ABORIGINAL FISHING RIGHTS:
SUPREME COURT DECISIONS
Jane May Allain
Law and Government Division
FISHING RIGHTS: A QUESTION OF FACTS
B. Van Der Peet
CANNOT REGULATE FISHERY
SUPREME COURT DECISIONS
In Sparrow,(1) the Supreme Court of Canada considered for
the first time the scope of section 35(1) of the Constitution Act,
1982, which recognizes and affirms the aboriginal and treaty rights
of aboriginal peoples of Canada. Significantly, the court made it clear
that the rights recognized and affirmed by section 35 are not absolute
and outlined a test whereby the Crown may justify legislation that infringes
on aboriginal rights. More recently, the Supreme Court of Canada, in a
trilogy of cases dealing with commercial fishing rights (R. v.
Van Der Peet,(2) R. v. Smokehouse(3) and R. v. Gladstone(4)), laid further groundwork on
how aboriginal rights should be defined. In essence, the Court decreed
that a purposive approach must be applied in interpreting section 35 of
the Constitution Act, 1982; in other words, the interests that
section 35 was intended to protect must be identified. To define an aboriginal
right, one must identify the practices, traditions and customs central
to aboriginal societies that existed in North America prior to contact
with the Europeans - to be recognized as an aboriginal right, the practice,
tradition or custom must be an integral part of the distinctive culture
of aboriginal peoples. The Court reiterated that section 35 did not create
the legal doctrine of aboriginal rights, but emphasized that they already
existed under the common law. The Crown can no longer extinguish existing
aboriginal rights, but may only regulate or infringe upon them consistent
with the test laid out in the Sparrow decision.
The following is a summary
of the cases mentioned above, as well as the rulings of the Supreme Court
of Canada in Lewis(5) and Nikal,(6) which examined "on reserve" fishing
FISHING RIGHTS: A QUESTION OF FACTS
Ronald Sparrow, a member
of the B.C.s Musqueam band, was charged with fishing with a net
longer than was permitted by his food fishing licence, in contravention
of the Fisheries Act. Mr. Sparrow did not dispute the facts; on
the contrary, he argued in his defence that he was exercising an existing
aboriginal fishing right, constitutionally protected under section 35.
While agreeing that members of the Musqueam band, including Mr. Sparrow,
had an aboriginal right to fish, particularly for food and for social
and ceremonial purposes, the Supreme Court of Canada ordered that certain
constitutional questions be referred back to the trial court, and established
the criteria that the trial judge should take into account while reviewing
these matters. The Supreme Court strongly hinted that the government should
enter into negotiations with aboriginal peoples regarding the management
of the fisheries, in order to avoid future litigation.
Some general principles
were established in Sparrow. First, the Court ruled that section
35 of the Constitution Act, 1982 applies only to rights that existed
at the time this provision came into force. In other words, the term "existing"
means "unextinguished in 1982." The Supreme Court specified,
however, that the way in which the right had been regulated until that
time does not dictate the extent of that right; on the contrary, the term
"existing aboriginal rights" must be interpreted flexibly, in
order to allow these rights to evolve over time. It categorically rejected
the "frozen rights" doctrine. (Some would argue, however, that
the majority later revived the "frozen rights" doctrine in Van
Der Peet). The Supreme Court of Canada emphasized that section 35
must be given a generous, liberal interpretation in light of its objectives.
As mentioned earlier, the
Supreme Court concluded that members of the Musqueam band had an aboriginal
right to fish, particularly for food and for social and ceremonial purposes.
It also concluded that the Crown had been unable to demonstrate that this
right had been extinguished by the Regulations accompanying the Fisheries
Act. In order to extinguish an aboriginal right, the Crown must demonstrate
a clear and plain intention to do so. The Supreme Court noted that neither
the Act nor the Regulations revealed the required intent to extinguish
a constitutional right. The fact that the Department of Fisheries and
Oceans had issued licences to individuals at its own discretion indicated
only an intent to manage the fisheries, rather than an attempt to define
aboriginal fishing rights.
