Communication No. 879/1999 Submitted by: George Howard (represented by counsel, Peter Hutchins of Hutchins, Soroka & Dionne) Alleged victim: The author State party: Canada Date of adoption of Views: 26 July 2005 Subject matter: Right of an indigenous group to practice and enjoy its traditional culture 2.2 On 18 January 1985, the author took some fish from a river close to, but not on, his First Nation’s reserve. He was fined after having been summarily convicted in the Ontario Provincial Court for unlawfully fishing out of season. The court rejected arguments of a constitutional right to fish based on the protection in section 35 of the Constitution Act 1982 concerning “existing aboriginal and treaty rights of the aboriginal peoples of Canada”. It held that the author’s First Nations ancestors had surrendered fishing rights in the 1923 treaties and that no such rights subsisted thereafter. On 9 March 1987, the Ontario District Court rejected the author’s appeal. Procedural issues: Non-exhaustion of domestic remedies - Absence of authorization to act “Victim” requirement Substantive issues: Right for indigenous groups to enjoy their own culture Articles of the Covenant: 2, paragraph 2, and 27 Articles of the Optional Protocol: 1; 5, paragraph 2 (b) Finding: No violation 1. The author of the communication, dated 9 October 1998, is Mr. George Howard, born 5 June 1946, a member of the Hiawatha First Nation which is recognized under the law of the State party as an Aboriginal people of Canada. He claims to be a victim of a violation by Canada of his rights under articles 2, paragraph 2, and 27 of the Covenant. He is represented by counsel. The Optional Protocol entered into force for Canada on 19 August 1976. 2.3 On 13 March 1992, the Ontario Court of Appeal dismissed the author’s appeal from the District Court, holding that the 1923 treaty had extinguished the fishing rights previously held by the author’s First Nation, and that the First Nation’s representatives had known and understood the treaty and its terms. On 12 May 1994, the Supreme Court rejected the author’s further appeal, holding that by “clear terms” the First Nations surrendered any remaining special right to fish. The facts as presented 2.4 In 1990, the Canadian Supreme Court held in another case that “existing rights” within the meaning of section 35 of the Constitution Act were satisfied by evidence of continuity of the exercise of a right, even if scanty at times, unless there was evidence of a clear and plain intention by the Crown to extinguish the right.2 Thereafter, the Ontario government committed itself to negotiate arrangements with indigenous people as soon as possible on the issue of hunting, fishing, gathering and trapping. 2.1 The author’s Hiawatha community forms part of the Mississauga First Nations. These First Nations, among others, are parties to treaties concluded with the Crown, including a 1923 treaty (“the 1923 Williams treaty”) dealing, inter alia, with indigenous hunting and fishing rights. It provided, in return for compensation of $500,000, that the Mississauga First Nations “cede, release, surrender, and yield up” their interests in specific described lands, and further, “all the right, title interest, claim demand and privileges whatsoever of the said Indians in, to, upon or in respect of all other lands situated in the Province of Ontario to which they ever had, now have, or now claim to have any right, title, interest, demand or privileges, except such reserves as have been set apart for them by His Majesty the King.”1 2.5 On 7 March 1995, the so-called “Community Harvest Conservation Agreements” (CHCAs) were signed by the Ontario Government and the Williams Treaties First Nations, allowing for the exercise of certain hunting and fishing rights. Under these agreements, which were renewable yearly, First Nations were permitted to hunt and fish outside the reserves, for subsistence, as well as for ceremonial and spiritual purposes, and barter in kind. 1 In the first preambular paragraph to the treaty, it reads: “WHEREAS, the Mississauga Tribe above described, having claimed to be entitled to certain interests in the lands of the Province of Ontario, hereinafter described, such interests being the Indian Title of the said Tribe to fishing, hunting and trapping rights over the said lands, of which said rights His Majesty, through His said Commissioners, is desirous of obtaining a surrender….” 2 126 R v. Sparrow [1990] 1 SCR 1075 (SCC).