John Cummins, M.P.
Delta-South Richmond		 News Release

FOR IMMEDIATE RELEASE

DATE: February 6, 1998

BACKGROUNDER # 1

Just what did the Judge say on the 6th?

The validity of the Aboriginal Communal Fishing Licences Regulations and whether they might be used in 1998 was a key finding of the Court on January 26th and the focal point of the Court on February 6th.

Judge Thomas left little doubt he understood and intended his finding that the regulations were invalid to mean: there would be no fishery based on the Aboriginal Communal Fishing Licences Regulations unless his decision were overturned or varied by a higher court.

That is to say Judge Thomas did not understand or intend himself to be expressing a mere opinion unrelated to his decision. He anticipated that his ruling would have consequences.

MINISTER'S RESPONSE:

According to the Minister of Fisheries, the finding of Judge Thomas that "the Aboriginal Communal Fishing Licences Regulations purporting to authorize an aboriginal commercial fishery...have no legal validity and are therefore null and void" is irrelevant:

"I appreciate the views of the judge in this case. However, opinions are opinions. Such opinions are not binding on the superior courts of British Columbia...

It does not suspend or nullify the Aboriginal Communal Fishing Licensing Regulations. In particular, it does not preclude the Department of Fisheries and Oceans from authorizing Aboriginal commercial fishing, including pilot sales arrangements, under the existing regulatory regime."

When the Minister says that a provincial court ruling is not binding on the superior courts of British Columbia, he is not telling us much that we do not already know. The decisions B.C. Supreme Court are not binding on the B.C. Court of Appeal, and in turn are not binding on the Supreme Court of Canada. But that is not the point and Mr. Anderson knows it. Rather the point is this-- provincial court decisions represent the law of British Columbia until overturned or varied by a superior court.

If the Minister is not happy with the Judge's finding that the regulations are now invalid, then he is obligated to go to a higher court. The Judge's findings may not be "binding on the superior courts of British Columbia" but they are binding on the Minister until overturned or varied by the superior courts of British Columbia.

JUDGE BELIEVED HIS FINDING ENDED THE NATIVE FISHERY:

It is clear from the transcript of the proceedings at sentence on February 6th that the Crown was concerned about the possibility of Cummins participating in a fishery protest in 1998. The idea that the Department might ignore his ruling and proceed with a native commercial fishery was a source of some puzzlement to the Judge:

COURT: Can I stop you there and ask you how this particular offence might be repeated? (24:37)

***

COURT: Well I guess what I'm getting at is Mr. Coultish's evidence, that while the Department is reviewing my decision and trying to decide what to do and if I were to suggest that they might go so far as to ignore it, I don't know. I mean I'm just trying to see how if I'm upheld say in a higher court and the aboriginal commercial fishery is in fact invalid, I'm trying to see in what circumstances you might be concerned about a repetition of the offence. That's what I'm getting at. (25:3)

APPEAL TO HIGHER COURT

Judge Thomas believed that he had settled the matter: the Aboriginal Commercial Fishing Licences Regulations authorizing the native-only commercial fishery were invalid. He believed that the government must go to a higher court to have the decision overturned or varied if they wished to proceed with the native commercial fishery:

COURT: I'd like you to develop that because it seems to me, assuming for the moment that I'm right in my decision with regard to the validity of the aboriginal commercial fishery, that the other side of that coin is that Mr. Cummins might well say it was in the public interest for me to bring this into court. (9:42)

***

CROWN: ...Your ruling is beyond dispute... (10:41)

COURT: Well a higher court may not take that view. (10:43)

CROWN: My point is simply, I'm not in any way challenging your ruling. (10:45)

***

COURT: I mean I'm just trying to see how if I'm upheld say in a higher court and the aboriginal commercial fishery is in fact invalid, I'm trying to see in what circumstances you might be concerned about a repetition of the offence. That's what I'm getting at. (25:3)

IGNORE THE DECISION (THE RULE OF LAW):

The Crown, the Defence and the Judge all made reference to the importance of complying with the rule of law:

CROWN: [quoting from another judgement]...and before this court is the future of the rule of law. It is the rule of law which distinguishes a civilized society from anarchy. Everything which we have today and which we cherish in this free and democratic state, we have because of the rule of law. (17:13)

...one law is broken and the breach thereof ignored is but an invitation to ignore further laws and this, if continued, can only result in the break down of the freedom under the laws which we so greatly prize. (18:2)

DEFENCE: ...The rule of law is important. It's critical. It's the foundation of our parliamentary democracy in our society but it involves and must involve a respect for the rule of law [by] government officials because they are not above the law, [they] must follow the law. (33:3)

My friend at the end of her submissions, invited Your Honour to impose conditions prohibiting further protests. But, Your Honour, there will be no further protests assuming of course that the government will comply with the rule of law. (33:22)

There's a presumption and it's often used in a different way but there is a presumption which I think is applicable here and can be applicable here, that the government will comply with the law. (33:28)

It's proper, in my submission, to assume that the government will take heed of the ruling of the Court...(37:8)

That question doesn't arise for Your Honour at this stage because as I say, I don't think it's appropriate to assume the government officials will flout the law and that would deal with what would happen in some future case. (37:29)

Judge Thomas' caution to the Crown that the rule of law applies to the government as well as the ordinary citizen and his reference to the testimony of the Fishery Officer in regard to protests in 1998 indicates his awareness that the government might be intending to ignore his finding that the regulations were invalid rather than going to appeal.

