting rights to conservationregulations established by the settlers who were not as familiar with the local resources as theywere. Unlike other treaties, the Douglas Treaty did not explicitly subject hunting and fishing rightsto governmental regulation.

127 Finally, in Marshall #2, which was a case that concerned commercial rights, the Court foundat para. 29 that "[c]onservation has always been recognized as a justification of paramountimportance to limit the exercise of treaty and aboriginal rights" (emphasis added). Thus, the Courtdid not find conservation to be an internal limit; rather, conservation was considered after a primafacie infringement was established. However, the majority in Morris at para. 55 found a provincialgovernment was not entitled to rely on justification. The majority stated:

55 Where a prima facie infringement of a treaty right is found, a province cannotrely on s. 88 by using the justification test from Sparrow and Badger in thecontext of s. 35(1) of the Constitution Act, 1982, as alluded to by Lamer C.J. inCôté, at para. 87. The purpose of the Sparrow/Badger analysis is to determinewhether an infringement by a government acting within its constitutionallymandated powers can be justified. This justification analysis does not alter thedivision of powers, which is dealt with in s. 88. Therefore, while theSparrow/Badger test for infringement may be useful, the framework set out inthose cases for determining whether an infringement is justified does not offerany guidance for the question at issue here.

128 Justice Slatter also referred to Badger at para. 77 for the proposition that the common lawplaces a limit on Aboriginal rights due to conservation. Para. 77 of Badger states:

77 This said, there are also significant aspects of similarity between aboriginaland treaty rights. Although treaty rights are the result of mutual agreement, they,like aboriginal rights may be unilaterally abridged. See Horseman, supra, at p.936; R. v. Sikyea, [1964] 2 C.C.C. 325 (N.W.T.C.A.), at p. 330, aff'd [1964]S.C.R. 642; and Moosehunter, supra, at p. 293. It follows that limitations ontreaty rights, like breaches of aboriginal rights, should be justified.

129 With respect, I am unable to see how the proposition posited by Justice Slatter is supportedby that paragraph. It provides that abridging treaty rights must be done on the basis of justification,a basis that is no longer available to provincial governments after Morris, which was decided beforeLefthand. In Morris, there is no mention that conservation is a universal internal limit on allAboriginal treaty rights.

130 I appreciate conservation was not before the Court in Morris. However, the Court at para. 38was unequivocal in stating the right to hunt pursuant to a Douglas Treaty is "subject only to thelimit" that the signatories do not have the right to hunt dangerously. It appears the Court concludedthat no other limitations could be established based on the wording of the treaty and historicalcontext. I am mindful of the fact that leave to appeal the decision in Lefthand was not granted.Nevertheless, I am satisfied that for these reasons, there is no internal limit of conservation on atreaty right.

Analysis: Is the Scope of the Treaty Limited by Conservation?

131 Although I find that there is no internal limit on the basis of conservation, per se, I am of theopinion that this does not end the matter. Given all the judicial references to conservation beingfundamental to Aboriginal culture and beliefs, it seems sensible that conservation should play a rolein determining whether an Aboriginal person is properly exercising a treaty right. On this point, inattempting to establish an internal limit on conservation the Crown made reference to traditionalAboriginal practices. While it may best be considered the limited scope of the treaty right, ratherthan an internal limit, I find that the treaty right to hunt is limited to the Aboriginal signatories'traditional practices, albeit modified for modern methods. The treaty right specifically uses thewords "as formerly". Even if that is only applicable to fisheries, although I make no finding on thatparticular issue, the majority in Morris at para. 38 accepted that the parties intended to preserve theTsartlip's "ancient practices".

132 Thus, in order to determine whether the scope of the treaty is restricted by the need forconservation, I must first determine whether at the time of signing the bands traditionally hunted ina sustainable manner. That is, did the band have a practice of considering survival of the species orthe continuation of the resource for the benefit of future generations? If that is established, I mustnext consider whether the regulation prohibiting the hunting of elk in the Cowichan Lake area fallsoutside of the scope of the treaty right. If so, then it can be enforced without violating the treatyright. Even though the onus is on the defendants to establish there is a treaty right, if they hadsucceeded, I accept that the burden of showing the regulations do not inherently constitute aninfringement of a treaty right lies with the Crown. The Crown conceded that it would have toestablish that there is an internal limit of conservation. Even though I have concluded there is nosuch internal limit, the burden of establishing that a particular hunt falls outside the scope of thealleged treaty right likewise logically falls on the Crown.

Traditional Practices: Sustainability

133 Besides the general findings in Sparrow relating to Aboriginal practices of conservation, asnoted earlier, all of the Aboriginal deponents who testified in this matter regard the concept ofpreservation of the species as integral to their culture and thinking.

134 Angus Smith, a witness for the defence, was 87 years of age when he testified and a memberof the Cowichan Tribes. He agreed that using the resource "properly" involved managing the elkand the deer that were available for food so they would not "disappear." During his description ofthe smoking process he said, "if we don't be careful of how we use it, elk will just disappear. Thatwas history, the way the old people talked about it."

135 Chief Robert Sam, Chief of the Songhees Band, confirmed that continuance of resources wasan important and desirable outcome. He agreed with Crown counsel that if you had a fishing site,you would not want to overfish so you had nothing left. He also agreed that he would want toensure people using a site did so in the manner in which the hosts wanted to manage the site. Giventhis evidence, I am satisfied management and conservation of the resources can be one and the

same.

136 Ivan Morris, the defendant in Morris, is 54 and a member of the Tsartlip Band. Mr. Morrisindicated in cross-examination that conservation was part of his Aboriginal culture:

Q. And it would be part of your culture that in fact that respect for animals anddesire to continue to allow them to exist would mean that you would believe inpracticing some form of conservation. Is that fair to say?

A. Yes.

He also agreed that he would want the animals to survive for future generations:

Q. I am just saying you would want to ensure that there are enough animals left orthat they would be able to continue so that your descendants and futuregenerations would be able to hunt them?

A. Yes.

This is one reason why, in his opinion, a person should not hunt pregnant females:

Q. In terms of conservation in your culture if you like, what were you taught aboutmanaging the resources?

A. Managing the resources?Q. Ensuring their survival and their long term life.A. Well, we have - we talk when not to hunt and that specifically means when they

are carrying.Q. When - I'm sorry -A. When the females are carrying.Q. Right. So, you wouldn't want to hunt a pregnant cow or a pregnant doe, correct?A. Yes.

137 Elmer George, father of the defendant Bonnie George, is 72 years of age and a member ofthe Songhees Band. Mr. George testified "we were taught then not to, you know, over hunt in anyarea". He also agreed "you'd want to ensure that the elk continued to survive." He likewiseconfirmed that he believed it was inappropriate to hunt pregnant does:

Q. ... I understand that there -- at least among some Coast Salish, there is aprohibition, or you're not supposed to hunt pregnant does or pregnant cows, isthat right?

A. Yes.Q. So, if you knew that a female elk or female deer was pregnant, you would not

shoot that animal.A. No.Q. And isn't the reason for that that you have a - one, you have respect for the

animal, isn't that right?A. Yes.Q. And, secondly, isn't it because that particular animal that may be pregnant is

going to help bring more deer and more elk into the world, isn't that right?A. Yes.Q. And isn't that because, again, you want the species, you want the animals to

continue, is that right?A. Yes.

138 Mr. Bartleman, the defendant in Bartleman and a member of the Tsartlip Band, was 53 yearsold when he testified. He was asked about survival of the species:

Q. ... Wouldn't you want to ensure that the elk and the deer remain so that yourchildren and your nephews could continue to hunt them in Copper Canyon?

A. Yes, I would want to ensure that.Q. So isn't that true for all the places in which you hunt? You'd want the animals to

continue so that your children and their grandchildren could continue to huntthere?

A. Yes.

139 Norman George is a Songhees elder. He confirmed that he would want to ensure the survivalof the species for future generations. He was asked:

Q. And you would want to ensure, would you not, that animals would survive foryour children and your grandchildren to be there in the future?

A. Yes.Q. Would you agree with that?A. Yes.

140 Arvid Charlie is a Cowichan member who testified in-chief:

Q. Is there a phrase - a teaching of the elders about hunting of what is available?A. Well, in the past there's plenty. And as I said earlier, you moved. When you kind

of hunted an area or harvested an area, you moved to a different area. So that waspart of the hunting method of - I guess you could say conservation.

141 Mr. Charlie agreed in cross-examination "it was important to ensure that you didn'tover-harvest an area. Movement from place to place was a traditional form ... of conservation". Infurther cross-examination he was asked:

Q. The elk is very important, and I'm going to suggest to you that the continuationof the elk is very important; is that fair to say?

A. Yes.

Q. So that it would be important to the Cowichan that the elk not be hunted toextinction; is that -

A. Yes.Q. -- fair to say? So you would be concerned if elk were going to disappear from

Cowichan culture; correct?A. Yes.Q. And you had testified that the Cowichan engaged in some conservation measures

as we discussed earlier by hunting only at certain times; correct?A. Yes.Q. And did that apply to hunting elk as well?A. It applied to everything, including elk.Q. So you would take measures traditionally to ensure that the elk were kept at I'm

going to say a healthy level; is that fair to say?A. Yes.

Mr. Charlie also confirmed that generally an Aboriginal person did not kill pregnant female animalsor females with their young because, as he stated during examination-in-chief, these animals are"your seeds for future."

142 The evidence of these Aboriginal witnesses clearly illustrates the Coast Salish have along-standing belief that persons should not endanger the perpetuation of resources and, in the past,took actions, such as varying hunting areas and not hunting pregnant animals, to ensure that this didnot occur. This evidence is entirely consistent with numerous references by the Supreme Court ofCanada and appellate courts as to the significance that the sustainability of resources has toAboriginal people. One of the latest pronouncements is from the Ontario Court of Appeal. InShipman, mentioned above, LaForme, J.A. stated at para. 45, "In Aboriginal custom, protection andconservation of harvesting resources is paramount".

143 Ms. Kennedy in her thesis cited above, quoted at 218-19 a Homalco elder, Ambrose Wilson,who essentially indicated that owners of hunting places wanted to be informed of who was huntingin the area so they would know whether to access that area for harvesting. Relying on the sameevidence at 228-29 she concluded:

Owners required others to seek permission before searching for game in the area.Monitoring the numbers of hunters therefore permitted the owner to safeguardagainst over-harvesting.

Earlier at 223-24, Ms. Kennedy described general resource management strategies:

To overcome potential resource stress and the possibility of inadequate foodsupplies, resource owners employed several management strategies. Some oftheir tactics could be social, such as controlling access to the resource, managingthe labour force, exchanging food products with other elite individuals, or simply

moving to a more productive area. Other strategies required technologicalintervention, including the management of the resource itself. Even where thearea's resources were regarded as the presumptive property of all thosecomprising the tribe, principles of resource management are evident, andmanagement rested in the hands of a very few individuals.

144 Given the totality of the evidence, I am satisfied that at the time of signing, the Tsartlip,Songhees and Cowichan engaged in resource management as a traditional practice so as to ensureviability of their resources for themselves and future generations. As a result, I will now turn towhether the absolute prohibition on hunting elk at Cowichan Lake would impair the treaty right,keeping in mind that the scope of this right is limited to prevent overhunting.

Do the Regulations Infringe the Treaty Right?

145 I note that in Lefthand at para. 71, Justice Slatter found:

[71] ... Because Aboriginal rights evolve over time, in the 21st century they mustbe interpreted in recognition of the fact that fish and game stocks are simply notas plentiful and viable now as they were in the 19th century, that the humanpopulation has grown exponentially, and that technology has made humans moreefficient hunters and a more burdensome species on the environment generally.

It is important to recognize that the traditional practice of sustainability must also evolve over timein response to modern realities. While at the time of signing, it may not have been a traditionalpractice to forbid the hunting of a particular animal in a particular area so as to prevent extirpation,such can be a reasonable extension of a band's traditional practices of resource management.

146 Based on the evidence, I am satisfied a primary concern of the Aboriginal signatories at thetime of signing was survival of the species or, in other words, preventing the disappearance of ananimal so the hunt would continue in perpetuity. This seems narrower in scope than the manner inwhich courts have recently defined conservation; courts have defined this notion as efforts directedat maintaining numbers above what is required for mere survival of a species. In R. v. Bonneau,2004 BCSC 1370, 66 W.C.B. (2d) 315 [Bonneau], Justice Crawford said at para. 26:

[26] ... His Honour accepted the latter proposition and adopted the conclusion ofMacDonald P.C.J. in R. v. Aleck et al, [2000] B.C.J. No. 2581 (P.C.) ..., thatconservation is more than mere survival of the species, it encompasses therebuilding for the future benefit of all user groups, and the creation of a marginof safety to lessen the adverse impact of unforeseen contingencies. ... He alsofound the aboriginals' contention that their need for fishing be self-defineduntenable, simply because the control and management of the fishery would beimpossible.

147 The B.C. Supreme Court again considered conservation in R. v. Douglas, 2008 BCSC 1098,[2008] 4 C.N.L.R. 158 [Douglas]. At para. 29, Justice D. Smith stated:

[29] The jurisprudence establishes, however, that conservation is more thanpreservation of a stock and includes enhancement of that stock for the futurebenefit of all user groups as an essential component in the management of theresource. ...