The Supreme Court ruled
that, when a legislative measure limits the exercise of an existing aboriginal
right, there is prima facie infringement of section 35 of the Constitution
Act, 1982. In order to determine whether there is indeed infringement,
the following three questions must be asked:
- Is the limitation unreasonable?
- Does the regulation impose undue hardship?
- Does the regulation deny to the holders
of the right their preferred means of exercising that right?
Once it is proved that an
infringement has taken place, the next step is to determine whether the
infringement was justified. Although the Supreme Court stated that aboriginal
rights are not subject to the justification test as set out in section
1 of the Charter, the Court nevertheless applied a similar test, which
requires, first of all, a valid legislative objective (for example, a
valid objective of a regulation would be to ensure the proper management
and conservation of a natural resource). Secondly, the justification test
requires consideration of the federal governments fiduciary duty
towards aboriginal people, an essential factor in resource allocation.
The Supreme Court indicated the need for guidelines to solve resource
allocation problems that would certainly arise in the future. The Court
noted that subsistence fishing by aboriginal people should be given priority,
after conservation requirements.
The Supreme Court refused
to draw up an exhaustive list of factors in the justification test, but
noted several points that a court should consider, including:
- whether there had been as little infringement
as possible of the aboriginal right;
- whether fair compensation had been made
to the aboriginal group concerned in cases of expropriation; and
- whether the aboriginal group concerned
had been consulted about the conservation measure imposed.
In summary, the Sparrow
doctrine requires a court to answer three main questions:
- Is there an aboriginal or treaty right?
- If so, does the regulation or legislation
in question interfere with this right?
- If there is infringement of a right,
is the infringement justified?
The Supreme Court noted
that aboriginal people have the burden of proving the existence and infringement
of their rights. The Crown, on the other hand, has the burden of proving
justification; that is, it must demonstrate that the legislative measures
are both valid and justifiable. The Supreme Court suggested that, in light
of the governments fiduciary duty towards aboriginal people, it
must limit the exercise of its legislative authority. The Court also specified
that the final outcome would depend entirely on the findings of fact in
a specific case. That essentially means that aboriginal rights will be
determined on a case-by-case basis.
In Sparrow, the Supreme
Court refused to examine the question of an aboriginal right to fish for
commercial purposes since the issue had not been properly debated before
the lower courts. The Supreme Court chose instead to restrict the scope
of its analysis to the Musqueams constitutional right to fish for
food, social and ceremonial purposes. That is not to say that the Supreme
Court ruled out the possibility that an aboriginal group could one day
successfully claim a commercial fishing right; on the contrary, it intimated
that such a claim would be a contentious issue in the future. A few years
later, the thorny question of whether there existed a constitutionally
protected aboriginal right to sell fish was once again before the Court
(the Van Der Peet, Gladstone and Smokehouse trilogy).
This time the Supreme Court did not hesitate to examine the issue thoroughly.
Dorothy Van Der Peet, a
member of the Sto:lo, was charged with illegally selling fish caught under
an Indian food fish licence, contrary to section 27(5) of the B.C.
Fishery (General) Regulations. As in similar constitutional challenges,
the appellant did not contest these facts but argued in her defence that
the regulations infringed her aboriginal right to sell fish and were therefore
invalid. The trial judge held that the Sto:los aboriginal right
to fish for food and ceremonial purposes did not include the right to
sell the fish; consequently, he convicted the appellant. The majority
of the Supreme Court of Canada upheld the conviction. In sum, the majority
concluded that the aboriginal rights of the Sto:lo did not include the
right to exchange fish for money or other goods. Both McLachlin J. and
LHeureux-Dubé J. issued dissenting opinions in which they expressed
the opposite conclusion: the dissenters would have recognized that the
Sto:lo retained an aboriginal right to sell, trade and barter fish for
In the majority ruling,
general principles governing the legal relationship between the Crown
and aboriginal peoples were reiterated. Given the fiduciary obligation
the Crown owes aboriginal peoples, the Court restated that section 35(1)
of the Constitution Act, 1982 should be given a generous and liberal
interpretation. Any doubt or ambiguity as to the scope and definition
of section 35(1) must be resolved in favour of aboriginal peoples. The
majority of the Court then went on to find that the purpose of section
35(1) is to recognize the prior occupation of North America by aboriginal
peoples. To help define aboriginal rights, the majority enunciated a test:
in order to be recognized as an aboriginal right, an activity must be
an element of a practice, custom or tradition integral to the distinctive
culture of the aboriginal group claiming the right. The majority further
specified that practices, customs and traditions that constitute aboriginal
rights are those that show continuity with the traditions, customs
and practices that existed prior to the arrival of Europeans in North
America. It was underlined, however, that pre-contact practices, customs
and traditions that have evolved into modern forms may still be protected
as aboriginal rights.
