Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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21 August, 1996
Constitutional law -- Aboriginal rights -- Right to sell fish caught on non-commercial basis -- fish caught under a native fish licence -- Prohibition of sale or barter of fish caught under such licence -- definition of `existing Aboriginal right' used in s. 35 of Constitution Act 1982.
The appellant, a member of the Salish First Nation, was charged with selling ten salmon caught under the authority of an Indian fish food licence. The sale allegedly breached s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence. The appellant alleged that the restrictions imposed by the regulations were invalid because they violated s. 35(l) of the Constitution, a provision which protected Aboriginal rights. The decision at first instance held that an Aboriginal right to fish for food and ceremonial purposes did not include the right to sell the fish. The summary appeal judge found there was an Aboriginal right to sell fish and a new trial was set down. The Court of Appeal found in favour of the Crown and restored the guilty verdict. In this case the Supreme Court had to decide if s. 27(5) of the Regulations was valid or whether it was invalid by virtue of the Aboriginal rights pursuant to s. 35(l).
The majority (7:2) held the appeal should be dismissed.
The purpose of s. 35(l) is (a) to recognise that Aboriginal people lived in distinctive societies with their own practices, customs and traditions and (b) to allow this to be reconciled with the sovereignty of the Crown. Aboriginal rights cannot be extinguished. The definition of any substantive rights which fall within the ambit of s. 35(l) must bear in mind this purpose. Aboriginal rights can be regulated or infringed if the justificatory test laid down in R v Sparrow [1990] 1 SCR 335 is followed.
To be an Aboriginal right an activity must be an element of custom, practice or tradition integral to the distinctive culture of the Aboriginal people in question prior to contact with Europeans.
R v Smokehouse [1996] SCJ no. 78, and R v Gladstone [I996] SCJ no. 79, two other British Columbia fishing rights cases, handed down simultaneously with R v Van Der Peet, applied the Van Der Peet test.
Van der Peet is also reported in (1996) 137 DLR (4th) 289; [1996] 2 SCR 507.
The judgment of Lamer CJ and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ was delivered by Lamer CJ.
This appeal, along with the companion appeals in R v NTC Smokehouse Ltd, SCC, No. 23800, and R v Gladstone, SCC No. 23801, raises the issue left unresolved by this Court in its judgment in R v Sparrow, [1990] 1 SCR 1075: how are the Aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?
In Sparrow, Dickson CJ and La Forest J, writing for a unanimous Court, outlined the framework for analysing s. 35(1) claims. First, a court must determine whether an applicant has demonstrated that he or she was acting pursuant to an Aboriginal right. Second, a court must determine whether that right has been extinguished. Third, a court must determine whether that right has been infringed. Finally, a court must determine whether the infringement is justified.
...
This judgment will ... after outlining the context and background of the appeal, articulate a test for identifying Aboriginal rights which reflects the purposes underlying s. 35(1), and the interests which that constitutional provision is intended to protect.
Scarlett Prov Ct J rejected the appellant's argument that she sold fish pursuant to an Aboriginal right. He found that, historically, the Sto:lo people clearly fished for food and ceremonial purposes, but that any trade in salmon that occurred was incidental and occasional only ... [and] that the Sto:lo's Aboriginal right to fish for food and ceremonial purposes does not include the right to sell such fish. He therefore found the accused guilty of violating s. 61(1) of the Fisheries Act.
Selbie J of the Supreme Court of British Columbia held that Scarlett Prov Ct J erred when he looked at the evidence in terms of whether or not it demonstrated that the Sto:lo participated in a market system of exchange. The evidence should ... have been viewed so as to determine whether it "is more consistent with the Aboriginal right to fish including the right to sell, barter or exchange than otherwise" (at para. 16). He ... held that the Sto:lo had an Aboriginal right to sell fish and that the trial judge's verdict against the appellant was inconsistent with the evidence.