148 As stated earlier, the Provincial Government, based on its data, determined before theoffences occurred that the elk population at or around Cowichan Lake was "vulnerable" and, in1968, placed an absolute prohibition on hunting elk in that area. This absolute prohibition stillremains in effect today.

149 The first question then is, even with sustainability of the resource being a traditionalAboriginal belief, is the regulation in question overbroad, pursuant to the principles in Morris suchthat the Court would have to consider whether this has been a prima facie infringement.

150 The Crown called Mr. Kim Brunt. He was declared an expert in conservation matters. Hewas the only expert to testify about conservation issues and the size of the elk population. Heoutlined how significant it was to consider the specific characteristics of elk in determining whatresource management techniques and objectives should be applied to them.

151 Mr. Brunt testified that he was extremely concerned about the viability of this particular herdif unsanctioned hunting was permitted. He explained that the rationale for continuing the closedregulation is because any unsanctioned hunt, based on past experience, could very well diminishthis herd within a very brief period of time, notwithstanding the great strides the Ministry hasachieved in replenishing the resource in the last several years. He feels the elk are still extremelyvulnerable to unregulated hunting. However, the issue is not whether unsanctioned or unregulatedhunting should be allowed; there is nothing in the evidence to contradict his opinion that someregulation is needed. The issue is whether an absolute prohibition on hunting falls outside the scopeof the treaty right.

152 Mr. Brunt acknowledged that in one area by 2001 there were sufficient elk for a limited entryhunt, similar to what occurs north of Cowichan Lake where the government, Aboriginals andnon-Aboriginal stakeholders have all agreed to what they perceive to be a fair and reasonableallocation of elk. He said approximately 20 elk could have been reasonably harvested that year fromthe Shaw Creek watershed on the north shore, depending on the gender of the elk. This was not ahindsight realization and that figure is based on the broader range of conservation goals mentionedin Bonneau and Douglas.

153 The overall number of elk in the Cowichan Lake area is very small. The most substantialherd resides at Shaw Creek on the northern side of Cowichan Lake. It is estimated that there mightbe 175 animals in this area. Most of the kill sites were in the Shaw Creek sub-unit. It is only in the

Shaw Creek area where the herd is substantial enough that there could be a regulated and sanctionedhunt. The alleged conservation purpose for the prohibition at Shaw Creek was to protect theharvestable surplus and prevent lasting damage to the reproductive capacity or sustainability of theherd. While that purpose certainly requires a regulated hunt, as noted by the Crown's expert, thispurpose could still have been achieved even if a hunt of 20 elk was allowed.

154 Instead, I am persuaded, the real motive for continuing the absolute ban in the Shaw Creekarea is the difficulty the Ministry has had in securing an agreement from the First Nationscommunities who have an interest in harvesting elk in this area as to what would be a reasonablelimit and a reasonable allocation between them. Indeed, Mr. Brunt acknowledged the lack of anagreement was why there had been no limited entry hunt, or any other allocation. As a result, as Mr.Brunt testified, there have been "missed opportunities" for a limited elk hunt at Cowichan Lake. It isregrettable an agreement was not forthcoming but that does not mean an absolute prohibitioncontinues to be justified and that it does not infringe on the treaty right to hunt, if indeed such aright had been established.

155 As noted by the Supreme Court of Canada in Marshall #2 at para. 23:

23 The various governmental, aboriginal and other interests are not, of course,obliged to reach an agreement. In the absence of a mutually satisfactory solution,the courts will resolve the points of conflict as they arise case by case. ...

156 I am of the opinion the Crown should have made a reasonable effort to discuss appropriateallocations, after which it should have done its best to limit and allocate the resource in anappropriate way, even if no agreement could be obtained. In those circumstances it is more likelythat the regulations would accord with the treaty right. Even the traditional practice of the CoastSalish, according to Ms. Kennedy, was for a few individuals to manage a resource. While in the pastthose persons were Aboriginal, it is a reasonable evolution of the practice that the Crown take onthat responsibility. I acknowledge the Crown does not have an easy or enviable task and frequentlycannot please every, or sometimes any, interested party. I also realize the Crown would have neededtime to assess the circumstances and consult once the elk population in Shaw Creek began to belarge enough for a hunt. Even though I accept the Crown's submission that legitimate concernsabout conservation of a particular resource cannot be frozen in time and specific programs mustaccount for modern realities, I note that the absolute ban continues to this day. This remains the casedespite the elk population achieving levels where a cull may soon be necessary so the herd does notoverpopulate the Shaw Creek watershed. It is also reasonable to conclude the Crown discontinueddiscussions and consultation once it discovered the killing of many elk in the winter of 2001/2002.

157 In these circumstances, I do not accept the Crown's claim that the Ministry cannot allocatethe elk because it has no idea who should receive an allocation given competing submissions byvarious Aboriginal groups. The Crown notes that only the Cowichan and Ditidaht have claimed theCowichan Lake area in treaty negotiations. While other groups may have an "interest" in hunting at

Cowichan Lake, that would be a proper place to start; I do not see that as creating a vacuum assuggested by the Crown. While the defendants may have attacked any allocation as arbitrary, it doesnot stand that a court would necessarily find a regulation invalid because of such an argument. Infact, defence council submitted that any allocation, even if arbitrary, would fulfill the Crown'sobligation to allocate a sustainable number of elk to the extent the size of the herd permitted.

158 As a result, I find that the absolute prohibition on elk hunting in the entire Cowichan Lakearea is, as was the ban on night hunting in Morris, overbroad and inconsistent with the commonintention of the parties to the treaties that hunting would continue as before.

Was the Hunt within the Scope of the Treaty Right?

159 However, before considering whether the absolute prohibition, being overbroad, has resultedin a prima facie infringement of the rights of these defendants, it is necessary to determine whetherthe defendants were hunting in a manner consistent with the scope of their treaty rights. That is, hasthe Crown established the manner and location of the hunt were outside the scope of any allegedtreaty right given the fragile nature of the elk resource. As I have determined earlier, the scope oftheir treaty right is limited to prevent overhunting. If the defendants were not hunting within thescope of their treaty rights, the overbroad regulations cannot be said to have impaired their exerciseof their treaty rights in this case. In such circumstances, even if the defendants could establish aprima facie infringement, of a treaty right to hunt, it would not afford the defendants an Aboriginaldefence.

160 In considering this issue, it is important to consider the areas outside of Shaw Creek in whichhunting took place. Three elk were shot in an area known as McKay Creek on the north shore of thelake. In 2001, the McKay Creek elk population was nearing the point where a small sanctioned huntmight have been considered. However, I accept that hunting in McKay Creek at that point wouldhave been detrimental to the general survival of that elk herd. It is clear that the prohibition onhunting at these other sites was necessary to prevent the extirpation of these small populations.

161 The evidence has established there are no viable populations of elk in three watersheds at thesouth part of Cowichan Lake. The herds in the south part range from four to five to ten animals plusor minus 75%.One other such site where hunting occurred was at Honeymoon Bay, which is in theSutton sub-unit. Edwards stated to a conservation officer that he had killed two elk at that location.The estimate of elk in this area at the time was perhaps five; there was no established herd. The hunthere had the potential to completely undermine the Crown's attempt to sustain elk in this sub-unit.

162 As a result, I agree with the Crown that an outright ban on hunting elk in these other areaswas necessary and would be an allowable regulation in the circumstances. Even the killing of oneelk could lead to unfortunate consequences. I also observe that a traditional Aboriginal practice wasto move from hunting area to hunting area so as to avoid over-harvesting. In a sense, a prohibitionlimited to a single species in a very specific area would replicate this. Therefore the hunting thatoccurred in these areas cannot be said to fall within the defendants' alleged treaty rights.

163 In considering whether the hunt was within the scope of the defendants' treaty rights, it isfurthermore necessary to consider the number of elk killed and the manner of the hunt. ConstableHorncastle testified that, as mentioned above, conservation officers found the remains of 21 elk onthe north shore during the winter of 2001/2002. Although it must be remembered that the Crownhas only proven beyond a reasonable doubt that these defendants were responsible for killingconsiderably fewer, the 8 elk proven to have been killed by the defendants shows considerabledisregard for conservation needs, particularly considering that the defendants did not seekpermission from the Ditidaht or Cowichan to enter territory which clearly cannot be consideredtraditional Songhees, Tsartlip or Nanaimo territory.

164 Edwards advised a conservation officer that in early February 2002 he shot two "big cows".On February 8, 2002, conservation officers found the remains of four elk cows near Shaw Creek.The conservation officers identified that two of these cows had been pregnant, despite thetraditional Coast Salish practice of refraining from hunting pregnant animals as a form ofconservation.

165 In addition, on one occasion, the defendants left a significant amount of meat in the bush,which is again inconsistent with overall Coast Salish resource management practices and contrary totraditional Aboriginal beliefs.

166 Given the totality of the evidence, and in particular the number of elk killed, the locations atwhich they were killed, and that two were pregnant cows and one a calf, I find that the defendantsdid not hunt in a reasonable fashion according to traditional practices regarding sustainability ofresources. As stated by Justice Dickson (as he then was) speaking for the Court in Myran v. TheQueen, [1976] 2 S.C.R. 137, [1976] 1 W.W.R. 196, and as reiterated by Chief Justice McLachlin inher dissent in Morris at para. 121, "the right [to hunt] must be exercised reasonably." In making thisfinding, I acknowledge that some of the elk were shot in the Shaw Creek area, where a limited hunt,if conducted in a manner consistent with traditional resource management practices, could havefallen within the scope of a treaty right to hunt, had such a right been established.

167 For these reasons, the manner of the hunt fell outside the scope of the defendants allegedtreaty rights and, for this reason as well, would preclude them from successfully advancing anAboriginal defence even if they had succeeded in establishing a treaty right to hunt at CowichanLake.

Limitation on the Scope of the Treaty:Traditional Permissions and Protocols

168 Having established that only dangerous hunting can constitute an internal limit on the treatyright to hunt, it is clear that the second internal limit asserted by the Crown, namely the need tofollow traditional protocols in exercising kinship reciprocity, cannot be considered an internal limit.However, in light of the above discussion, I will consider whether this requirement can beconsidered a restriction on the scope of the Douglas Treaties.

169 As with the restriction on the scope of the treaty right for conservation purposes, I find thatfor the defendants to validly exercise their treaty right to hunt for food, social and ceremonialpurposes, they must have followed traditional practices in existence at the time of the treaty signing,allowing for the evolution of such practices. As discussed below, the Crown alleges that in thecontext of kinship reciprocity, these traditional practices include the requirement that permission besought before any right to access resources is exercised. If the Crown is able to establish thedefendants did not abide by the requirements of such practices, the defendants' actions do not fallwithin the scope of their treaty right. As such, even if the regulation is found to be overbroad, atreaty right defence is not applicable.

170 In particular, the Crown submits that Aboriginal persons from outside of a traditionalterritory do not have unfettered access to that territory irrespective of any alleged kinshiprelationship.

171 The defence, on the other hand, argues the defendants were not required to obtain permissionfrom the Cowichan or the Ditidaht or to comply with any other traditional protocols in order to huntin the traditional territory of the Cowichan or Ditidaht. They submit, as we saw earlier, that theycould access particular areas pursuant to kinship reciprocity and exercise their right to huntunilaterally even if they had never previously hunted in that area.

172 Even if permission was required, the defendants say that as children or grandchildren ofCowichan persons, they have an implied permission to hunt in those areas so no notice is necessary.The defence submits this implicit permission can be obtained through kinship acknowledgementwithin the Big House or by the host nation generally knowing a person as kin.

173 The Crown's expert, Mr. Dewhirst, and the defendants' experts, Ms. Vanden Berg and Dr.Boxberger, differed in their opinions as to whether permission was necessary or not.

174 I do not accept or give any weight to Ms. Vanden Berg's generalization that permission wasnot required "if you were hunting in the area bounded by your reciprocal rights." I agree with theCrown that her conclusion is unsubstantiated as she did not provide the source material upon shewhich she relied to base this conclusion. It is also contradicted by the defendants' own Aboriginaldeponents.

175 By contrast, to support his conclusion that either permission needed to be obtained from ornotice provided to the host nation, Mr. Dewhirst referred to authorities such as W.H. Lomas' notesand Ms. Kennedy's thesis. Lomas was an early missionary and later an Indian Agent in the 1870sand 1880s in the area. The defence argues that because there was only a single reference topermission in Kennedy's paper and Brown's journal contained no specific reference to the need forpermission, I should find permission was not required. I do not agree.

176 On August 16, 1871, Lomas wrote in his journal, printed in Thirteenth Annual Report of theMissions of the Church of England in British Columbia (London: 1872) at 18:

As soon as we arrived at the lake the families divided, each havinghunting-grounds many miles apart, on which it would be dangerous for anotherIndian to trespass.

In his journal printed in Fourteenth Annual Report of the Missions of the Church of England inBritish Columbia (London: 1873) at 21, Lomas noted that Cowichan Lake "is also a dividing pointbetween important and hostile tribes of Indians."

177 Brown's journal indicated that hunting areas existed in and around Cowichan Lake. Mr.Dewhirst claimed Brown's journal alluded to the issue of access to resources in that area.

