6.1 By submission of 21 December 2000, the
author rejects the State party’s observations, arguing
that domestic remedies have been exhausted, for the
Supreme Court’s binding decision in his case
confirmed the extinguishment of his aboriginal
rights.
the form of a videotape containing an interview with
the author and two other members of the
Mississauga First Nations on the importance of
fishing for their identity, culture and way of life. On
12 January 2000 the Committee, acting through its
Special Rapporteur on New Communications,
decided not to accept videotape evidence, with
reference to the Optional Protocol’s provision for a
written procedure only (article 5, paragraph 1, of the
Optional Protocol). By letter dated 7 February 2000,
the author furnished the Committee with a transcript
of the videotaped testimony in question. The
Committee expresses its appreciation for the author's
willingness to assist the Committee by submitting
the transcript.
6.2 The author argues that the current proceedings
before the Federal Court raise different issues and
cannot grant him the remedy he seeks. The current
proceedings concern breach of fiduciary duty, rather
than the restoration of aboriginal harvesting rights,
and seek (in current form) a corresponding
declaration with “a remedy in fulfilment of the
Defendant Crown’s obligation to set aside reserves,
or damages in lieu thereof”. In any event, the Federal
Court is bound to follow the Supreme Court’s
decision to the extent that it held that the aboriginal
rights in question had been extinguished by the
Williams Treaties. The author notes that while the
Federal Court proceedings may allow his community
to acquire additional lands and fair compensation for
the 1923 surrender, they will not restore his
harvesting rights, since the Supreme Court’s
decision has held they were extinguished at that
time.
The State party’s admissibility submission and
author’s comments
5.1 By submission of 28 July 2000, the State
party argues that the communication is inadmissible
for failure to exhaust domestic remedies. The State
party points out that current laws regulate, but do not
prohibit, hunting and fishing activities. The
regulations, dealing with licensing requirements,
catch and hunting limits, and seasonal restrictions,
are intended to advance objectives of conservation,
safety and ethical hunting practices. The author, as
anyone else, is able to exercise his traditional
practices within these confines.
6.3 As to the proceedings to challenge the
abrogation of the CHCAs, the author argues that the
outcome of further proceedings was “clearly
predictable”. The judge stated that he had
“determined that on the factual merits there is no
support for the granting of any declaratory or
injunctive relief”. Referring to the Committee’s
jurisprudence,5 the author notes that the Supreme
Court in his case had already “substantially decided
the same question in issue” and that therefore there
was no need for recourse to further litigation.
Moreover, the Supreme Court had denied his own
application to revisit its decision in his case, which
therefore remained binding on the lower courts.
5.2 The State party observes that the Williams
Treaties First Nations have an action currently
pending in the Federal Court, alleging a breach of
fiduciary duty by the federal and Ontario
governments. They seek, inter alia, a remedy that
would restore their hunting and fishing rights outside
the reserves. The parties have currently stayed this
action by agreement, while negotiations are
continuing.
5.3 The State party further observes that the
Williams Treaties First Nations did not avail
themselves of the possibilities to challenge the
termination of the CHCAs. While the initial action
was dismissed on grounds of procedural defect, the
Court made clear that it was open to them to bring a
fresh application. They did not do so. The State party
notes that, while the author contends that to do so
would have been “pointless”, it has been the
Committee’s constant approach that doubts about the
effectiveness of remedies is not sufficient reason not
to exhaust them.
6.4 To the extent that the State party suggests that
negotiations should be pursued, the author argues
that these are not “remedies” in terms of the
Optional Protocol, and, in any event, that the State
party has not shown they would effectively restore
the harvesting rights. On 16 May 2000, the First
Nations were informed that negotiations would not
resume without the presence of the Ontario
government as a party. Moreover, the Indian Claims
Commission is an advisory body whose
recommendations are not binding upon the federal
government. Additionally, the Commission may
only facilitate certain categories of dispute, and the
federal government has already characterized the
5.4 Thirdly, the State party observes that it would
be open to the Williams Treaties First Nations to
seek the assistance of the independent advisory
Indian Claims Commission in resolving a dispute in
their claims negotiations with the federal
government. This settlement procedure has not been
exercised.
5
Lovelace v. Canada, Case No. 24/1977, Views
adopted on 19 September 1979.
128
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