8.3 As to the State party’s argument that the author
is acting on behalf of third parties, the Committee
noted that the author claimed personally to be a
victim, within the meaning of article 1 of the Optional
Protocol, of an alleged violation of his rights under
the Covenant, by virtue of the Supreme Court’s
decision affirming his conviction for unlawful fishing.
As to the position of further individuals, the
Committee recalled its jurisprudence that there is, in
principle, no objection to a group of individuals, who
claim to be similarly affected, collectively to submit a
communication about alleged breaches of their
rights.9 In the present case, however, to the extent that
the communication could be understood to have been
brought on behalf of other individuals or groups of
individuals, the Committee noted that the author had
provided neither authorization by such persons nor
any arguments to the effect that he would be in the
position to represent before the Committee other
persons without their authorization. Consequently, the
Committee found the communication inadmissible
under article 1 of the Optional Protocol, to the extent
it could be understood to have been submitted on
behalf of other persons than the author personally.
fact that these actions were brought by First Nations
parties rather than the author and that their outcome
would have no bearing on the author’s conviction in
1985 for unlawful fishing, the Committee considered
that insofar as the author might individually benefit
from such a remedy, the remedy was unreasonably
prolonged in relation to him. The Committee was
therefore satisfied that the author, in pursuing his
own case through to the Supreme Court, exhausted
domestic remedies in respect of the claimed
aboriginal rights to fish, which are an integral part of
his culture.
8.6 On 1 April 2003, the Committee therefore
decided that the communication was admissible to the
extent that the author was being deprived, under the
sanction of criminal law, of the ability to exercise,
individually and in community with other members of
his aboriginal community, his aboriginal fishing rights
which are an integral part of his culture.
State party’s merits submission
9.1 By submission of 23 March 2004, the State
party comments on the merits of the communication.
Contesting the author’s claims of violations of
articles 2 (2) and 27 of the Covenant in his case, the
State party submits that the author is able to enjoy,
individually and in community with the other
members of the Hiawatha First Nation, the aspects of
his culture related to fishing.
8.4 Concerning the State party’s arguments that
on-going negotiations might provide an effective
remedy, the Committee referred to its jurisprudence
that remedies that must be exhausted for the
purposes of the Optional Protocol are, primarily,
judicial remedies. Negotiations proceeding on the
basis of, inter alia, extralegal considerations
including political factors cannot generally be
regarded as being of analogous nature to these
remedies. Even if such negotiations were to be
regarded as an additional effective remedy to be
exhausted in specific circumstances,10 the
Committee recalled, with reference to article 50 of
the Covenant, that the State party is responsible, in
terms of the Covenant, for the acts of provincial
authorities as much as federal authorities. In the light
of the absence of a decision, to date, by the
provincial authorities, on whether to accept the First
Nations’ claim for negotiations, the Committee
would in any event regard this remedy as being
unreasonably prolonged. Accordingly, on the current
state of negotiations, the Committee did not, on
either view, regard its competence to consider the
communication excluded by virtue of article 5,
paragraph 2 (b), of the Optional Protocol.
9.2 The State party recalls that in the 1923
Williams Treaty, the author’s First Nation agreed to
give up its aboriginal rights to fish, except for a
treaty right to fish in the reserves set aside for them.
The Ontario Court has held that this treaty right to
fish extends to the waters that are adjacent to the
reserves and the Government has interpreted this to
mean up to 100 yards from shore in waters fronting
the reserve boundaries. In these waters the members
of the Hiawatha First Nation do not have to comply
with Ontario’s normal fishing restrictions, such as
closed seasons and catch limits and have a right to
fish year-round for food, ceremonial and social
purposes. In this context, the State party points out
that neither the author nor the Hiawatha First Nation
depends on fishing for their livelihood. It is said that
the members of the Hiawatha First Nation (of whom
184 members live on the reserve and 232 outside)
have tourism as their main source of income and that
recreational fishing is a significant attraction for
tourists to the area. The fish of Rice Lake, on the
shores of which the Hiawatha First Nation lives, are
said to be among the most abundant in the area.
8.5 The same applied in relation to the argument
that actions are pending in the Federal Court and in
the Ontario Superior Court of Justice. Besides the
9.3 The State party states that in addition the
author can obtain a recreational fishing licence
enabling him to fish in the lakes and rivers of the
Kawartha Lakes region surrounding the Hiawatha
First Nation reserve from May to November. The
9
See Ominayak et al. v. Canada, Case No. 167/1984,
Views adopted on 26 March 1990, at paragraph 32.1.
10
See Jonassen et al. v. Norway, Case No. 942/2000,
Decision adopted on 25 October 2002.
130
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