178 Mr. Dewhirst also relied on Ms. Kennedy's thesis, in which she wrote at 186:

... Points of attachment emanated from both parents to greater groups of kin, andincluded any of the four grandparents. Comments from Coast Salish aboriginalconsultants clearly state that whatever one's natal village, an individual wasrelated equally in kinship to his or her mother's and father's blood kin, andthrough relatives on both sides, could activate available rights and privileges.Exercising choice, however, demanded acceptance by the group with whom anindividual wished to associate. Permission to do so was not generally refused,especially to relatives of a recognized social standing, as the teachings of allwell-bred individuals included the importance of extending hospitality to othersand supporting those considered to be kin.

179 Mr. Dewhirst concluded that access could be granted to non-resident kin who establishedreciprocal rights. However, notice or permission was required. Given the totality of the evidence, Iam satisfied his opinion is consistent with the general Aboriginal custom of "stewardship" ormanaging resource areas and maintaining a healthy supply of any particular resource. Even Ms.Vanden Berg discussed the concept of "stewardship" in her testimony. She testified that "I've heardfrom the Elders, ownership was more a sense of stewardship; of taking care of the area; of makingsure that the people who used it knew how to take care of it." She also testified in relation tostewardship of areas where hunting took place, stating that "the stewardship would be in the form ofmaking sure that your children did not abuse the resource."

180 I accept Mr. Dewhirst's opinion that outside hunters, even if related to the host group, would,out of respect for the host group, request permission to utilize the host group's territory or, at aminimum, provide notice that they would be entering upon the host's traditional or claimed territory.

181 In fact, in her cross-examination, Ms. Vanden Berg acknowledged, or at least implied, thatthere was no unfettered access to outside resources. She stated that visiting hunters could "huntaccording to the traditions of their people in an area bounded by kinship rules using the strategiesthat they had always used in the past". I agree with the Crown that "kinship rules", coupled with thesource materials referenced by Mr. Dewhirst and his expert opinion, would include requirements for

permission and protocols pertaining to resource management.

182 Although Mr. Dewhirst conceded that implicit permission could apply, he explained thatimplicit permission would still require the visiting kin "at least notify them that [they are] going tobe going into an area".

183 As well, most, if not all, of the Aboriginal witnesses indicated that if persons wished to enterinto a resource area outside of their core territory, while they may not necessarily be required to askfor explicit permission, they must at least advise and notify the host nation of their presence andintention to hunt. Even though the evidence suggests permission is not often refused, giving noticeallows the host nation to exercise its discretion and deny access, even to kin, in order to adequatelymanage a resource. This is also why notice is given to a community representative or elder ratherthan through the Big House. If outside individuals had freestanding rights to hunt whatever amountthey wanted, there would be no means of ensuring the host nation met its own needs or that theresource would be sustained. As noted by the Ontario Court of Appeal in Shipman:

[45] In Aboriginal custom, protection and conservation of harvesting resources isparamount and it would be unusual if this was not reflected in the granting ofconsent to share it. Any departure from this aspect of Aboriginal custom wouldprobably negative any consent that may have been granted.

...

[51] Second, because Aboriginal custom includes a paramount protection andconservation of harvesting resources, any consent granted would also need toweigh and consider this concern. Thus, in deciding to grant consent one wouldneed to know all those who are seeking consent and the area the consent appliesto.

[52] In this case, although consent would have been granted after the fact by theChief, there was no opportunity for the Chief, on behalf of the community, toconsider and respond to historical Aboriginal custom. That is, he was not able toproperly consider and weigh the communal rights and protection andconservation of the resource in advance.

184 This weighing of communal rights and conservation was what the Ditidaht Chief did whenMorris Jr. requested permission through Ms. Edgar to take an elk in traditional Ditidaht territory.

185 The evidence overwhelmingly supports the conclusion that the Cowichan and the Ditidahtboth traditionally required notice and still require it. This is exactly why Morris Jr. asked if he could

obtain permission to take one elk in Ditidaht "traditional territory." In my opinion, there can be nobetter evidence as to what is traditional protocol between outside Aboriginal groups and the hostFirst Nation. The evidence also supports the Crown's submission that express permission of theCowichan is required if the hunter is not Cowichan or is a stranger irrespective of any kinship tieswith the Cowichan.

186 Mr. Smith, the Cowichan Tribes member already mentioned, was asked several questionsabout the issue of permission. The following exchange occurred during cross-examination aboutareas on the south shore of Cowichan Lake:

Q Now, if you wanted to go and hunt in that area, would you have to ask them permission -

A Ask permission.

Q So you need to ask permission to go in and hunt. Now, was that true up at Shaw Creek aswell? You needed to ask permission to go in and hunt?

A Ah, never heard anything - anyone who asked permission. The only one that would askpermission would be outside of Cowichan Tribe.

Q So if you were not a member of Cowichan Tribe, you would have to ask permission tohunt -

A Ask permission, yes.

Q Now, who would you ask permission from?

A Anyone that has [indiscernible] to that. The - the Chief.

Q So you would have to ask a Chief or a head man, is that right?

A Yes.

Q And if you didn't ask permission, would the people who hunted there be upset about that; ifyou went and did it anyway? If you weren't Cowichan?

A No.

Q But they wanted you to ask permission before you hunted there?

A Yes.

187 Then after discussing the Cowichan managing the elk resource, the following exchange tookplace with Mr. Smith:

Q And was one way you managed the number of elk so they wouldn't disappear, and deer,was by only allowing as many people in there as you thought could go in there?

A Yeah.

Q And that's why you needed to ask permission?

A Yeah.

188 In cross-examination, Mr. Sheets, counsel for Mr. Edwards, put to Mr. Smith:

Q Alright. I'm going to suggest to you, Mr. Smith, that from time to time people would comeand ask if they could hunt in your area and your uncle or your father would allow them toand say, yes, you can hunt here.

A Yes, as long as they're connected to the families.

[Emphasis added]

Mr. Smith acknowledged that even if you were "connected" by kinship, "to the families" you wouldask for permission.

189 Mr. Bartleman from the Tsartlip band confirmed the evidence of Mr. Smith. Indeed, he wentfurther and confirmed the general conclusion of Mr. Dewhirst that, at the very least, notice to thehost nation is required. During his examination-in-chief, the following was said:

Q So, for example, if you're a Cowichan grandchild, do you have to ask permission to go intoa Cowichan area?

A Not so much as ask permission, I think as to notify them that you will be in that area and alot of it's - it is recognized within the families that's all they need to be just told that you'redoing this activity in this area. If I was invited and I didn't know the person, then I would,you know, be sure that somebody as a community representative is notified by me that Iwill be in that area at that time to do the hunting.

Q Now is that something that is your preference or is that a traditional teaching?

A It's preference. To notify them is a traditional teaching.

Mr. Bartleman also testified:

Q. And would you agree with me that the Cowichan tribes, Cowichan First Nationshould have some, let's say, some say in how resources are used on theirtraditional territory?

A. Yes.

190 In cross-examination, Chief Robert Sam of the Songhees confirmed that there is nounfettered right to access another nation's resources:

Q If someone from outside Songhees wanted to come in and harvest there with permission,would that be something they could participate in?

A Well, I don't think so because it was considered to be a trade item, and so I don't see whythey would give them permission to harvest if they could trade.

Q So, some resources then were not alwaysautomatically available -

A No.

Q For harvesting?

A Correct.

Q Because they would be available for trade; is that right?

A For trade.

Q So, when you're seeking permission to harvest on a site, that permission could be turneddown because the family would want to use it for trade?

A Correct.

Q And would that be - do you have any knowledge of Songhees individuals going to otherFirst Nations or other groups and asking permission to harvest in their areas?

A I believe some of our members came to this territory here to hunt pheasant on the farm-lands, and they had to ask for permission.

Q They needed to ask permission and they could be potentially be turned down becausepheasant might have been a trade item?

A Correct.

191 Similarly, Ivan Morris, a member of the Tsartlip band, testified that in the past he was invitedto hunt outside Tsartlip traditional territory. It is instructive to note he did not testify that he had anunfettered treaty right to hunt in outside areas because of kinship reciprocity.

192 Again, Morris Jr.'s actions prior to the first hunt in January 2002 are compelling. Morris Jr. isrecognized as an important hunter by his people. As I have already observed, he approached Ms.Edgar, a member of the Ditidaht, to request her assistance in gaining consent to hunt in Ditidahtterritory. She testified that after speaking with her brother, Chief of the Ditidaht, Morris Jr. asked

her, "Well, do we - can we go?"

193 During cross-examination by Mr. Sheets, she testified that Morris Jr. "asked me if we wereallowed - what it would take for me - for us - for me to get permission to get an elk."

194 I disagree with the defence's suggestion that Morris Jr.'s request is irrelevant or meaningless.On the contrary, it is consistent with the traditional teachings acknowledged by Mr. Bartleman andMr. Smith. At a minimum, it confirms the proposition advanced by Ms. Kennedy and Mr. Dewhirstthat notice is traditionally required even when outsiders have kinship ties to the host nation.

195 Moreover, it is clear Morris Jr.'s request was not based on any implicit permission grantedthrough his kinship connections with the Cowichan. In my opinion, he was aware that he wasentering Ditidaht traditional territory and was seeking permission from that band to do so. I acceptthe Crown's point that it is not credible that a knowledgeable hunter such as Morris Jr. would havebeen unaware of an unfettered right to hunt in an area the defendants have argued is the only placeon southern Vancouver Island to obtain elk and so sought out permission. If he truly believed hehad an absolute right to hunt at Cowichan Lake based on kinship reciprocity with the Cowichan, hewould have exercised it without first seeking permission of the host First Nation.

196 Morris Jr.'s actions also undermine the defence suggestion that participation or attendance inBig House activities cloaks non-Cowichan persons with implied consent to hunt in Cowichanterritory, removing any necessity for these hunters to first obtain permission from the host band.

197 It is also inconsistent with the evidence of the Aboriginal deponents who acknowledgedpermission, or at the least notice, was a traditional requirement out of respect for the host band.

198 I agree with the Crown when it says "there is nothing in the evidence that would suggestCowichan Aboriginal rights can be implicitly transmitted through Bighouse activities of anotherseparate first nation band." It is illogical to conclude the Cowichan have somehow surrendered ortransferred the management of resources in their traditional territories to outside bands through BigHouse activities.

199 I am therefore satisfied, based on the totality of the evidence, that it is a traditional practicefor any non-resident hunter to seek permission or alternatively to provide notice to the chief,headman or an elder, regardless of any right to enter that territory to hunt based on kinshipreciprocity. The defendants neither sought permission nor provided notice to the Cowichan, evenassuming they established the area was Cowichan traditional territory.

200 Furthermore, as Cowichan Lake is an acknowledged part of Ditidaht traditional territory, thedefendants were required to seek the permission of or notify the Ditidaht. In fact, even Dr.Boxberger agreed that Coast Salish persons entering onto Ditidaht territory would be expected tocomply with Ditidaht protocols. As noted above, I am satisfied that Morris Jr.'s request in respect ofthe first hunt is evidence that he was aware of this requirement. However, Morris Jr. violated

Ditidaht protocols when he took an additional elk in the first hunt and did not request permission forsubsequent hunts. As requiring notice or permission is a form of resource stewardship, exceedingthe permission granted constitutes a departure from the Aboriginal custom of protection of theresource which, as stated by the court in Shipman, would "negative any consent that may have beengranted."

201 Moreover, it should be emphasized that no permission from the Ditidaht could assist thedefendants' claim of a right to hunt at Cowichan Lake pursuant to kinship reciprocity. The Ditidahtare not a Coast Salish people and no practice of kinship reciprocity is claimed between thedefendants and the Ditidaht.

202 Thus, I am satisfied the defendants' hunts were not conducted in accordance with traditionalpractices respecting permission. For this reason as well, the hunting would not be protected by anyalleged treaty right even if such a right had been established.

Prima Facie Infringement of a Treaty Right

Legal Principles

203 Again, for the sake of completeness, I turn now to the question of whether, assuming thedefendants had a treaty right to hunt pursuant to kinship reciprocity in the Cowichan Lake area, andfurther assuming the defendants had hunted in a manner consistent with the scope of this treatyright, they have established on a balance of probabilities a prima facie infringement of their right. Ifa prima facie infringement is found, then based on Morris, there could be no justification andconvictions could not be entered in respect of the counts the Crown has proven beyond a reasonabledoubt.

204 The Supreme Court of Canada reviewed the test for determining whether there has been aprima facie infringement at paras. 47-53 of Morris:

47 Where, as in this case, non-commercial rights are in issue, a distinction mustbe drawn between insignificant interference with the exercise of the treaty rightand prima facie infringement of the right.

...

50 Insignificant interference with a treaty right will not engage the protectionafforded by s. 88 of the Indian Act. This approach is supported both by Côté andby R. v. Nikal, [1996] 1 S.C.R. 1013, where Cory J. rejected the idea that"anything which affects or interferes with the exercise of those rights, no matterhow insignificant, constitutes a prima facie infringement" (para. 91 (emphasis

added)). Therefore, provincial laws or regulations that place a modest burden ona person exercising a treaty right or that interfere in an insignificant way with theexercise of that right do not infringe the right.