The majority highlighted
several guiding factors that a court must consider in its assessment of
aboriginal rights, including:
- the perspective of aboriginal peoples
- the precise nature of the claim being
- the central significance of the practice,
custom or tradition to the aboriginal society in question,
- the relationship of aboriginal peoples
to the land, and
- the distinctive societies and cultures
of aboriginal peoples.
The majority further noted
that a court must be flexible in applying rules of evidence, given the
special nature of aboriginal claims. This is in recognition of the fact
that the history of aboriginal peoples has been passed from one generation
to another through oral traditions. Thus, the only "evidence"
of past traditions, practices and customs may come in the form of elders
oral accounts. In addition, the majority stressed that aboriginal
rights must be adjudicated on a specific rather than general basis. In
other words, whether an aboriginal right exists will depend entirely on
the traditions, customs and practices of the particular aboriginal community
making the claim.
In light of these guiding
principles, the majority felt it must defer to the trial judges
findings of fact, since there were no palpable or overriding errors on
his part. It therefore accepted his conclusion that the appellant had
failed to demonstrate that the exchange of fish for money or other goods
was an integral part of the distinctive Sto:lo society that had existed
prior to European contact.
The dissenting opinions
of McLachlin J. and LHeureux-Dubé in Van Der Peet were quite
critical of the analysis adopted by the majority, which they viewed as
reviving the "frozen rights" doctrine. The dissenting judges
were of the view that a practice, custom or tradition need not have been
crystallized prior to European contact to be recognized as a constitutionally
protected right today; rather, to be protected as an aboriginal right,
an aboriginal activity need only have formed an integral part of the distinctive
aboriginal culture for a substantial period of time.
In this case, a company
operating a food processing plant was convicted of purchasing and selling
fish caught without the authority of a commercial fishing licence. The
company had illegally purchased fish caught under the authority of Indian
food fish licences. The appellant did not dispute these facts but raised
the constitutional argument that the Fishery Regulations infringed
the aboriginal rights of the Sheshaht and Opetchesaht, from whom it had
purchased the fish. Once again, the Supreme Court was divided on the issue:
a majority affirmed the conviction, while McLachlin J. and LHeureux-Dubé
J. would have granted the appeal.
In essence, the majority
applied the test it had earlier enunciated in Van Der Peet. It
considered the right claimed in this case to be at first glance a right
to fish commercially, given the volume of fish being caught and sold.
The majority stated that the claim to an aboriginal right to fish commercially
would be far more difficult to establish than the claim to an aboriginal
right to exchange fish for money or other goods: to establish the former
right, the claimant group would have had to demonstrate that the exchange
of fish for money or other goods, on a commercial scale, formed
an integral part of the distinctive culture of the Sheshaht and Opetchesaht
peoples. In light of this onerous evidentiary hurdle, the majority decided
to frame the claim at the outset as the right to exchange fish for money
or other goods. Only if the appellant had been successful on this first
claim would the majority then have proceeded to an examination of the
right to exchange fish on a commercial basis. This second step of the
analysis was never undertaken, however, since the appellant failed to
convince the majority of the Court that the Sheshaht and Opetchesaht had
a right to exchange fish for money.
Once again, the majority
endorsed the trial judges conclusions; these were that since sales
of fish were "few and far between" and "incidental"
to potlatches and ceremonies, they did not constitute an aboriginal right
to sell fish. The majority saw no compelling reason to overturn the trial
judges findings of fact that the exchange of fish for money or other
goods did not form an integral part of the distinctive cultures of the
Sheshaht and Opetchesaht.