The British Columbia Court of Appeal allowed the Crown's appeal and restored the guilty verdict of Scarlett Prov Ct J Macfarlane JA ... held ... that a practice will be protected as an Aboriginal right under s. 35(1) of the Constitution Act, 1982 where the evidence establishes that it had "been exercised, at the time sovereignty was asserted for a sufficient length of time to become integral to the Aboriginal society". To be protected as an Aboriginal right, however, the practice cannot have become "prevalent merely as a result of European influences" (at para. 21) but must rather arise from the Aboriginal society itself. ...
In his concurring judgment Wallace JA ... emphasized that s. 35(1) should not be interpreted as having the purpose of enlarging the pre-1982 concept of Aboriginal rights; instead it should be seen as having the purpose of protecting from legislative encroachment those Aboriginal rights that existed in 1982. ... [He] held, at para. 102, that rights should not be "determined by reference to the economic objectives of the rights-holders". He concluded that ... the trial judge was correct in determining that the commercial sale of fish is different in nature and kind from the Aboriginal right of the Sto:lo to fish for sustenance and ceremonial purposes, with the result that the appellant could not be said to have been exercising an Aboriginal right when she sold the fish.
Lambert JA dissented. ... In his view, the appropriate description of a right
or practice is one based on the significance of the
practice to the particular
Aboriginal culture. As such ... a court should look not to the purpose for
which Aboriginal people fished,
but should rather look at the significance of
fishing to the Aboriginal society; it is the social significance of fishing
which is
integral to the distinctive Aboriginal society and which is,
therefore, protected by
s. 35(1) of the Constitution Act, 1982. ...
[He] rejected the position of the majority that the commercial dimension of the fishery was introduced by Europeans and therefore outside of the protection of s. 35(1). The key point, he suggested, is not that the Europeans introduced commerce, but is rather that as soon as the Europeans arrived the Sto:lo began trading with them. In doing so the Sto:lo were not breaking with their past; the trade with the Hudson's Bay Company "represented only a response to a new circumstance in the carrying out of the existing practice". Lambert JA went on to hold that the Sto:lo right to fish for a moderate livelihood had not been extinguished and that it had been infringed by s. 27(5) of the Regulations in a manner not justified by the Crown. He would thus have dismissed the appeal of the Crown and entered a verdict of acquittal.
Hutcheon JA also dissented. He did so on the basis that there is no authority for the proposition that the relevant point for identifying Aboriginal rights is prior to contact with Europeans and European culture.
...
Leave to appeal to this Court was granted on March 10, 1994. The following constitutional question was stated:
Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read on September 11, 1987, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, by reason of the Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982, invoked by the appellant?
The appellant appealed on the basis that the Court of Appeal erred in defining the Aboriginal rights protected by s. 35(1) as those practices integral to the distinctive cultures of Aboriginal peoples. The appellant argued that the Court of Appeal erred in holding that Aboriginal rights are recognized for the purpose of protecting the traditional way of life of Aboriginal people. The appellant also argued that the Court of Appeal erred in requiring that the Sto:lo satisfy a long-time use test, in requiring that they demonstrate an absence of European influence and in failing to adopt the perspective of Aboriginal peoples themselves.
I now turn to the question which ... lies at the heart of this appeal: how should the Aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 be defined?
...
The task of this Court is to define Aboriginal rights in a manner which recognizes that Aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by Aboriginal people because they are Aboriginal. The Court must neither lose sight of the generalized constitutional status of what s. 35(1) protects, nor can it ignore the necessary specificity which comes from granting special constitutional protection to one part of Canadian society. The Court must define the scope of s. 35(1) in a way which captures both the Aboriginal and the rights in Aboriginal rights.
The way to accomplish this task is ... through a purposive approach to s. 35(1). It is through identifying the interests that s. 35(1) was intended to protect that the dual nature of Aboriginal rights will be comprehended. In Hunter v Southam Inc, [1984] 2 SCR 145, Dickson J explained the rationale for a purposive approach to constitutional documents. Courts should take a purposive approach to the Constitution because constitutions are, by their very nature, documents aimed at a country's future as well as its present; the constitution must be interpreted in a manner which renders it "capable of growth and development over time to meet new social, political and historical realities often unimagined by the framers": Hunter, supra, at p. 155. ...