51 A prima facie infringement, however, will trigger the s. 88 treaty rightprotection. In determining what constitutes a prima facie infringement of a treatyright, it is helpful to consider the Court's jurisprudence on this point. In R. v.Sparrow, [1990] 1 S.C.R. 1075, at p. 1112, Dickson C.J. and La Forest J. listedthree questions that may assist in this determination:

First, is the limitation unreasonable? Second, does the regulation imposeundue hardship? Third, does the regulation deny to the holders of the righttheir preferred means of exercising that right?

52 As Lamer C.J. pointed out in R. v. Gladstone, [1996] 2 S.C.R. 723, careshould be taken, in considering these questions, not to import an element ofjustification when attempting to identify an infringement. He stated thefollowing, at para. 43:

The Sparrow test for infringement might seem, at first glance, to beinternally contradictory. On the one hand, the test states that the appellantsneed simply show that there has been a prima facie interference with theirrights in order to demonstrate that those rights have been infringed,suggesting thereby that any meaningful diminution of the appellants' rightswill constitute an infringement for the purpose of this analysis. On theother hand, the questions the test directs courts to answer in determiningwhether an infringement has taken place incorporate ideas such asunreasonableness and "undue" hardship, ideas which suggest thatsomething more than meaningful diminution is required to demonstrateinfringement. This internal contradiction is, however, more apparent thanreal. The questions asked by the Court in Sparrow do not define theconcept of prima facie infringement; they only point to factors which willindicate that such an infringement has taken place. Simply because one ofthose questions is answered in the negative will not prohibit a finding by acourt that a prima facie infringement has taken place; it will just be onefactor for a court to consider in its determination of whether there has beena prima facie infringement.

53 Essentially, therefore, a prima facie infringement requires a "meaningfuldiminution" of a treaty right. This includes anything but an insignificantinterference with that right. If provincial laws or regulations interfereinsignificantly with the exercise of treaty rights, they will not be found toinfringe them and can apply ex proprio vigore or by incorporation under s. 88.

205 To summarize, the questions to be asked in order to determine whether there has been aprima facie infringement of a treaty right are:

1) is the limitation unreasonable?2) does the regulation impose undue hardship?3) does the regulation deny to the holders of the right their preferred means of

exercising that right?

206 Justice Garson recently did a thorough review of the Sparrow questions in Ahousaht IndianBand, a case discussed above in the context of a species specific treaty right. In discussing whethera limitation is unreasonable, Justice Garson found at paras. 782-85:

[782] The ... question to be addressed here is notwhether the impugned legislation is unreasonable, but

whether the limitation it creates is an unreasonableinfringement: Seward, at para. 46. ...

[783] Sampson provides another illustration. ... In concluding that the prohibitionagainst fishing by net at that location was not unreasonable, the Court noted thatwhile fishing by trolling would not have been productive because chum salmondo not readily take a lure, a supply of other chum salmon would have beenavailable to the appellants from the surplus stocks at other nearby rivers or thehatchery near Chilliwack. Further, had the appellants applied for and obtained anIndian food fish permit for Ladysmith Harbour, they would have been entitled tocatch four coho salmon per day by trolling throughout the year.

...

[785] In contrast to the situation described in Sampson, it is not open to theplaintiffs to fish in other locations nearby. They have sought DFO approval formeasures such as split licences but have not had their proposals approved. I findthat the regulatory regime imposes an unreasonable limitation on the exercise ofthe plaintiffs' aboriginal rights.

207 Justice Slatter in Lefthand found at para. 115 that if a regulation was unscientific or

overbroad it was unreasonable. However, at para. 118 he then found:

[118] The final portion of the test is to see what effect the regulations have, at apractical level, on the Aboriginal right to hunt and fish for food. This overlapswith the "reasonableness" part of the test. ... No evidence was produced to showthat the regulations affected the rights of Lefthand and Eagle Child to feedthemselves and their families in any practical way (supra, paras. 10, 14). Therewas no evidence that hunting with bait was of any meaningful significance toLefthand, or even that fish were an essential part of his diet. ... There was noevidence that the right to gather food was interfered with by the regulations toany material extent.

208 With respect to the second question concerning undue hardship, Justice Garson in AhousahtIndian Band noted at para. 778:

[778] "Undue hardship" implies more than mere inconvenience: Nikal, at para.100. In that decision, Cory J. contrasted a requirement for a licence that wasfreely and readily available with one where a licence was accessible only at greatinconvenience or cost. The former did not constitute an undue hardship; the lattermight well.

209 I also considered undue hardship in the case of R. v. Seward, [2001] 4 C.N.L.R. 274, 53W.C.B. (2d) 470 (B.C. Prov. Ct.) [cited to C.N.L.R.], at para. 25:

25 ... In this particular case the authorities once again are clear. The issue here iswhether the community as a whole has suffered an undue hardship by theintroduction of these regulations closing Nanaimo River Estuary to harvesting. Itis clearly not an issue surrounding inconvenience to individual members. In thisparticular case I accept the evidence of all of the defendants with respect to thefact that there is no question that in these circumstances it is more difficult to getto other areas that are open for the harvesting of shellfish ... Clearly their abilityto finance transportation to Gabriola Island and other areas is not an insignificantmatter, but notwithstanding that after careful reflection on this particular issue itis clear that for a considerable period of time Nanaimo First Nation bandmembers are able to harvest relatively nearby.

210 Similarly, in Lefthand, Justice Conrad, concurring in the result, found at para. 153:

[153] ... Given the lack of evidence on how the impugned variation ordersimpacted Lefthand and Eagle Child, and in light of the fact that there were, inboth of these cases, numerous other lakes and rivers open for fishing at the timeof the respective offences, I am not satisfied that more than a modest burden hasbeen placed on the rights of these claimants.

She continued at paras. 178:

[178] In my view, the mere existence of a closed season or prohibition on harveston a particular body of water is insufficient to show that a prima facieinfringement has occurred. Neither Treaty No. 7 nor the NRTA guarantees a rightto fish in every stream at all times, and I agree with my colleagues that it is theactivity of fishing and not the geographical site which is protected. Thus, theburden of demonstrating that a prima facie infringement has occurred is not metby simply showing that the claimant has been prevented from fishing for food ata particular location. This does not mean, however, that the onus on the rightsclaimant is a large one, nor that he or she must testify. ... This may involveshowing, for example, that the restriction or closure is occurring on the only bodyof water that is reasonably accessible to the claimant, or that fish are notavailable in other lakes or streams of close proximity. ... [Emphasis in original.]

211 However, in R. v. Catarat, 1999 SKQB 28, [1999] 4 C.N.L.R. 139, at para 71, the courtfound that "being deprived of that dependable hunting location was an undue hardship." In Catarat,with only a weekend to hunt and the expense of having to fly to a hunting site, it was important thatthe accused be assured of a good hunt. While the Saskatchewan Court of Appeal overturned thedecision, 2001 SKCA 50, [2001] 2 C.N.L.R. 158, it did not consider the findings relating to primafacie infringement.

212 Regarding the final question of preferred means, in Ahousaht Indian Band, Justice Garsonwrote at paras. 765-68:

[765] Few authorities specifically address what is meant by "preferred means" inthe context of the infringement analysis. Sampson is one. ... On the question ofwhether the prohibition on fishing by net interfered with the appellants' preferredmeans of exercising the aboriginal right, the Court referred to evidence that untilrecent years, the Chemainus Band had caught salmon in the Ladysmith Harbourarea through use of weirs, by clubbing, hooking or gaffing, and by means of agill net. These, the Court held, were the Band's preferred means of fishing. ...

[766] The appellants in R. v. Seward, 1999 BCCA 163, 66 B.C.L.R. (3d) 49, hadan aboriginal right to hunt deer for sustenance and ceremony. The appellants hadbeen convicted of hunting deer with a firearm during prohibited hours (at night)contrary to the Wildlife Act, S.B.C. 1982, c. 57. At issue was whether legislationwhich prohibited one method of hunting was a prima facie breach of the broaderright to hunt. The trial judge had concluded that the appellants were denied theirpreferred means of exercising their right because they were deprived of a methodwhich was more convenient to them. [The accused testified he liked to hunt at

night because it was less time consuming since deer were scarce and it was easierto hunt them at night.] Ryan J.A., for the Court, explained:

[39] The Supreme Court justice held that the trial judge misinterpreted themeaning of "preferred means". The Supreme Court justice held that "Thedefinition of 'preferred' does not ... incorporate elements such as what therespondents chose to do because of the availability of a ride, or that theycould kill deer faster." He said (at para. 71):

"Preferred" must be considered in the cultural context of the aboriginalright to hunt to which the Penelakuts were entitled. There is academicspeculation that the Penelakuts might have followed the traditions of othercoastal tribes. However, the evidence does not support any conclusion thatnight hunting was the Penelakuts preferred means of exercising the right tohunt. The most that can be taken from the evidence is, as noted by the trialjudge, that night hunting with lights was not "precluded" as being a part ofthe Penelakut culture.

[40] On this appeal, the appellants accepted that the Supreme Court justicecorrectly identified the error of the trial judge in defining "preferredmeans" as an individual choice. The appellants accepted that "preferredmeans" are established at the community level (R. v. Sampson (1995), 67B.C.A.C. 180 at p. 194). The appellants submitted that the Supreme Courtjustice was wrong however, in the meaning he gave to the phrase. Theappellants submitted that he erred in looking only to the methods ofhunting which existed at the time of contact rather than the customs andpractices of the Penelekut people as they have evolved over time.

[41] In my view the Supreme Court justice did not err in examining themethods the Penelekut used for hunting at the time of contact. In thepassage I have quoted above the Supreme Court justice was simplypointing out that the appellants had not established that night hunting wasever a "preferred means". The appellants are right when they say thattraditions evolve over time and that it must be present day practices thatare examined. The point here is that the evidence established Penelekuthunters were known to hunt at night on occasion but that such activity hadnever reached the level of a preferred means.

...

[768] It follows from these authorities that "preferred means" connotes more thanthe literal meaning of those words. Rather, it refers to the aboriginal community'spreferred means of exercising the particular aboriginal right in question, which inturn is determined by reference to the ancestral practices, customs or traditionsintegral to the distinctive culture of the claimant's pre-contact society as theyhave evolved.


Of course, in the case of treaty rights, the Aboriginal community's preferred means would bedetermined by reference to the traditions that existed at the time of signing.

213 In assessing the Court of Appeal's decision in R. v. Seward, 1999 BCCA 163, [1999] 3C.N.L.R. 299 with respect to the issue of "preferred means", in my later Seward decision, I found atpara. 30, "In my opinion our Court of Appeal in Seward clearly concludes it is the manner ofexercising the right, be it hunting, fishing, or harvesting shellfish which is the issue, not where thespecific activity is undertaken."

Parties' Positions

214 The defence argues that the complete prohibition against hunting elk in the Cowichan Lakearea clearly constitutes more than an insignificant interference with their treaty right to hunt. It saysa complete prohibition is unreasonable. The defence further argues that the regulations create anundue hardship and deny them their preferred means of hunting, which was to hunt elk at CowichanLake. As mentioned previously, the defence notes that elk offer more meat per animal than do deer.They are easier to hunt because of their herding instincts and their vulnerability at night. Theevidence also establishes that the elk at Cowichan Lake graze in an open area near a road. As aresult, it is almost effortless to harvest a significant number of animals within a short time. Huntingdeer requires more time and effort. The defence quite openly acknowledges that it is theconvenience and immediate results the defendants value.

215 The Crown argues the legislation in question has resulted in no prima facie infringementbecause, at best, there was only a minimal impact on the treaty right to hunt, such that there was no"meaningful diminution of the treaty right." The Crown emphasizes that the defendants could haveexercised their treaty right to hunt in numerous other areas and procured an adequate amount offood.

Analysis

Is the Limitation Unreasonable?

216 For the reasons I have already expressed with respect to the issue of conservation, I amsatisfied the complete ban on elk hunting at Cowichan Lake is unreasonable as it is overbroad: someelk could be hunted at Shaw Creek without endangering the herd at that location. Moreover, theregulation actually prohibits all hunting and shooting in that area. There was no evidence that such awide-reaching ban was necessary to protect the elk or that there were conservation concerns withother animals in the area, such as deer. There also was no evidence that the absolute prohibition onshooting or hunting was for safety purposes.

217 As a result of finding the scope of the regulations overbroad, there would have been anunreasonable infringement and a meaningful diminution of the treaty right, assuming the manner ofthe hunt had been conducted consistently with traditional practice. In the event that this finding isdeemed incorrect, I will also consider whether the defendants have established undue hardship orthat they were denied a preferred means of exercising their rights.

Undue Hardship and Preferred Means

218 The defendants did not testify with respect to any of these issues. There is no requirementthat they do so. However, their general argument that hunting elk is more convenient and easierthan hunting other animals cannot support a finding of a prima facie infringement based on unduehardship. As noted in Nikal, undue hardship is more than mere inconvenience.