The dissenting opinions
in Smokehouse followed a common approach, but differed in their
results. LHeureux-Dubé J. would have characterized the aboriginal
right claimed as the right to sell, trade and barter fish for livelihood
and sustenance purposes, not on a commercial basis. In her opinion, the
trial judge had erred in formulating the question in terms of commercial
fishing. As a result of these palpable and overriding errors, LHeureux-Dubé
J. felt she could substitute her own findings of fact. In her view, the
evidence showed that the sale, trade and barter of fish for livelihood,
support and sustenance purposes was sufficiently significant and fundamental
to the culture and social organization of the Sheshaht and Opetchesaht
to be recognized as an aboriginal right. She also concluded that the disputed
legislation did not extinguish this aboriginal right. LHeureux-Dubé
J. would have referred the questions regarding the infringement of the
right and the validity of the regulations back to the trial judge. McLachlin
J., on the other hand, would have ruled in favour of the appellant on
all counts on the grounds that the Sheshaht and Opetchesaht people possessed
an aboriginal right to sell fish for the purpose of obtaining sustenance
from the fishery; that the right had not been extinguished by the Crown;
that the Regulations in question infringed the claimants ability
to fully exercise their right; that the infringement of their right could
not be justified by the Crown; and that, as a result, the Regulations
in question were invalid.
The Gladstone ruling
clearly illustrates that the recognition of an aboriginal right comes
down to findings of fact as assessed by the trial judge. At issue at the
Supreme Court was whether section 20(3) of the Pacific Herring Fishery
Regulations, which prohibited the sale of any herring spawn on kelp
without a proper licence, was invalid since it violated the aboriginal
rights of the appellants. The majority (including LHeureux-Dubé
J. and McLachlin J., who issued concurrent reasons) recognized and endorsed
the findings of the trial judge that the commercial trade in herring spawn
on kelp had been an integral part of the distinctive culture of the Heiltsuk
prior to European contact. The evidence presented at trial established
that trade was not an incidental activity for the Heiltsuk but
rather a central and defining feature of their society. The majority ruled
that the disputed Regulations (both past and current) did not express
a clear and plain intention on the part of the Crown to extinguish the
aboriginal rights of the Heiltsuk to fish commercially. The Crown had
demonstrated only that it had intended to control the fisheries. The majority
also found that the disputed regulatory scheme impinged upon the rights
of the appellants, and constituted a prima facie infringement of
their aboriginal rights. Because of the lack of evidence on the issue,
the Supreme Court felt it could not properly assess whether the Regulations
could be justified as a reasonable limitation of these rights. That matter
was sent back to be determined at trial.
Judge La Forest was the
lone dissenter in the Gladstone case; he found that the appellants
had failed to establish that they had been exercising an aboriginal right
at the time of the offences, since their activities had been different
from the traditional activities that had given rise to their aboriginal
right. Even if the Heiltsuk had at some time benefited from the aboriginal
right claimed, La Forest J. concluded that the right had since been extinguished
by the intervening regulatory scheme. La Forest J. found that the disputed
Regulations showed the Crowns clear and plain intention to extinguish
aboriginal rights relating to the commercial fisheries.
BAND BY-LAWS CANNOT
Members of the Squamish
Indian Band were convicted of illegal "net fishing" on the Squamish
River in an area immediately contiguous to the reserve, contrary to the
B.C. Fishery (General) Regulations. At trial, the appellants had argued
that an Indian band by-law authorized band members to fish in the area.
Under section 81(1)(o) of the Indian Act, a band may enact by-laws
"for the preservation, protection and management of fish on the reserve."
The Supreme Court of Canada upheld the convictions, in essence ruling
that the band by-law did not apply to the fishery in the Squamish River
at the reserve, and consequently, could not be used successfully as a
defence to charges under the B.C. Fishery (General) Regulations.
Supreme Court ruled that the fishery itself did not form part of the reserve.