It is, I think, appropriate to note that the rule of law does exist, not just for individuals but also for government. (38:4)

FISHERY REGS INVALID:

The Crown did not dispute the Judge's finding, ruling, or decision that the regulations were invalid. In fact the Crown acknowledged the importance of the Court's finding of invalidity:

CROWN: Your finding has been that, as you've said, the commercial aspect was not valid... (10:1)

Your ruling is beyond dispute... (10:41)

I'm not in any way challenging your ruling. (10:45)

Precisely and I can't over emphasize the fact that even though you found that he is right, it is not a defence to his actions... (21:5)

The Judge referred to his ruling on the invalidity of the regulations on numerous occasions. At one pointed he pondered whether the Department of Fisheries after reviewing his decision on the invalidity of the regulations might be tempted to ignore it or more properly appeal it if they wished to proceed with the native commercial fishery based on the impugned regulations:

COURT: Well I guess what I'm getting at is Mr. Coultish's evidence, that while the Department is reviewing my decision and trying to decide what to do and if I were to suggest that they might go so far as to ignore it, I don't know. I mean I'm just trying to see how if I'm upheld say in a higher court and the aboriginal commercial fishery is in fact invalid, I'm trying to see in what circumstances you might be concerned about a repetition of the offence. That's what I'm getting at. Or are you seeking a more general kind of prohibition order, no protests? (25:4)

DID CROWN MISLEAD THE COURT?:

Fishery Officer Coultish told the court on February 6th that he was unaware of what the Department intended to do in regard to the 1998 native commercial fishery:

DEFENCE: Now as for any risk of these protests occurring again, something the Court may be concerned with, have the D.F.O. determined what they plan to do in the future in 1998 fishery, given that the commercial aspect of the A.F.S. fishery has been found to be unauthorized and invalid? (8:3)

COULTISH: I suspect that there will be talks held. I know that there's been discussions held recently. But as to where the Department plans to go with this, I have no idea. I'm as interested as anybody in this court is, as to where this is going to go. (8:8)

The Judge took note of Fishery Officer Coultish's comment that the department was reviewing his January 26th decision on the validity of the regulations and had yet to decide on how to proceed:

COURT: Well I guess what I'm getting at is Mr. Coultish's evidence, that while the Department is reviewing my decision and trying to decide what to do and if I were to suggest that they might go so far as to ignore it, I don't know. (24:44)

Within minutes, probably not more than an hour after the Fishery Officer's testimony, the Minister issued a statement to the media indicating that the Department would be proceeding with the native commercial fishery under the impugned regulations. The Minister took the position that Judge Thomas did not address the issue of validity in a way that would affect the Aboriginal Ccommunal Fishing Licenses Regulations. The transcript of the proceedings of the Court on February 6th contradicts the Minister's statement.

WAS THE ISSUE OF VALIDITY A FOCUS OF THE COURT?

All parties in the Court addressed the implications of the Judge's finding of invalidity on January 26th.

The Defence thought it wrong to speculate that the Crown might ignore the decision and thus not feel bound by the law:

It's proper, in my submission, to assume that the government will take heed of the ruling of the Court and find some other way, some legitimate way of dealing with the pressure for commercial fishing privileges by these particular groups and that this pilot sales program which as the name implies, is a test program, in any event will not be implemented in the future. And that there will no longer be any reason to protest. (37:14)

...if the Department of Fisheries and Oceans were to completely ignore the ruling of the Court and ignore the imperative of the rule of law, then an interesting question would arise, if there were then further protests as one would could expect that there would be. (37:21)

Interesting question would arise, what is it appropriate to do where government officials deliberately flout the law? ((37:24)

The Crown, a Fishery Officer, and the Judge are quoted at length on this subject elsewhere.

MOTIVE:

The Judge obviously believed that Cummins was seeking to challenge an invalid regulation:

...it seems to me, assuming for the moment that I'm right in my decision with regard to the validity of the aboriginal commercial fishery, that the other side of that coin is that Mr. Cummins might well say it was in the public interest for me to bring this into court. (9:42)

Is there a distinction between someone who breaks the law because they're at odds with government policy such as picketing an abortion clinic, saying the law may be valid but we think it's unjust, we disagree with it. You should change it and until you change it, we're going to picket. As opposed to the situation where Mr. Cummins says, "I want to challenge the validity of this legislative policy and the only way I can do that is to get into court." (10:24))

Would it make a difference or does it make [if] Mr. Cummins were fishing with a the fish and reselling them? Or the evidence in this case, merely to catch them and throw them back so that he could, for want of a better term, get a list on which he could be heard in court. (11:34)

...is Mr. Cummins breaking an established law or is he challenging the legality of ministerial decisions? (20:34)

He therefore finds that Cummins was acting in "good faith" when he engaged in the fishing protest:

It seems to me on the evidence I heard that his motives in seeking to test the validity of the regulations and policies of the Department is a case of good faith rather than bad faith. (38:4)

March 2, 1998

A copy of the complete transcript of proceedings on February 6, 1998 is available on request.

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For more information, please contact:

John Cummins, M.P.
(613) 992-2957