219 The defendants and other members of their bands have hunted other game, such as the55,000 deer on Vancouver Island on which there are no limits in areas open to hunting. Accordingto the evidence, deer are abundant and easy to find. A capable hunter could harvest two or three aday. In this day and age, with all of the modern conveniences available to hunters, the hunting ofdeer instead of elk is a "modest burden" at best. The community would also have access to waterfowl, game birds and bear. As in Lefthand, where the court emphasized that the right to hunt meansthat food will always be available, not that every species can be harvested at all times, there is noevidence in this case that the defendants' general right to hunt was significantly interfered with bythe regulations.

220 Furthermore, the evidence of the Aboriginal witnesses does not establish that the loss of elkmeat would be detrimental to their way of life. Elmer George testified the "traditional foods" of hispeople, the Songhees, were "clams, salmon, deer, ducks and elk." He agreed the Songhees weretraditionally a fishing people, with salmon one of the "main staples." He said that the hunters wouldget the "odd deer" or the "odd elk".

221 There is little evidence that elk was used for ceremonial purposes or that events at the BigHouse were dependent upon the use of elk. Norman George and Angus Smith both testified that BigHouse activities have proceeded in the absence of meat. Mr. Smith said that different types of foods,such as fish, shellfish and deer in addition to elk were provided for Big House participants andguests. Elmer George testified that in the past, Morris Jr. brought deer to the Big House. Inexplaining the role of elk at the Big House, Angus Smith testified:

Q Is there a reason why elk is a meat that is used in the Big House when there's a lot ofpeople?

A A reason?

Q Yes. Is there. . .

A No. It -- that is just like -- any -- anything down that you -- you can feed the people. Indianway.

Q And was elk -- and you said this is the Indian way. What is the Indian way of feedingpeople?

A Most people of different tribes will ask for that, for a certain kind of food you have. That's .. .

Q Okay. And when you say "Ask for that," ask for what? Ask for what? Sorry? I wasn't quiteclear. What would the people ask for?

A Well, they ask for either -- either dried salmon, meat, deer meat, or elk meat.

222 The undue hardship found in Catarat from the deprivation of a particular location is clearlydistinguishable. There the accused had a limited time in which to hunt and had to travel at greatexpense to a hunting location. The defendants in this case would not be deprived of a good hunt ifthey had to hunt in an alternative location. Nor is there any evidence that these defendants had timeconstraints or that going to another location would be prohibitively expensive for the band at large.

223 Further, I am not satisfied that hunting elk in a particular location can properly becharacterized as a preferred means. I agree with the Crown that a "means" is a physical method ormanner of hunting, such as hunting at night or with a particular weapon. As mentioned in Lefthandand in my decision in Seward, it is not a particular geographical site that is protected by a treatyright.

224 Given the totality of the circumstances, I am satisfied that while the regulation has resulted insome inconvenience and necessitates a more strenuous and time-consuming hunt, the evidence hasnot established undue hardship or the denial of a preferred means of hunting. Therefore, because Ihave found the regulation has not created undue hardship or interfered with the defendants'preferred means of hunting, had I not concluded that the limitation was unreasonable because someelk could be taken, there would be no prima facie infringement.

Aboriginal Right

Framework

225 The framework to be followed for an Aboriginal right defence is quite similar to that for atreaty right defence. First, the defendants must establish on a balance of probabilities that they havean Aboriginal right to engage in the impugned activity. Second, the Crown bears the onus toestablish that the activity in question is subject to an internal limit and that the defendants haveengaged in conduct which triggers this internal limit. Where such a limit has been triggered, theWildlife Act is not affected and it is not necessary to determine whether the regulation prima facieinfringes the Aboriginal right. However, if an internal limit has not been triggered, I must determinewhether the regulation has resulted in a meaningful diminution of the Aboriginal right, such thatthere is a prima facie infringement. However, unlike in the context of treaty rights, if the defendantsestablish a prima facie infringement of the Aboriginal right, the Crown may provide a justification.

Alleged Aboriginal Right

226 As mentioned at the outset, the defendants argued that if they failed to establish a treaty right,then, in the alternative, they submit they have an Aboriginal right to hunt elk at Cowichan Lake.Morris Jr., George and Sam argue this right pursuant to kinship reciprocity, whereas Edwardsclaims the Cowichan Tribes have an Aboriginal right to hunt in that area so as a member of theCowichan, he can hunt there without relying on kinship reciprocity.

Existence of an Aboriginal Right

Legal Principles

227 The Supreme Court of Canada outlined the test to be used in determining whether aparticular activity is protected as an Aboriginal right under s. 35(1) in Van der Peet, [1996] 2 S.C.R.507, [1996] 4 C.N.L.R. 177 [Van der Peet cited to S.C.R.]. At para. 33, Chief Justice Lamerexplained that "aboriginal rights arise from the existence of distinctive Aboriginal communitiesoccupying 'the land as their forefathers had done for centuries'". At para. 46, he explained the test inmore detail:

46. In light of the suggestion of Sparrow, supra, and the purposes underlying s.35(1), the following test should be used to identify whether an applicant hasestablished an aboriginal right protected by s. 35(1): in order to be an aboriginalright an activity must be an element of a practice, custom or tradition integral tothe distinctive culture of the aboriginal group claiming the right.

228 Chief Justice Lamer continued at paras. 55-59 by clarifying what he meant by "integral to thedistinctive culture":

55. To satisfy the integral to a distinctive culture test the aboriginal claimant must domore than demonstrate that a practice, custom or tradition was an aspect of, ortook place in, the aboriginal society of which he or she is a part. The claimantmust demonstrate that the practice, custom or tradition was a central andsignificant part of the society's distinctive culture. He or she must demonstrate, inother words, that the practice, custom or tradition was one of the things whichmade the culture of the society distinctive -- that it was one of the things thattruly made the society what it was.

56. ... The court cannot look at those aspects of the aboriginal society that are true ofevery human society (e.g., eating to survive), nor can it look at those aspects ofthe aboriginal society that are only incidental or occasional to that society; thecourt must look instead to the defining and central attributes of the aboriginalsociety in question. ...

...

58. As was noted earlier, Lambert J.A. erred when he used the significance of apractice, custom or tradition as a means of identifying what the practice, customor tradition is; however, he was correct to recognize that the significance of thepractice, custom or tradition is important. ... [I]t is a key aspect of the court'sinquiry into whether a practice, custom or tradition has been shown to be anintegral part of the distinctive culture of an aboriginal community. Thesignificance of the practice, custom or tradition will inform a court as to whetheror not that practice, custom or tradition can be said to be truly integral to thedistinctive culture in question.

59. A practical way of thinking about this problem is to ask whether, without thispractice, custom or tradition, the culture in question would be fundamentallyaltered or other than what it is. One must ask, to put the question affirmatively,whether or not a practice, custom or tradition is a defining feature of the culturein question.


229 The claimed right must have been an integral practice prior to contact and current practicesmust have continuity with those pre-contact practices: Van der Peet at paras. 60, 64.

230 As noted by the Court in Côté at paras. 38-39, while a defining tradition need not be limitedto those "which represent incidents of a continuous and historical occupation of a specific tract ofland", an Aboriginal right "will frequently be limited to a specific territory or location, dependingon the actual pattern of exercise of such an activity prior to contact." Thus, "an aboriginal right will

often be defined in site-specific terms, with the result that it can only be exercised upon a specifictract of land."

231 In discussing site specificity in R. v. Adams, [1996] 3 S.C.R. 101, [1996] 4 C.N.L.R. 1[Adams cited to S.C.R.], at para. 30, Chief Justice Lamer wrote:

30 The recognition that aboriginal title is simply one manifestation of thedoctrine of aboriginal rights should not, however, create the impression that thefact that some aboriginal rights are linked to land use or occupation isunimportant. Even where an aboriginal right exists on a tract of land to which theaboriginal people in question do not have title, that right may well be sitespecific, with the result that it can be exercised only upon that specific tract ofland. For example, if an aboriginal people demonstrates that hunting on a specifictract of land was an integral part of their distinctive culture then, even if the rightexists apart from title to that tract of land, the aboriginal right to hunt isnonetheless defined as, and limited to, the right to hunt on the specific tract ofland. A site-specific hunting or fishing right does not, simply because it isindependent of aboriginal title to the land on which it took place, become anabstract fishing or hunting right exercisable anywhere; it continues to be a rightto hunt or fish on the tract of land in question.


232 As I noted when discussing the legal principles applicable to treaty rights, Aboriginal rightsare also communal pursuant to cases such as Powley and Sappier.

233 With respect to evidence, Chief Justice McLachlin in Mitchell v. M.N.R., 2001 SCC 33,[2001] 1 S.C.R. 911 [Mitchell], explained at para. 39 how evidence should be assessed whenconsidering Aboriginal rights:

39 There is a boundary that must not be crossed between a sensitive applicationand a complete abandonment of the rules of evidence. As Binnie J. observed inthe context of treaty rights, "[g]enerous rules of interpretation should not beconfused with a vague sense of after-the-fact largesse" (R. v. Marshall, [1999] 3S.C.R. 456, at para. 14). In particular, the Van der Peet approach does notoperate to amplify the cogency of evidence adduced in support of an aboriginalclaim. Evidence advanced in support of aboriginal claims, like the evidenceoffered in any case, can run the gamut of cogency from the highly compelling tothe highly dubious. Claims must still be established on the basis of persuasiveevidence demonstrating their validity on the balance of probabilities. Placing"due weight" on the aboriginal perspective, or ensuring its supporting evidencean "equal footing" with more familiar forms of evidence, means precisely whatthese phrases suggest: equal and due treatment. While the evidence presented by

aboriginal claimants should not be undervalued "simply because that evidencedoes not conform precisely with the evidentiary standards that would be appliedin, for example, a private law torts case" (Van der Peet, supra, at para. 68),neither should it be artificially strained to carry more weight than it canreasonably support. If this is an obvious proposition, it must nonetheless bestated.



234 Again, Morris Jr., George, Sam and Edwards did not testify. Counsel, however, in theirwritten argument of December 1, 2009, submitted the defendants "are entitled to hunt onunoccupied land which is a part of the area they historically hunted by reason of kinship ties". Theyfurther argued that "being Songhees", they were "exercising their aboriginal right to hunt as theirforefathers had hunted ... on lands to which they had customary and traditional access ...".Alternatively, they were exercising their right to hunt pursuant to the custom of kinship reciprocitywhich they say was an integral practice to their culture.

235 As I have already determined there is no evidence that the Tsartlip and Songhees had anycustomary and traditional access to Cowichan Lake at the time of the treaty signing, let alonepre-contact, I only need to consider whether defendants Morris Jr., George and Sam haveestablished an Aboriginal right to hunt at Cowichan Lake through kinship reciprocity. As Edwardsis an acknowledged member of the Cowichan Tribes, his defence relies directly on an allegedCowichan Aboriginal right.

236 In order to establish an Aboriginal right to hunt in this location based on kinship reciprocity,it is necessary for the defence to establish on a balance of probabilities that the Cowichan have anAboriginal right to hunt at Cowichan Lake.

Crown's Position

237 The Crown says there can be no Aboriginal right based on kinship reciprocity because anAboriginal right must be collective or communal and the defendants did not establish that kinshipreciprocity was exercised in this manner. The Crown says that the evidence does not show thatkinship reciprocity took place between the Tsartlip, Songhees and Cowichan as groups and that theevidence only shows that Cowichan grandchildren would be allowed to hunt in Cowichan territory.The Crown says that such "kinship groups" are not groups that have been recognized as holdingcollective Aboriginal rights.

238 Furthermore, the Crown says there is insufficient evidence the Songhees and the Tsartlippracticed kinship reciprocity with the Cowichan pre-contact. As a result, the Crown argues thatkinship reciprocity could not have been crucial and integral to the culture of the Tsartlip and

Songhees pre-contact.

239 The Crown also says that, in any event, no rights could be transferred through kinshipreciprocity because the Cowichan Band does not have an Aboriginal right to hunt at CowichanLake.

240 Additionally, the Crown argues that, based on Adams, hunting rights are site specific and anAboriginal right to hunt does not give a person the right to hunt anywhere they choose. Thus, theCrown says that identification of the precise nature of the claim includes the geographic scope ofthe claim.

241 The Crown also once again argues that there is no species-specific Aboriginal right to huntelk in this case.

Analysis

Kinship Reciprocity as a Right

242 I find that the precise nature of the right the defendants are claiming is that they have a rightto hunt in certain areas pursuant to the custom of kinship reciprocity amongst the Coast Salish.Therefore they must establish that this practice was integral to their distinctive culture prior tocontact and that they have continued the custom of kinship reciprocity since contact.

243 In this respect, I note that I have already found that the defendants have established kinshipties between themselves and the Cowichan, although kinship ties between the Tsartlip, Songheesand Cowichan were not proven to have existed pre-contact.

244 I accept, however, that kinship reciprocity was a pre-contact feature of Coast Salish socialnetworking, but was it integral to the Tsartlip, Songhees and Cowichan cultures?

245 Given the evidence, I am of the opinion that at most, kinship reciprocity was "merelyincidental" to the practice of harvesting; I cannot find it was independently significant and asprovided in Van der Peet at para. 70, "Incidental practices, customs and traditions cannot qualify asaboriginal rights through a process of piggybacking on integral practices, customs and traditions."