In Sparrow, supra, Dickson CJ and La Forest J held at p. 1106 that it was through a purposive analysis that s. 35(1) must be understood:
The approach to be taken with respect to interpreting the meaning of s. 35(1) is derived from general principles of constitutional interpretation, principles relating to Aboriginal rights, and the purposes behind the constitutional provision itself.
Before turning to a purposive analysis of s. 35(1), however, it should be noted that such analysis must take place in light of the general principles which apply to the legal relationship between the Crown and Aboriginal peoples. In Sparrow, supra, this Court held at p. 1106 that s. 35(1) should be given a generous and liberal interpretation in favour of Aboriginal peoples: ...
This interpretive principle, articulated first in the context of treaty rights -- Simon v The Queen [1985] 2 SCR 387, at p. 402; Nowegijick v The Queen, [1983] 1 SCR 29, at p. 36; R v Horseman, [1990] 1 SCR 901, at p. 907; R v Sioui, [1990] 1 SCR 1025, at p. 1066 -- arises from the nature of the relationship between the Crown and Aboriginal peoples. The Crown has a fiduciary obligation to Aboriginal peoples with the result that in dealings between the government and Aboriginals the honour of the Crown is at stake. Because of this fiduciary relationship, and its implication of the honour of the Crown, treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests of Aboriginal peoples, must be given a generous and liberal interpretation: ...
The fiduciary relationship of the Crown and Aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of Aboriginal peoples. R v Sutherland, [1980] 2 SCR 451, at p. 464, Dickson J held that para. 13 of the Memorandum of Agreement between Manitoba and Canada, a constitutional document, should be interpreted so as to resolve any doubts in favour of the Indians, the beneficiaries of the rights assured by the paragraph. This interpretive principle applies equally to s. 35(1) of the Constitution Act, 1982 and should, again, inform the Court's purposive analysis of that provision.
I now turn to a purposive analysis of s. 35(1).
When the court identifies a constitutional provision's purposes, or the interests the provision is intended to protect, what it is doing in essence is explaining the rationale of the provision; it is articulating the reasons underlying the protection that the provision gives. ...
In identifying the basis for the recognition and affirmation of Aboriginal rights it must be remembered that s. 35(1) did not create the legal doctrine of Aboriginal rights; Aboriginal rights existed and were recognized under the common law: Calder v Attorney-General of British Columbia, [1973] SCR 313. At common law Aboriginal rights did not, of course, have constitutional status, with the result that Parliament could, at any time, extinguish or regulate those rights: Kruger v The Queen, [1978] 1 SCR. 104, at p. 112; R v Derrickson (1976), 71 DLR (3d) 159 (SCC), [1976] SCR x; it is this which distinguishes the Aboriginal rights recognized and affirmed in s. 35(1) from the Aboriginal rights protected by the common law. Subsequent to s. 35(1) Aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatory test laid out by this Court in Sparrow, supra.
...
In my view, the doctrine of Aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.
...
Aboriginal title is the aspect of Aboriginal rights related specifically to Aboriginal claims to land; it is the way in which the common law recognizes Aboriginal land rights. As such, the explanation of the basis of Aboriginal title in Calder, supra, can be applied equally to the Aboriginal rights recognized and affirmed by s. 35(1). Both Aboriginal title and Aboriginal rights arise from the existence of distinctive Aboriginal communities occupying "the land as their forefathers had done for centuries".
...
The view of Aboriginal rights as based in the prior occupation of North America by distinctive Aboriginal societies, finds support in the early American decisions of Marshall CJ.
...
