v)  Is the appellant's infringement of the respondents' aboriginal right to hunt for food justified?

 [# 71]     The second basic issue on appeal, namely, whether the learned judge erred in finding that the infringement by ss. 46 and 47(1) of the Act of the respondents' aboriginal right to hunt for food was not justified, makes necessary a consideration of the justification test as first outlined in Sparrow, supra:

      If a prima facie interference is found, the analysis moves to the issue of justification.  This is the test that addressed the question of what constitutes legitimate regulation of a constitutional aboriginal right.  The justification analysis would proceed as follows. 

First, is there a valid legislative objective?  ... If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue.  Here, we refer back to the guiding interpretative principle derived from Taylor and Williams and Guerin, supra.  That is, the honour of the Crown is at stake in dealings with aboriginal peoples.  The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified ... We would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification.  Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts, and indeed all Canadians.

 [# 73]     As acknowledged by the appellant, Ontario did not consult with OMAA or the MNO concerning the provisions of the Act in question.  The learned judge also found, at para. 112 of his reasons, that ... at the present time, the Ontario Government does not recognize Métis people as having any special access rights to natural resources.

 [# 74]     How, one might ask, can the appellant justify the infringement of the respondents' aboriginal right to hunt for food, when the affected local Métis community has not been consulted, and when, even having regard for the valid legislative objective of conservation, hunting for recreation, sport and for food by others who are not aboriginal peoples as defined in s. 35(2) is currently permitted?  As was stated by Chief Justice Lamer (as he then was) in R. v. Adams, supra , at 134, 135:

      I have some difficulty in accepting, in the circumstances of this case, that the enhancement of sports fishing per se is a compelling and substantial objective for the purposes of s. 35(1).  While sports fishing is an important economic activity in some parts of the country, in this instance, there is no evidence that the sports fishing that this scheme sought to promote had a meaningful economic dimension to it.  On its own, without this sort of evidence, the enhancement of sports fishing accords with neither of the purposes underlying the protection of aboriginal rights, and cannot justify the infringement of those rights.  It is not aimed at the recognition of distinct aboriginal cultures.  Nor is it aimed at the reconciliation of aboriginal societies with  the rest of Canadian society, since sports fishing, without evidence of a meaningful economic dimension, is not "of such overwhelming importance to Canadian society as a whole" (Gladstone, supra at para. 74) to warrant the limitation of aboriginal rights.

      Furthermore, the scheme does not meet the second leg of the test for justification, because it fails to provide the requisite priority to the aboriginal right to fish for food; a requirement laid down by this Court in Sparrow.  As we explained in Gladstone, the precise meaning of priority for aboriginal fishing rights is in part a function of the nature of the right claimed.  The right to fish for food, as opposed to the right to fish commercially, is a right which should be given first priority after conservation concerns are met.

      (d)  Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights.  The Court has emphasized the importance in the justification context of consultations with aboriginal peoples.  Reference has already been made to the rule in Sparrow, supra, at p. 1114, repeated in Badger, supra, atpara. 97 that:

           The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.

           The special trust relationship includes the right of  the treaty beneficiaries to be consulted about restrictions on their rights, although, as stated in Delgamuukw, supra, at para. 168:

                The nature and scope of the duty of consultation will vary with the circumstances. This variation may reflect such factors as the seriousness and duration of the proposed restriction, and whether or not the Minister is required to act in response to unforeseen or urgent circumstances. As stated, if the consultation does not produce an agreement, the adequacy of the justification of the government's initiative will have to be litigated in the courts.

 [# 77]     Furthermore, and in any event, the appellant in this case, if necessary, has the power to regulate the Métis right to hunt for food through the imposition of closed seasons.  As was stated in Marshall, supra, at para. 29:

      The regulatory device of a closed season is at least in part directed at conservation of the resource. Conservation has always been recognized to be a justification of paramount importance to limit the exercise of treaty and aboriginal rights in the decisions of this Court cited in the majority decision of September 17, 1999, including Sparrow, supra, and Badger, supra. As acknowledged by the Native Council of Nova Scotia in opposition to the Coalition's motion, "Conservation is clearly a first priority and the Aboriginal peoples accept this".  Conservation, where necessary, may require the complete shutdown of a hunt or a fishery for aboriginal and non-aboriginal alike.