246 Further, as explained in the analysis of the defendants' treaty rights, there is insufficientevidence to allow the Court to conclude that kinship reciprocity as practiced within Coast Salishcommunities can truly be characterized as a communal right or exercised by the band as acollective. As such, it has not been established as an Aboriginal right in these circumstances.

247 However, in the case that I am wrong and kinship reciprocity is determined to be anAboriginal right, I will proceed to determine whether the defendants have established the necessaryunderlying Cowichan Aboriginal right to hunt at Cowichan Lake. Unless such a right can beestablished, kinship reciprocity with the Cowichan cannot provide a foundation for their own right

to hunt at that location.

Cowichan Right to Hunt at Cowichan Lake

248 The defence bears the onus of establishing a Cowichan right to hunt at Cowichan Lake on abalance of probabilities pursuant to the tests relating to Aboriginal rights as discussed above. Thedefence can only rely on Aboriginal rights held by the Cowichan as it presented no evidence offamilial ties with any other group, such as the Ditidaht, which claims the area to be within itstraditional territory.

249 The defendants argue that the evidence establishes on a balance of probabilities thatCowichan Lake was a shared territory, or as one of their expert witnesses, Dr. Boxberger, describedit, an area of "co-utilization". The defendants argue that based on the evidence this Court shouldconclude that the Cowichan Band has an Aboriginal right to hunt at Cowichan Lake.

250 The defence submits that the presence of Cowichan place names suggests a Cowichanpresence at the Lake. The Crown expert, Mr. Dewhirst, submits this does not support the theory thatthe Cowichan had a predominant presence at the time of contact. In fact, he submits the Ditidahtwere the primary presence at Cowichan Lake, recognizing at the same time that some members ofthe Somenos (now part of the Cowichan Tribes), primarily Chief Kakalatza, frequented the area tohunt deer and elk. This is consistent with the evidence of the Cowichan witnesses Arvid Charlie andAngus Smith.

251 In this particular case, the only reliable evidence as to which First Nations people usedCowichan Lake at the time of signing was Robert Brown's Journal of the Vancouver IslandExploring Expedition from 1864. Mr. Dewhirst emphasized that Brown's journal is a first-handaccount and therefore "highly reliable." Indeed, Dr. Boxberger agreed that Brown's journal "is theonly picture that we have ... [of] what was occurring at Cowichan Lake in 1864." In his entry fromJune 13, 1864, Brown wrote:

A dismantled weed-overgrown village once of considerable extent, exactlyopposite the lodges on the left hand side (descending) was pointed out to us atone time the Autumn fishing village of the Masolomo's [predecessors to theDitidaht] and we were told that this country was divided between them and theSamenaws ... Here then we began to get the first tangible intelligence of thisinland Sacastrian[?] tribes whose name and history had been repeated to us allthe way up the Cowichen Valley each time increasing in credibility until now wehave arrived at the borders of their country ... They may be shortly summarizedas follows, premising that my authorities are Kakalatza the chief of theSomenaws who annually hunt onthe [sic] great Lake, who is intimatelyacquainted with the whole surrounding country, & who has frequently passed thelake & down to Nitinat where [h]is son is at present. His wife is a Masalomo:Lemon who speaks English well and Tomo our hunter who has very frequently

met members of the tribe, and was well acquainted with the chief who died lastwinter.

[Emphasis added.]

252 I accept that the area being referred to is Skutz Falls on the Cowichan River. Mr. Dewhirsttestified that, based on Brown's journal, this marked the boundary of Ditidaht territory and it wouldbe reasonable to assume that the lake was basically controlled by the Ditidaht or, at least, that theDitidaht had a greater and stronger presence at the lake.

253 The defence submits Mr. Dewhirst's opinion should be given no weight because he testifiedthat Brown's journal referenced Skutz Falls as marking the boundary of the Ditidaht's territoryrather than simply being the border, which was the term used by Brown. The defence says Browndid not use the word "border" to refer to a boundary between two parcels of land. The defencepoints out that later, when noting the presence of elk, Brown again uses the word "border". Hewrote elk "inhabit the border of the lake in great herds." As a result, the defence says Brown uses"border" to refer to the perimeters or an area rather than a boundary. The defence says as usedearlier, "border" would mean the outer perimeters or first indications of a particular tribe.

254 While I accept this is a reasonable interpretation when speaking of areas bordering the lake, Ido not accept that it is inappropriate or without a proper foundation to conclude Brown was talkingabout a "boundary" between the Ditidaht and Somenos territories.

255 The defence also submits that Mr. Dewhirst's evidence is faulty because he testified ChiefKakalatza used the term "boundary". I do not agree that this misstatement unduly affects orundermines the reliability or credibility of Mr. Dewhirst's opinion. Presumably someone wouldhave had to tell Brown this was the border. Brown said his authorities were Kakalatza and the othermembers of the expedition. I am satisfied one or all informed Brown when they "arrived at theborders of their country."

256 As mentioned, Brown did experience some contact with members of the Somenos, althoughthere is no doubt that these were a relatively few members. At best, the evidence shows a fewfamilies from the Somenos were in the Cowichan Lake area to hunt on a seasonal basis. Indeed, Mr.Dewhirst testified that Brown recorded "the Somenos only frequent the upper waters of the river"and that only one or two families of the Somenos go to "the great lake" in the autumn.

257 The evidence clearly establishes that prior to the arrival of the Somenos, the Ditidaht FirstNation and their predecessors, the Masoloma, had a presence in or around Cowichan Lake. Mr.Dewhirst and Ms. Vanden Berg agreed, based on Brown's journal that, pursuant to intermarriagewith the Ditidaht or Masoloma, Chief Kakalatza of the Somenos gained access to Cowichan Lake. Ido not accept the evidence of Dr. Boxberger that it was the Ditidaht who gained access to the lakethrough intermarriage. I am satisfied that, based on the historical material, the tribe that occupied,and continues to occupy, the inland of Cowichan Lake was the Ditidaht.

258 Ms. Vanden Berg gave no evidence as to what was occurring at Cowichan Lake at the timeof signing, let alone at contact. The Aboriginal deponents gave no oral history with respect to thepresence of certain persons at Cowichan Lake. They only testified as to kinship reciprocity being arelevant practice when the explorers arrived.

259 Based on historical documentation and expert evidence, I am satisfied the evidenceestablishes that only Kakalatza, his immediate family, and perhaps two Somenos families, hunted atCowichan Lake in the 1860s. As a result, given the totality of the evidence, I am unable to concludethe defendants have established on a balance of probabilities that this minimal presence is sufficientto establish a Cowichan Aboriginal right to hunt at Cowichan Lake.

260 I cannot accept Dr. Boxberger's opinion that it was a shared "co-utilization" area or that"most of the evidence" pointed to the Cowichan being the primary users of the lake, especiallywhen he acknowledged his co-utilization opinion was a "very broad term" and based on his "generalknowledge" about the Coast Salish and regions which did not include the Cowichan or their specificactivities at the lake.

261 Dr. Boxberger's testimony is inconsistent, in my opinion, with the observations of Brown asnoted in his journal. Dr. Boxberger acknowledged Brown wrote that the Ditidaht territory was"going to Skutz Falls" and recorded "they have the largest boundary of any tribe on VancouverIsland".

262 On cross-examination, Dr. Boxberger conceded that it "seems fair" to suggest Kakalatza andhis "immediate family" were going to the lake in small numbers. Moreover, Dr. Boxberger couldnot identify evidence of any additional Somenos presence at Cowichan Lake, aside from Kakalatzaand his immediate family. He further acknowledged that according to Brown there was a Masolomavillage at the lake and Masoloma camps at the lake. This is significantly different from mere dryingsites where Kakalatza and his family members would dry meat. Given this evidence, thepreponderance of the evidence leads me to conclude the area around Cowichan Lake was indeedDitidaht traditional territory.

263 In fact, in referring to what might have occurred at the lake prior to Brown's expedition, Dr.Boxberger testified that in the 1700s, "maybe the Ditidaht were dominant" because "we haveevidence that they were definitely there".

264 I appreciate the fact that Cowichan place names appear on a map drawn by Tomo, who alongwith Kakalatza guided Brown on his expedition and that this suggests a Cowichan presence at thelake. It is understandable that Tomo would use Cowichan names given that he was accompanied byKakalatza, a Somenos person, as opposed to by a Ditidaht person. Furthermore, given Dr.Boxberger's concession that the study by Mr. Rosen in 1985 was only with respect to Cowichannames, and not possible Ditidaht names, coupled with the fact that there is no ability to determinewhen these names were first used, I am unable to conclude this undermines my finding that, basedon Brown's journal -which is according to Dr. Boxberger "the only documentary evidence we

have"- Cowichan Lake was Ditidaht territory and that the Somenos only accessed it though ChiefKakalatza's kinship relationship with his Ditidaht wife. In addition, as Mr. Dewhirst pointed out,Tomo's maps show "Cowichan" camps on the river but not at the lake.

265 Even if a more substantial Cowichan presence at Cowichan Lake had been established, I amfurthermore not satisfied that the necessary continuity requirement has been proven. While theSupreme Court of Canada in Van der Peet at para. 65 found that there is no need for the defendantsto provide evidence of "an unbroken chain of continuity" for "an interruption will not preclude theestablishment of an aboriginal right", I was presented with insufficient evidence to establish, that,apart from Chief Kakalatza, any more than a few Cowichan individuals or families hunted atCowichan Lake post-contact. There is very little evidence as to Cowichan hunting activities at thelake after 1864 apart from some very general and vague statements from the Aboriginal deponents,primarily Angus Smith and Arvid Charlie. Thus, even with the flexibility required in assessingcontinuity, I cannot find that the Cowichan continued to hunt at Cowichan Lake such that it can beconsidered part of their traditional territories. That is not to say that this question of a historic andcontinuing Cowichan Aboriginal rights claim is foreclosed for future cases in which other evidencemay be presented.

266 In sum, the defendants have failed to establish that Cowichan Lake is a traditional huntingterritory of the Cowichan such that the Cowichan Tribes have an Aboriginal right to hunt there.Even when considering post-contact activities, the evidence at best shows sporadic and infrequenthunting by a small number of Cowichan individuals in this area. In the words of JusticeL'Heureux-Dubé in her concurring opinion in Adams at para. 67, there is insufficient evidence thatthe defendants' ancestors hunted "on the tract of land in question in a manner sufficiently significantand fundamental to their culture and social organization for a substantial and continuous period oftime."

267 Given this conclusion, it follows that Edwards has not established that he had an Aboriginalright to hunt at Cowichan Lake. For the same reasons, the remaining defendants are unable to relyon any alleged Aboriginal right of kinship reciprocity with the Cowichan as the basis for their ownAboriginal right to hunt at that location.

A Species Specific Right

268 I have already considered the evidence that has been led with respect to the allegedsignificance of elk in the defendants' culture when discussing whether the absolute prohibition onhunting elk resulted in an undue hardship to the defendants. For those reasons, I am not satisfied thedefendants have established an Aboriginal right to specifically hunt elk.

269 Additionally, if the defendants wish to rely on a species-specific right, or in other words, ageneral right to hunt elk, there must be sufficient evidence that this was integral to their distinctiveculture. Again, as stated in Van der Peet, the significance of something is a key aspect of whether apractice is integral to the distinctive culture.

270 Similarly, in Sappier, as referred to above, the Court stated at para. 21:

... Aboriginal rights are founded upon practices, customs, or traditions whichwere integral to the distinctive pre-contact culture of an aboriginal people. Theyare not generally founded upon the importance of a particular resource. In fact,an aboriginal right cannot be characterized as a right to a particular resourcebecause to do so would be to treat it as akin to a common law property right.

271 On this point, the comments of the Supreme Court of Canada in R. v. N.T.C. Smokehouse,[1996] 2 S.C.R. 672, 137 D.L.R. (4th) 528 [cited to S.C.R.], are helpful. There, the Court concludedat para. 26 that, while potlatches or other ceremonial occasions may well be integral to a particularAboriginal culture and recognized as an Aboriginal right,

...the exchange of fish incidental to these occasions is not, itself, a sufficientlycentral, significant or defining feature of these societies so as to be recognized asan aboriginal right under s. 35(1).

272 I agree with the Crown's submission that the consumption of elk meat is incidental to BigHouse activities and is not itself a "defining feature" of the defendants' culture.

273 Moreover, as Justice Bastarache said in Sappier at para. 41, "courts should be cautious inconsidering whether the particular Aboriginal culture would have been fundamentally altered hadthe gathering activity in question not been pursued."

274 As I have already discussed, the evidence has clearly established that elk was only one partof the traditional diet of the Cowichan, Tsartlip and Songhees and was not a requirement for purelyceremonial purposes. While I am satisfied that Kakalatza and a small number of predecessors of thepresent day Cowichan did hunt elk from time to time at the time of contact, I cannot find on theevidence that elk hunting was something that "truly made the society what it was" (Van der Peet,para. 55).

275 Given the totality of the evidence, I am satisfied the hunting of elk specifically was onlyincidental to hunting for food, ceremonial and social purposes and as such is not a protectedAboriginal right of the Cowichan, Tsartlip, or Songhees.

276 The evidence does not establish these First Nation cultures would have been "fundamentallyaltered" without access to elk meat. As a result, the defendants have failed to establish a separateAboriginal right to specifically hunt elk.