In Johnson v M'Intosh, 21 US [1823] USSC 22; (8 Wheat) 543 (1823), the first of the Marshall decisions on Aboriginal title, the Supreme Court held that Indian land could only be alienated by the US government, not by the Indians themselves. In the course of his decision (written for the court), Marshall CJ outlined the history of the exploration of North America by the countries of Europe and the relationship between this exploration and Aboriginal title. In his view, Aboriginal title is the right of Aboriginal people to land arising from the intersection of their pre-existing occupation of the land with the assertion of sovereignty over that land by various European nations. The substance and nature of Aboriginal rights to land are determined by this intersection:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. ... [A]s they were all in pursuit of nearly the same object, it was necessary in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. ... In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. [Johnson, supra, at pp. 572-74,.]
It is, similarly, the reconciliation of pre-existing Aboriginal claims to the territory that now constitutes Canada, with the assertion of British sovereignty over that territory, to which the recognition and affirmation of Aboriginal rights in s. 35(1) is directed.
...
The High Court of Australia has also considered the question of the basis and nature of Aboriginal rights. Like that of the United States, Australia's Aboriginal law differs in significant respects from that of Canada. In particular, in Australia the courts have not as yet determined whether Aboriginal fishing rights exist, although such rights are recognized by statute: Halsbury's Laws of Australia, Vol 1, paras. 5-2250, 5- 2255, 5-2260 and 5-2265. Despite these relevant differences, the analysis of the basis of Aboriginal title in the landmark decision of the High Court in Mabo v Queensland [No. 2] [1992] HCA 23; (1992), 175 CLR 1, is persuasive in the Canadian context.
The Mabo judgment resolved the dispute between the Meriam people and the Crown regarding who had title to the Murray Islands. The islands had been annexed to Queensland in 1879 but were reserved for the native inhabitants (the Meriam) in 1882. The Crown argued that this annexation was sufficient to vest absolute ownership of the lands in the Crown. The High Court disagreed, holding that while the annexation did vest radical title in the Crown, it was insufficient to eliminate a claim for native title; the court held at pp. 50-51 that native title can exist as a burden on the radical title of the Crown: "there is no reason why land within the Crown's territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty".
From this premise, Brennan J, writing for a majority of the Court, went on at p. 58 to consider the nature and basis of Aboriginal title:
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. ...
This position is the same as that being adopted here. "[T]raditional laws" and "traditional customs" are those things passed down, and arising, from the pre-existing culture and customs of Aboriginal peoples. ... To base Aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title in the pre-existing societies of Aboriginal peoples. This is the same basis as that asserted here for Aboriginal rights.
...
In his comment on Delgamuukw v British Columbia (British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia (1992), 17 Queen's LJ 350), Mark Walters suggests at pp. 412-13 that the essence of Aboriginal rights is their bridging of Aboriginal and non-Aboriginal cultures: The challenge of defining Aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined. ... a morally and politically defensible conception of Aboriginal rights will incorporate both legal perspectives. ...
The Canadian, American and Australian jurisprudence thus supports the basic proposition put forward at the beginning of this section: the Aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive Aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of Aboriginal rights must be directed at fulfilling both of these purposes; the next section of the judgment, as well as that which follows it, will attempt to accomplish this task.
In order to fulfil the purpose underlying s. 35(1) -- ie, the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America Aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions -- the test for identifying the Aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions and customs central to the Aboriginal societies that existed in North America prior to contact with the Europeans.
In Sparrow, supra, this Court did not have to address the scope of the Aboriginal rights protected by s. 35(1); however, in their judgment at p. 1099 Dickson CJ and La Forest J identified the Musqueam right to fish for food in the fact that:
The anthropological evidence relied on to establish the existence of the right suggests that, for the Musqueam, the salmon fishery has always constituted an integral part of their distinctive culture. Its significant role involved not only consumption for subsistence purposes, but also consumption of salmon on ceremonial and social occasions. The Musqueam have always fished for reasons connected to their cultural and physical survival. The suggestion of this passage is that participation in the salmon fishery is an Aboriginal right because it is an "integral part" of the "distinctive culture" of the Musqueam. ...