In addition, it was noted that the Crown did not historically grant exclusive
use of any public waters; rather, the Crowns policy was to treat
Indians and non-Indians equally as to the use of the water. Further, the
Supreme Court decreed that the Crown had fulfilled its fiduciary obligation
to the Squamish Band by providing fishing stations for their use.
With regard to validity
of the band by-law, the Supreme Court noted that the phrase "on the
reserve" in the context of s. 81(1)(o) of the Indian Act should
be interpreted as meaning "within the reserve," "inside
the reserve," or "located within the boundaries of the reserve."
The Supreme Court stated that Parliament had never intended that a band
by-law would have an extra-territorial effect; if Parliament had intended
to grant broad regulatory powers to bands beyond the limits of their reserves,
it would have specifically delineated these powers. Accordingly, the management
of the Squamish River is governed by the Fisheries Act and regulations,
not the band by-law.
The appellant had been charged
with fishing salmon without a licence, contrary to the B.C. Fishery
(General Regulations). (Under the regulations, native persons were
entitled to a "free" licence to fish for salmon in the manner
they preferred). Mr. Nikal argued that the licensing scheme infringed
his aboriginal rights as protected under section 35(1) of the Constitution
Act, 1982. He also argued that, since the river was part of his reserve,
he need comply only with the band by-law which allowed members unrestricted
fishing on the river.
For the Supreme Court of
Canada, there were two main issues in dispute:
- whether the bands fishing by-law
applied to the Bukley River because it flowed in part through the bands
- whether the licensing requirement under
the General Fishery Regulations infringed the appellants
aboriginal rights under section 35.
Regarding the band by-law,
the Supreme Court reiterated that it had not been the Crowns intention
when creating the reserve to grant the band an exclusive fishery. Despite
the bands claim of being misled on that point, the Supreme Court
maintained that the historical facts established the Crowns intention
to allot only the land of the reserve and not the river. Consequently,
a band by-law could not apply to the river bed.
Although ruling that the
requirement to obtain a licence did not infringe the appellants
aboriginal rights, the Court found that the mandatory conditions set out
in the licence did prima facie violate his right to fish. Some
of the conditions imposed were seen as unreasonable. They dictated that
- fish for food only;
- fish during certain times subject to
change by public notice;
- fish for themselves or their families;
- fish for salmon only.
The Supreme Court concluded
that since the government had adduced no evidence to justify these conditions,
the licence and its conditions were both invalid. Consequently, the Supreme
Court restored the original order of acquittal of the appellant.
The recent decisions by
the Supreme Court of Canada on aboriginal fishing rights have been the
focus of much media attention. Those advocating the recognition of an
aboriginal right in the commercial fishery and those opposed to such an
initiative have both claimed victory in these landmark rulings. If the
truth be told, however, the Supreme Court has essentially left the issue
open for further debate. It has clearly established the analytical framework
for assessing future claims to an aboriginal right to sell fish, and has
stressed that such an assessment will hinge upon the particular customs,
traditions and practices of the claimant group that existed prior to European
contact. Although the Supreme Court did recognize an aboriginal right
to fish commercially in one case (Gladstone), it also stressed
that future claimants will have to discharge a heavy evidentiary burden
in order to show that the exchange of fish for money or other goods, on
a commercial basis, formed an integral part of their distinctive culture.
With regard to the band
by-laws regulating fisheries on public waters, the Supreme Court has made
it clear that such by-laws will be considered invalid. Although a band
has no power to regulate fishing beyond the limits of its reserve, this
does not mean the federal government has unfettered discretion in the
management of the fisheries. If the federal fishery regulations unduly
restrict an aboriginal right to fish, they may also be struck down as
(1) R. v. Sparrow,
 1 S.C.R. 1075.
R. v. Van Der Peet, unreported, 21 August 1996, file no.
23803, Supreme Court of Canada.
R. v. Smokehouse, unreported, 21 August 1996, file no. 23800,
Supreme Court of Canada.
(4) R. v. Gladstone, unreported,
21 August 1996, file no. 23801, Supreme Court of Canada.
R. v. Lewis,  1 S.C.R. 921.
R. v. Nikal,  3 C.N.L.R. 178 (S.C.C.).