277 Moreover, even if there was a species specific right, it would not necessarily give thedefendants access to any other place where elk might be located. As noted in Adams, and referred toabove, "Even where an aboriginal right exists on a tract of land ... that right may well be sitespecific, with the result that it can be exercised only upon that specific tract of land." In Sappier, at

para. 50, the Court noted that a site-specific requirement had been imposed on the Aboriginalhunting and fishing rights recognized in Adams, Côté, Mitchell, and Powley. The Court stated atpara. 51 that a site-specific requirement is appropriate in relation to asserted hunting and fishingrights because the "characterization of the claimed right ... imports a necessary geographicalelement."

278 As a result, even if the defendants had established an Aboriginal right to hunt elkspecifically, I find that such a right could not permit them to hunt at Cowichan Lake as they havenot established site-specific Aboriginal rights at that location.

Internal Limit on an Aboriginal Right

279 Internal limits are not restricted to treaty rights. At para. 93 in Morris, the dissent noted that"[m]any aboriginal and treaty rights are subject to internal limits."

280 As a result, if the defendants had established an Aboriginal right to hunt at Cowichan Lake,the Crown would be able to argue that their right to hunt was subject to the internal limit ofconservation.

281 I agree completely with the observation of Justice Slatter in Lefthand, where at para. 77, hefound that conservation was an internal limit on an Aboriginal right: "In recognition of the fact thathunting rights are communal, multi-generational rights, they are implicitly subject to lawsrespecting conservation". As quoted above in the context of treaty analysis, the court stated:

At the very least this means hunting rights cannot be exercised in a way that (a)destroys habitat (b) causes extinction or extirpation of a species, or (c) damagesthe breeding stock or the ability of a species to sustain itself. The significance ofthese implied limitations is that government regulations on these topics are notinfringements of the right at all; they are implied limitations inherent in therights. While Morris shows that such regulations cannot be overbroad, they donot have to be "justified" as if they are breaches of the rights.

282 For the same reasons I found that the manner in which the defendants conducted the hunts inthis case breached the traditional practices of their ancestors and exceeded the scope of any allegedtreaty right, I find the hunting of pregnant cows and a calf at these locations breached the internallimit respecting conservation as it pertains to any traditional Aboriginal right to hunt.

283 In addition, as I have already noted, the defendants did not hunt in a manner consistent withthe practices and protocols required to gain access to resources through kinship reciprocity. TheCowichan and the Ditidaht both traditionally required notice from non-resident hunters, even if theyare kin, and no permission was requested from the Cowichan. Although permission was requestedon one occasion from the Ditidaht, the Ditidaht are not a Coast Salish people and no practice ofkinship reciprocity is claimed between the defendants and the Ditidaht. Additionally, as mentioned

earlier, the precise permission Morris Jr. obtained from the Ditidaht Chief was negated by hisviolation of the explicit terms of this permission.

284 As I concluded in the treaty analysis, the permission granted was by the Ditidaht and for thetaking of a single elk. It is clear in these circumstances that the defendants exceeded the specificpermission granted and thereby breached traditional protocols. The defendants' failure to observethese protocols, as described in the treaty rights analysis, negatives any Aboriginal right they mayhave had.

Prima Facie Infringement of an Aboriginal Right

285 For the sake of completeness, I will now turn to consider whether the regulation would haveconstituted a prima facie infringement on the defendants' Aboriginal right to hunt at CowichanLake, had such a right been established and been validly exercised. The test for whether there is aprima facie infringement of an Aboriginal right is the same as that for a treaty right. As such, I relyon my earlier findings to conclude that, although the regulation does not cause undue hardship ordeny the defendants their preferred means of hunting, if the defendants had an Aboriginal right tohunt at Cowichan Lake and exercised that right according to traditional protocols and in a mannerthat did not breach the internal limit of conservation, the continuation of the absolute prohibitionwould be unreasonable and, as such, result in a meaningful diminution of that alleged right to hunt.

286 What makes this analysis so problematic is the initial closure was uncontroversial oruncontentious for the simple reason that, in 1968, there were very few elk at Cowichan Lake.Because of good resource management, the elk herd, at least at Shaw Creek, has recovered suchthat, today, some elk must be harvested.

287 Given that some elk could have been legitimately harvested at the time of these hunts, I ampersuaded, as previously mentioned, that the complete prohibition on hunting at Cowichan Lakewas unreasonable and therefore a prima facie infringement.

288 However, unlike a treaty right, the provincial Crown can justify the infringement of anAboriginal right. I will now address this aspect for the first time.

Justification

Legal Principles

289 The Court in Sparrow set out a two-stage analysis for determining whether the Crown is ableto justify government action that infringes on an Aboriginal right. The elements of the justificationanalysis are set out as follows in Sparrow at 1113-1114:

... First, is there a valid legislative objective? Here the court would inquire intowhether the objective of Parliament in authorizing the department to enact

regulations regarding fisheries is valid. The objective of the department in settingout the particular regulations would also be scrutinized. An objective aimed atpreserving s. 35(1) rights by conserving and managing a natural resource, forexample, would be valid. ...

...

If a valid legislative objective is found, the analysis proceeds to the second partof the justification issue. Here, we refer back to the guiding interpretive principlederived from Taylor and Williams and Guerin, supra. That is, the honour of theCrown is at stake in dealings with aboriginal peoples. The special trustrelationship and the responsibility of the government vis-à-vis aboriginals mustbe the first consideration in determining whether the legislation or action inquestion can be justified.

290 Factors which the Court identified in Sparrow as relevant to the second stage of the analysisin assessing whether the Crown's actions were consistent with its fiduciary duty include:

1) Whether the right had been given adequate priority in relation to other rights?2) Whether there had been as little infringement as possible to the Aboriginal right

to affect the desired result?3) Whether the Aboriginal group in question had been consulted with respect to the

conservation measures?

291 Justice Cory in Nikal at para. 110 noted that these last questions incorporate an element ofreasonableness into the test for justification:

It can, I think, properly be inferred that the concept of reasonableness forms anintegral part of the Sparrow test for justification. For example, in these lastquestions reasonableness will be a necessary aspect of the inquiry as tojustification. For instance, when considering whether there has been as littleinfringement as possible, the infringement must be looked at in the context of thesituation presented. So long as the infringement was one which in the context ofthe circumstances presented could reasonably be considered to be as minimal aspossible then it will meet the test. The mere fact that there could possibly beother solutions that might be considered to be a lesser infringement should not, initself, be the basis for automatically finding that there cannot be a justification forthe infringement. So too in the aspects of information and consultation theconcept of reasonableness must come into play. ... So long as every reasonableeffort is made to inform and to consult, such efforts would suffice to meet thejustification requirement. ...The nature of the situation will have to be taken into

account in assessing the conservation measures taken. The greater the urgencyand the graver the situation the more reasonable strict measures may appear.

292 Respecting conservation in particular, the Court in Marshall #2 at para. 29 found:

29 ... Conservation has always been recognized to be a justification of paramountimportance to limit the exercise of treaty and aboriginal rights in the decisions ofthis Court cited in the majority decision of September 17, 1999, includingSparrow, supra, and Badger, supra. ... Conservation, where necessary, mayrequire the complete shutdown of a hunt or a fishery for aboriginal andnon-aboriginal alike.

293 The Supreme Court of British Columbia in considering conservation in Douglas stated atpara. 31:

[31] ... However, in the absence of evidence of mala fides, it is not the role ofcourts to second-guess management decisions that fall within the range of whatare objectively "reasonable and necessary". ...

Analysis: Valid Legislative Objective

294 I am satisfied the legislature had a valid objective in authorizing the Fish and WildlifeBranch of the Ministry of Environment to enact regulations for conservation and managementpurposes. Similarly, the objective of the particular regulation was valid in that it was established forconservation purposes. When the regulation was created, the Ministry had a valid concern about thesurvival and the sustainability of the Cowichan Lake elk herds. Even in 2001, unregulated huntingof elk in the area would have likely led to extinction or extirpation; thus some regulation is required.

295 The defendants argue that there is no valid legislative objective "as the objective is to forcedisparate groups of First Nations to agree with each other when agreement does not exist." Theyclaim the regulation was a political decision made without any compelling legislative purpose andwas made without any criteria. I do not agree. I do not find the initial overall objective of the banwas to coerce First Nations into an agreement that undermines their treaty or Aboriginal rights.

296 Even though in 2001 the regulation no longer reflected what was necessary to sustain the elkherds, I am satisfied the overall legislative objective is reasonable. The fact that some elk couldhave been taken is nevertheless relevant in considering whether there has been as little infringementof the right as possible.

Analysis: Consistency of Regulation with Crown Fiduciary Duty

Priority to Aboriginal Rights

297 The Crown submits that giving priority to Aboriginal rights is a non-issue because no one

has been allowed to hunt elk at Cowichan Lake since 1968. The Crown says the prohibitioncontinues to be necessary because there are insufficient elk to satisfy the requirements of allinterested First Nations.

298 While I am satisfied the Crown has been attempting to have First Nations agree to whatwould be an appropriate harvest for each "interested" band given the limited availability of elk atCowichan Lake, I am not satisfied that this continued absolute prohibition gives priority toAboriginal rights. Even giving due deference to the Crown's conservation and managementdecisions, I do not accept that such a cautious approach was necessary in order to preventunsanctioned hunts which could jeopardize the elk population.

299 As noted in Adams at para. 59, "the right to fish for food, as opposed to the right to fishcommercially, is a right which should be given first priority after conservation concerns are met." Inthis case conservation concerns would be met and 20 elk would be available for Aboriginals to huntfor food. I cannot find, as required by Sparrow at 1119, that the conservation and management plansof the Ministry ensured Aboriginal rights were taken seriously. Even though the Crown may not beable to fully satisfy all interested bands, it could still give priority to the rights of Aboriginals ingeneral by unilaterally allotting the resource to the best of its abilities. As discussed earlier, whileagreement is helpful, it is not a requirement here. I do not believe these findings will undermine theLegislature's ability and responsibility to create and administer conservation and management plansoverall and to enforce a reasonable quota.

300 This is especially so seeing that some elk must now be culled in the Shaw Creek area. TheMinistry could set the number of elk that could be harvested without endangering the viability ofthe resource. It undoubtedly would be a conservative estimate. Any person or band that breaches thespecific allocation would so do at peril of breaching the internal limit of any asserted Aboriginalright. Priority might be given to at least the Ditidaht or Cowichan to allow them to take apredetermined number of elk so as to properly balance Aboriginal priorities with the sustainabilityof this still relatively fragile resource.

As Little Infringement as Possible

301 With respect to whether there has been as little infringement as possible, for the reasonsgiven earlier, I have already concluded on the evidence before me that the regulation as it stands isoverbroad both in its absolute prohibition on hunting elk and the absolute ban on any hunting in thatarea. The conservation objectives at the time the offence were committed could have been met witha less drastic regulation. Regulations such as these must not impair Aboriginal rights more thannecessary to accomplish the objective of conservation.

Consultation

302 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511,establishes that the Crown's duty to consult arises when there is a contemplated decision that might

adversely affect an interested Aboriginal party. Here, the only decision being contemplated isopening a currently prohibited hunting area for a limited harvest. In relation to the currentregulation, this decision would not adversely affect an Aboriginal right.

303 As s. 35 of the Constitution Act, 1982, recognising and affirming existing Aboriginal andtreaty rights, did not exist in 1968 when elk hunting at Cowichan Lake was first prohibited, therewas, at that time, no constitutionally enshrined consultation requirement. As s. 35 of theConstitution Act, 1982 has no retroactive applicability, I am satisfied that there is no basis for thedefence argument that the Crown must consult each year with the interested Aboriginal parties solong as the prohibition remains in place.

304 Further, the Crown has consulted with interested Aboriginal parties in an attempt to allocatethe elk resource. While I find the Crown needed to unilaterally allocate that resource at some point,I cannot find that it failed in its duty to consult if such a duty existed. Despite the Crown notknowing all of the Aboriginal groups who may have a legitimate claim to hunt at Cowichan Lake,the Ministry sent notice letters and general information to all Aboriginal groups on south VancouverIsland, not just the Ditidaht and Cowichan, at least as far back as 1993 according to Mr. Charlie. Itinvited members of these groups to engage in discussions with the Crown regarding allocation.Indeed, a similar process of consultation might be appropriate in allocating the elk resource in thefuture.

305 The evidence strongly suggests the defendants' bands did not want to participate in thediscussions initiated by the Crown because they disbelieved the Ministry's conservation concernsand the Ministry's estimate as to how many elk were at the watershed. However, the refusal by aband to participate in consultation does not mean the Crown has failed to meet its obligation.Although once the Crown discovered the killing of many elk in the winter of 2001/2002 discussionsand consultation stopped, I am satisfied that up to that point, the Crown exhibited wide-ranginggood faith in attempting to balance the competing Aboriginal interests.

Is the Infringement Justified?

306 As emphasized in Sparrow, the factors analyzed above are not an exhaustive list but ratherassist in determining whether a policy which infringes s. 35 rights is nevertheless justified. To bejustified, such a policy must be "sensitive to and respect" the s. 35 constitutional recognition andaffirmation of the rights of Aboriginal peoples. To reiterate the words of Justice Cory in Nikal,"reasonableness forms an integral part" of this analysis.