In light of the suggestion of Sparrow, supra, and the purposes underlying s. 35(1), the following test should be used to identify whether an applicant has established an Aboriginal right protected by s. 35(1): in order to be 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 test just laid out -- that Aboriginal rights lie in the practices, traditions and customs integral to the distinctive cultures of Aboriginal peoples -- requires further elaboration with regards to the nature of the inquiry a court faced with an Aboriginal rights claim must undertake. I will now undertake such an elaboration, concentrating on such questions as the time period relevant to the court's inquiry, the correct approach to the evidence presented, the specificity necessary to the court's inquiry, the relationship between Aboriginal rights and the rights of Aboriginal people as Canadian citizens, and the standard that must be met in order for a practice, custom or tradition to be said to be "integral".
In assessing a claim for the existence of an Aboriginal right, a court must take into account the perspective of the Aboriginal people claiming the right. In Sparrow, supra Dickson CJ and La Forest J held at p. 1112 that it is "crucial to be sensitive to the Aboriginal perspective itself on the meaning of the rights at stake". It must also be recognized, however, that that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure. ...
Related to this is the fact that in assessing a claim to an Aboriginal right a court must first identify the nature of the right being claimed; in order to determine whether a claim meets the test of being integral to the distinctive culture of the Aboriginal group claiming the right, the court must first correctly determine what it is that is being claimed. The correct characterization of the appellant's claim is of importance because whether or not the evidence supports the appellant's claim will depend, in significant part, on what, exactly, that evidence is being called to support.
I would note here by way of illustration that, in my view, both the majority and the dissenting judges in the Court of Appeal erred with respect to this aspect of the inquiry. The majority held that the appellant's claim was that the practice of selling fish "on a commercial basis" constituted an Aboriginal right and, in part, rejected her claim on the basis that the evidence did not support the existence of such a right. With respect, this characterization of the appellant's claim is in error; the appellant's claim was that the practice of selling fish was an Aboriginal right, not that selling fish "on a commercial basis" was. It was however, equally incorrect to adopt, as Lambert JA did, a "social" test for the identification of the practice, tradition or custom constituting the Aboriginal right. The social test casts the Aboriginal right in terms that are too broad and in a manner which distracts the court from what should be its main focus -- the nature of the Aboriginal community's traditions, customs or practices themselves. The nature of an applicant's claim must be delineated in terms of the particular practice, tradition or custom under which it is claimed; the significance of the practice, tradition or custom to the Aboriginal community is a factor to be considered in determining whether the practice, tradition or custom is integral to the distinctive culture, but the significance of a practice, tradition or custom cannot, itself, constitute an Aboriginal right.
To characterize an applicant's claim correctly, a court should consider such factors as the nature of the action which the applicant is claiming was done pursuant to an Aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the tradition, custom or practice being relied upon to establish the right. In this case, therefore, the Court will consider the actions which led to the appellant's being charged, the fishery regulation under which she was charged and the customs, practices and traditions she invokes in support of her claim. ...
To satisfy the integral to a distinctive culture test the Aboriginal claimant must do more than demonstrate that a practice, tradition or custom was an aspect of, or took place in, the Aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, tradition or custom was a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words, that the practice, tradition or custom was one of the things which made the culture of the society distinctive -- that it was one of the things that truly made the society what it was.
This aspect of the integral to a distinctive culture test arises from fact that Aboriginal rights have their basis in the prior occupation of Canada by distinctive Aboriginal societies. To recognize and affirm the prior occupation of Canada by distinctive Aboriginal societies it is to what makes those societies distinctive that the court must look in identifying Aboriginal rights. The court cannot look at those aspects of the Aboriginal society that are true of every human society (eg, eating to survive), nor can it look at those aspects of the Aboriginal society that are only incidental or occasional to that society; the court must look instead to the defining and central attributes of the Aboriginal society in question. It is only by focusing on the aspects of the Aboriginal society that make that society distinctive that the definition of Aboriginal rights will accomplish the purpose underlying s. 35(1).
Moreover, the Aboriginal rights protected by s. 35(1) have been said to have the purpose of reconciling pre-existing Aboriginal societies with the assertion of Crown sovereignty over Canada. To reconcile Aboriginal societies with Crown sovereignty it is necessary to identify the distinctive features of those societies; it is precisely those distinctive features which need to be acknowledged and reconciled with the sovereignty of the Crown.
... The significance of the tradition, practice or custom does not serve to identify the nature of a claim of acting pursuant to an Aboriginal right; however, it is a key aspect of the court's inquiry into whether a tradition, practice or custom has been shown to be an integral part of the distinctive culture of an Aboriginal community. The significance of the practice, tradition or custom will inform a court as to whether or not that practice, tradition or custom can be said to be truly integral to the distinctive culture in question.
A practical way of thinking about this problem is to ask whether, without this practice, tradition or custom, the culture in question would be fundamentally altered or other than what it is. One must ask, to put the question affirmatively, whether or not a practice, tradition or custom is a defining feature of the culture in question.
The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the traditions, customs and practices that existed prior to contact.
... Because it is the fact that distinctive Aboriginal societies lived on the land prior to the arrival of Europeans that underlies the Aboriginal rights protected by s. 35(1), it is to that pre-contact period that the courts must look in identifying Aboriginal rights.
... It is not the fact that Aboriginal societies existed prior to Crown sovereignty that is relevant; it is the fact that they existed prior to the arrival of Europeans in North America. As such, the relevant time period is the period prior to the arrival of Europeans, not the period prior to the assertion of sovereignty by the Crown.
That this is the relevant time should not suggest, however, that the Aboriginal group claiming the right must accomplish the next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community. It would be entirely contrary to the spirit and intent of s. 35(1) to define Aboriginal rights in such a fashion so as to preclude in practice any successful claim for the existence of such a right. The evidence relied upon by the applicant and the courts may relate to Aboriginal practices, customs and traditions post-contact; it simply needs to be directed at demonstrating which aspects of the Aboriginal community and society have their origins pre-contact. It is those practices, customs and traditions that can be rooted in the pre-contact societies of the Aboriginal community in question that will constitute Aboriginal rights.
... Where an Aboriginal community can demonstrate that a particular practice, custom or tradition is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an Aboriginal right for the purposes of s. 35(1).
The concept of continuity is also the primary means through which the definition and identification of Aboriginal rights will be consistent with the admonition in Sparrow, supra, at p. 1093, that "the phrase `existing Aboriginal rights' must be interpreted flexibly so as to permit their evolution over time". The concept of continuity is, in other words, the means by which a "frozen rights" approach to s. 35(1) will be avoided. Because the practices, traditions and customs protected by s. 35(1) are ones that exist today, subject only to the requirement that they be demonstrated to have continuity with the practices, customs and traditions which existed pre-contact, the definition of Aboriginal rights will be one that, on its own terms, prevents those rights from being frozen in pre-contact times. The evolution of practices, customs and traditions into modern forms will not, provided that continuity with pre-contact practices, customs and traditions is demonstrated, prevent their protection as Aboriginal rights.
I would note that the concept of continuity does not require Aboriginal groups to provide evidence of an unbroken chain of continuity between their current practices, traditions and customs, and those which existed prior to contact. It may be that for a period of time an Aboriginal group, for some reason, ceased to engage in a practice, tradition or custom which existed prior to contact, but then resumed the practice, tradition or custom at a later date. Such an interruption will not preclude the establishment of an Aboriginal right. Trial judges should adopt the same flexibility regarding the establishment of continuity that, as is discussed, infra, they are to adopt with regards to the evidence presented to establish the prior-to-contact practices, customs and traditions of the Aboriginal group making the claim to an Aboriginal right.