307 In these circumstances, I find the regulation not to be reasonable in that it extends beyond therequirements of conservation and thus does not prioritize the defendants' right to hunt. Furthermore,the regulation is not reasonable as it does not ensure that limitations necessary for the purpose ofconservation infringe upon the defendants' Aboriginal rights as little as possible. Specifically, theregulation provides for a blanket ban on all hunting and does not make allowances for a limitedentry elk hunt despite the evidence that such a hunt would not endanger the Shaw Creek herd. For

these reasons, the regulation is not consistent with the s. 35 recognition and affirmation of the rightsof Aboriginal peoples and is not justified. Therefore, to the extent that the regulation infringes on s.35 rights, the regulation would be inapplicable to persons properly exercising an Aboriginal right tohunt and acting within the limits of the scope of that right in the affected region.

308 However, as it has not been demonstrated in this case that the defendants had an Aboriginalright to hunt at Cowichan Lake or, even if the defendants had such a right, that the hunting tookplace within the limits of its scope, the inapplicability of the regulation is of no assistance to them.

Sheltering

309 As I have concluded the defendants do not themselves hold a treaty right or Aboriginal rightwhich would allow them to hunt at Cowichan Lake, I will turn finally to consider whether thehunting could have fallen within the scope of Aboriginal rights held by the Cowichan or Ditidahtand therefore be permissible through the concept of "sheltering".

310 In addressing the possible defence of sheltering, I note that although defence counsel alludedto Morris Jr. sheltering under Songhees treaty rights, the defence did not strenuously argue theconcept of sheltering under the Cowichan's rights, nor was this issue even a major submission bythe defence. I address the availability of "sheltering" as a defence in this case primarily because ofthe Crown's submissions on this topic.

311 In its final argument, the Crown says that "sheltering" under the rights of a host First Nationis the only potential defence available in this case. The Crown says sheltering may be a viableoption for members of urbanized First Nations, such as the defendants in this case, whose huntingresources within their own traditional territories are limited.

312 In describing the practice of sheltering, the Crown refers back to the evidence of theSonghees Chief Robert Sam, who acknowledged that even under kinship reciprocity, someresources would be off limits to outside kin. That is, it is not an automatic right. Those persons,however, might have access under the concept of sheltering, if there was community acceptance andpermission or an invitation extended to access the host nation's resources.

313 The Crown says it is only open to the defendants to establish sheltering as an Aboriginalright and that sheltering cannot be a treaty right in the present circumstances. On this point theCrown refers again to Justice Lambert's decision in Bartleman, which stands for the principle thatfor a specific tract of land to fall within a treaty right, there must be evidence that the land waseither ceded territory or land on which the First Nation "had traditionally hunted".

The Elements of Sheltering

314 In considering the concept of sheltering, it is necessary to set out the requirements that boththe host First Nation and a sheltered individual must establish in order for sheltering to provide a

valid defence.

315 First, with regards to the host First Nation, it is clear that a successful sheltering claim relieson that host First Nation being able to establish its underlying claim to the treaty right or traditionalAboriginal right that the outside individual is invited to share.

316 To achieve this, there must be sufficient evidence to establish a historical custom of the hostnation sheltering others at the time of signing with respect to a treaty right or at the time of contactfor an Aboriginal right.

317 In the context of treaty rights, the Ontario Court of Appeal in the companion decisions ofShipman, discussed above, and R. v. Meshake, 2007 ONCA 337, 85 O.R. (3d) 575, interpreted thetreaty rights of the host First Nations as including the concept of sheltering. In Shipman, the courtdetermined that because at the time the Robinson-Superior Treaty was signed, the host First Nation,the Ojibway, had a custom of granting permission to others to share in their resources, the treatyprovision permitting the Aboriginal signatories to hunt "as they had heretofore been in the habit ofdoing" included the right to shelter others.

318 In Meshake the court determined that, based on Ojibway custom at the time of signing,Treaty 3 permitted the Aboriginal signatories to "shelter" an individual who had married into aTreaty 3 community and who had been welcomed and accepted to hunt in that territory.

319 In the context of sheltering as an Aboriginal right, the BC Court of Appeal in R. v. Jack(1995), 131 D.L.R. (4th) 165, [1996] 2 C.N.L.R. 113 (C.A.) [Jack cited to D.L.R.] addressedwhether the host First Nation had established a right to shelter others using the tests applicable toAboriginal rights. In that case, Mr. Jack, a hereditary chief of the Mowachaht people, had invitedrelatives from the Ehattesaht Band to fish with him in Mowachaht territory. The Court of Appealnoted at para. 22 that the parties had agreed at trial that Mr. Jack had an Aboriginal right to extendthis invitation because, as hereditary chief, he possessed "a hereditary compendium of rights, assetsand responsibilities known as his 'hahuuhli'" and as a result "[h]is aboriginal right to fish includedthe right to invite kinsmen to assist him". The Court of Appeal therefore analyzed the central issuein that case, whether provincial fishing restrictions infringed on the appellant's right to fish, fromthe perspective of the Mowachaht's rights.

320 Additionally, because Aboriginal rights and treaty rights are communal in nature, theinvitation extended to the sheltered individual must be established at the level of the community asa whole. As confirmed in Shipman at para. 43, permission to shelter "would typically be grantedthrough the First Nation Chief or others designated by the Chief or First Nation Council." Thisposition is also recognized in the Court of Appeal's decision in Jack which referred to the "rights,assets and responsibilities" held by the hereditary chief.

321 With regards to the individual sheltering under the rights of a host nation, two requirementsare apparent. First, because the sheltered individual is effectively exercising the Aboriginal or treaty

rights of the host First Nation, that sheltered individual must be an Aboriginal within the meaning ofs. 35 of the Constitution Act, 1982. In this regard, the BC Supreme Court held in R. v. Pike (1993),[1994] 1 C.N.L.R. 160, 21 W.C.B. (2d) 309 (B.C.S.C.) [cited to C.N.L.R.], at 165 that the scope ofan Aboriginal right does not permit an Aboriginal person to cloak a non-Native person with thoserights. (See also: R. v. Muise (2000), 227 N.B.R. (2d) 95 at para. 87, 46 W.C.B. (2d) 391 (Q.B.).)

322 Second, the individual sheltering under the rights of a host nation must act within the scopeof the invitation or permission extended. As I have explained earlier in this judgment, departurefrom the consent given by the host nation would conflict with traditional Aboriginal practices andbring the recipient outside the protection of any asserted right.

Analysis

Sheltering as a Treaty Right

323 In light of the foregoing, I agree with the Crown that the defendants cannot claim shelteringas a treaty right in this case, where neither the Cowichan nor the Ditidaht -the two potential hostnations- have concluded treaties with the Crown. Even if a treaty right to be sheltered in theterritory of another First Nation could be established, such a right has not been established in thiscase. As I found in the treaty analysis and in the context of kinship reciprocity, the signatories of theDouglas treaty could not have intended to create treaty rights with uncertain boundaries or whichextended beyond the territory actually used by the First Nation. A treaty right to be sheltered woulddo just that by creating an area of use fluctuating on the basis of Aboriginal rights held by non-partyFirst Nations.

324 Therefore, I am satisfied the defendants have not established a defence of sheltering based ona treaty right.

Sheltering as an Aboriginal Right

325 With regards to sheltering as an Aboriginal right, the defendants first bear the onus toestablish that the Cowichan or Ditidaht have an underlying Aboriginal right to hunt at CowichanLake. In this regard, I note that the evidence has not established that the Cowichan have a right todo so. There has been no argument in this case as to whether the Ditidaht possess such a right. Iacknowledge that evidence to establish such rights might be presented in future cases. Nevertheless,simply for the purpose of considering the sheltering argument, as the only possible defence theCrown says is viable, I will proceed on the assumption the Cowichan and Ditidaht do have anAboriginal right to hunt at Cowichan Lake.

326 Turning to whether the defendants have established that either the Cowichan or the Ditidahtpossess an Aboriginal right to shelter outside individuals, I agree with the Crown when they say it isnot sufficient to simply state, as Mr. Charlie has done, that it is the belief of some that"grandchildren" can access the Cowichan territory without demonstrating that granting such access

is a traditional practice and a defining feature of Cowichan culture.

327 Once again, as with the lack of evidence pertaining to a treaty or an Aboriginal right, theevidence of Arvid Charlie did not disclose any information about the Cowichan or Ditidaht invitingany Songhees, Tsartlip, Nanaimo or indeed any other groups to hunt within their traditional territoryat the time of contact.

328 The evidence is clear from the historical documents and journals that only very few membersfrom the Somenos in addition to the Masoloma or Ditidaht used the lake at the time of contact.There was no evidence of the presence of any other First Nations in the area. As such there isnothing in the historical record or oral history that would allow the Court to conclude there was atraditional custom of the Cowichan and/or the Ditidaht or their predecessors inviting outsiders tohunt at Cowichan Lake, or elsewhere within their traditional territory.

329 In these circumstances, an Aboriginal defence of sheltering is not available to thesedefendants as it has not been established that, for the Cowichan or Ditidaht, "sheltering" was anintegral feature of their distinctive culture prior to European contact.

330 Nevertheless, I agree with the Crown's submission that in the appropriate circumstances andwith the proper evidentiary foundation, sheltering may very well be the process by which anurbanized First Nation might gain access to a host nation's traditional territory and its resources.Indeed, Mr. Bartleman testified in this case that this is exactly how he was able to hunt in his ownoften-cited case. On March 5, 2007, he affirmed that in that case he was "hunting by invitation onHalalt Band area on Westholme, B.C. I was invited by my aunt at the time, Josephine August. Shewas also Chief at the time ...".

331 However, it is critical to emphasize that for sheltering to provide such a solution, thesheltered individuals must not exceed the scope of the permission granted. In this case, even if thedefendants had established a Ditidaht Aboriginal right to shelter them, this could not assist them asthey exceeded the limited permission granted by the Ditidaht. As mentioned above, the requirementof permission is not only a traditional protocol but a method by which the Aboriginal group inwhose territory the relevant resource is located manages that resource to ensure its continuedsurvival. It is a form of stewardship and oversight for the host nation that is in keeping withtraditional Aboriginal belief and practice.

Summary of Findings

332 In light of the evidence presented in this case, the defendants have not been able to establisha defence based on s. 35 of the Constitution Act, 1982 with respect to the charges under the WildlifeAct. The defendants' treaty right claim must fail as they have not established, pursuant to therequirement laid out in Bartleman, that Cowichan Lake is Songhees, Tsartlip or Nanaimo traditionalterritory. The defendants' argument of a treaty right to hunt at Cowichan Lake pursuant to kinshipreciprocity is of no assistance to them because the concept of kinship reciprocity cannot overcome

the requirement that, for land to be considered traditional territory, the defendants' ancestors musthave in fact hunted at the relevant location. The defendants' claim of a species specific right to huntis also of no assistance in this regard.

333 Even if the defendants had been able to establish a treaty right to hunt at Cowichan Lake, thedefendants' treaty claim would not have succeeded as I have found that by not hunting in a mannerconsistent with Aboriginal practices regarding conservation nor with the protocols surrounding thealleged right of kinship reciprocity, the hunting fell outside the scope of the treaty right thedefendants claimed.

334 The defendants' alternative claim of a traditional Aboriginal right must also fail as defendantsMorris Jr., George and Sam have not established that kinship reciprocity as practiced within CoastSalish culture can be considered an Aboriginal right. Even if kinship reciprocity can be consideredan Aboriginal right in this context, Morris Jr., George and Sam's claim based on kinship reciprocityrequires proof of an underlying Cowichan Aboriginal right to hunt at Cowichan Lake, which has notbeen established. Defendant Edwards' claim of an Aboriginal right to hunt at Cowichan Lake basedon his membership in the Cowichan First Nation must therefore also fail. Furthermore, by failing torespect the need for conservation or the traditional protocols associated with kinship reciprocity, thedefendants breached the internal limits which would attach to the Aboriginal right asserted.

335 The final defence available to the defendants, that of sheltering, has not been established asthere has been insufficient evidence to allow me to conclude that, even if an underlying Cowichanor Ditidaht claim to hunt at Cowichan Lake were established, either First Nation possesses anAboriginal right to extend their rights to others through sheltering. Because sheltering relies on aninvitation from the host nation and the defendants received no permission from the Cowichan andbreached the limited permission received from the Ditidaht, sheltering could be of no assistance tothe defendants even if a Cowichan or Ditidaht right to shelter others had been established.

336 As the defendants have not established an Aboriginal defence to their breaches of theWildlife Act, convictions will be entered on those counts the Crown was able to prove beyond areasonable doubt.

337 Finally, it goes without saying that the legitimate interests of provincial regulations aimed atthe conservation and preservation of fragile resources can best be balanced with valid Aboriginalrights where the parties resolve conflicts over limited resources by developing a mutually agreeableframework, such as what has occurred with respect to elk hunting on northern Vancouver Island.When government and First Nations are able to agree to such an understanding, it serves not onlythe interest of First Nations people but also the public-at-large both in the near term and for futuregenerations.

B.D. MacKENZIE PROV. CT. J.

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