Further, I would note that basing the identification of Aboriginal rights in the period prior to contact is not inconsistent with the fact that s. 35(2) of the Constitution Act, 1982 includes within the definition of "Aboriginal peoples of Canada" the Metis people of Canada.
Although s. 35 includes the Metis within its definition of Aboriginal peoples of Canada, and thus seems to link their claims to those of other Aboriginal peoples under the general heading of Aboriginal rights, the history of the Metis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other Aboriginal peoples in Canada. As such, the manner in which the Aboriginal rights of other Aboriginal peoples are defined is not necessarily determinative of the manner in which the Aboriginal rights of the Metis are defined. ...
The courts must not undervalue the evidence presented by Aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.
...
In identifying those practices, customs and traditions that constitute the
Aboriginal rights recognized and affirmed by
s. 35(1), a court must ensure
that the practice, custom or tradition relied upon in a particular case is
independently significant
to the Aboriginal community claiming the right. The
practice, custom or tradition cannot exist simply as an incident to another
practice, custom or tradition but must rather be itself of integral
significance to the Aboriginal society. ...
The standard which a practice, custom or tradition must meet in order to be recognized as an Aboriginal right is not that it be distinct to the Aboriginal culture in question; the Aboriginal claimants must simply demonstrate that the practice, custom or tradition is distinctive. ... It is a claim that this tradition or custom makes the culture what it is, not that the practice, custom or tradition is different from the practices, customs or traditions of another culture. ...
The fact that Europeans in North America engaged in the same practices, customs or traditions as those under which an Aboriginal right is claimed will only be relevant to the Aboriginal claim if the practice, custom or tradition in question can only be said to exist because of the influence of European culture. If the practice, custom or tradition was an integral part of the Aboriginal community's culture prior to contact with Europeans, the fact that that practice, custom or tradition continued after the arrival of Europeans, and adapted in response to their arrival, is not relevant to determination of the claim; European arrival and influence cannot be used to deprive an Aboriginal group of an otherwise valid claim to an Aboriginal right. On the other hand, where the practice, custom or tradition arose solely as a response to European influences then that practice, custom or tradition will not meet the standard for recognition of an Aboriginal right. ...
In considering whether a claim to an Aboriginal right has been made out, courts must look at both the relationship of an Aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant's distinctive culture and society. Courts must not focus so entirely on the relationship of Aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition of Aboriginal rights.
With these factors in mind I will now turn to the particular claim made by the appellant in this case to have been acting pursuant to an Aboriginal right.
... In this case the most accurate characterization of the appellant's position is that she is claiming an Aboriginal right to exchange fish for money or for other goods. She is claiming, in other words, that the practices, customs and traditions of the Sto:lo include as an integral part the exchange of fish for money or other goods.
... The appellant herself characterizes her claim as based on a right "to sufficient fish to provide for a moderate livelihood". In so doing the appellant relies on the "social" test adopted by Lambert JA at the British Columbia Court of Appeal. As has already been noted, however, a claim to an Aboriginal right cannot be based on the significance of an Aboriginal practice, custom or tradition to the Aboriginal community in question. ... [T]he appellant's claim cannot be characterized as based on an assertion that the Sto:lo's use of the fishery, and the practices, customs and traditions surrounding that use, had the significance of providing the Sto:lo with a moderate livelihood. It must instead be based on the actual practices, customs and traditions related to the fishery, here the custom of exchanging fish for money or other goods. ...
Having thus identified the nature of the appellant's claim, I turn to the fundamental question of the integral to a distinctive culture test: was the practice of exchanging fish for money or other goods an integral part of the specific distinctive culture of the Sto:lo prior to contact with Europeans? In answering this question it is necessary to consider the evidence presented at trial, and the findings of fact made by the trial judge, to determine whether the evidence and findings support the appellant's claim that the sale or trade of fish is an integral part of the distinctive culture of the Sto:lo.
It is a well-settled principle of law that when an appellate court reviews the decision of a trial judge that court must give considerable deference to the trial judge's findings of fact, particularly where those findings of fact are based on the trial judge's assessment of the testimony and credibility of witnesses. ...
In the case at bar, Scarlett Prov Ct J, the trial judge, made findings of fact based on the testimony and evidence before him, and then proceeded to make a determination as to whether those findings of fact supported the appellant's claim to the existence of an Aboriginal right. The second stage of Scarlett Prov Ct J's analysis -- his determination of the scope of the appellant's Aboriginal rights on the basis of the facts as he found them -- is a determination of a question of law which, as such, mandates no deference from this Court. The first stage of Scarlett Prov Ct J's analysis, however -- the findings of fact from which that legal inference was drawn -- do mandate such deference and should not be overturned unless made on the basis of a "palpable and overriding error". This is particularly the case given that those findings of fact were made on the basis of Scarlett Prov Ct J's assessment of the credibility and testimony of the various witnesses appearing before him. ...
The facts as found by Scarlett Prov Ct J do not support the appellant's claim that the exchange of salmon for money or other goods was an integral part of the distinctive culture of the Sto:lo. As has already been noted, in order to be recognized as an Aboriginal right, an activity must be of central significance to the culture in question -- it must be something which makes that culture what it is. The findings of fact made by Scarlett Prov Ct J suggest that the exchange of salmon for money or other goods, while certainly taking place in Sto:lo society prior to contact, was not a significant, integral or defining feature of that society.
First, Scarlett Prov Ct J found that, prior to contact, exchanges of fish were only "incidental" to fishing for food purposes. ... [W]hile the evidence clearly demonstrated that fishing for food and ceremonial purposes was a significant and defining feature of the Sto:lo culture, this is not sufficient, absent a demonstration that the exchange of salmon was itself a significant and defining feature of Sto:lo society, to demonstrate that the exchange of salmon is an integral part of Sto:lo culture.
Second, Scarlett Prov Ct J found that there was no "regularized trading system" amongst the Sto:lo prior to contact. ... [T]he significance of the absence of regularized trading systems amongst the Sto:lo arises ... from the fact that it indicates that the exchange of salmon was not widespread in Sto:lo society. Given that the exchange of salmon was not widespread it cannot be said that, prior to contact, Sto:lo culture was defined by trade in salmon; trade or exchange of salmon took place, but the absence of a market demonstrates that this exchange did not take place on a basis widespread enough to suggest that the exchange was a defining feature of Sto:lo society.
Third, the trade engaged in between the Sto:lo and the Hudson's Bay Company, while certainly of significance to the Sto:lo society of the time, was found by the trial judge to be qualitatively different from that which was typical of the Sto:lo culture prior to contact. As such, it does not provide an evidentiary basis for holding that the exchange of salmon was an integral part of Sto:lo culture. ... The trade of salmon between the Sto:lo and the Hudson's Bay Company does not have the necessary continuity with Sto:lo culture pre-contact to support a claim to an Aboriginal right to trade salmon. Further, the exchange of salmon between the Sto:lo and the Hudson's Bay Company can be seen as central or significant to the Sto:lo primarily as a result of European influences; activities which become central or significant because of the influence of European culture cannot be said to be Aboriginal rights.
Finally, Scarlett Prov Ct J found that the Sto:lo were at a band level of social organization rather than at a tribal level. As noted by the various experts, one of the central distinctions between a band society and a tribal society relates to specialization and division of labour. In a tribal society there tends to be specialization of labour -- for example, specialization in the gathering and trade of fish -- whereas in a band society division of labour tends to occur only on the basis of gender or age. The absence of specialization in the exploitation of the fishery is suggestive, in the same way that the absence of regularized trade or a market is suggestive, that the exchange of fish was not a central part of Sto:lo culture. ...
For these reasons, then, I would conclude that the appellant has failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo society which existed prior to contact. The exchange of fish took place, but was not a central, significant or defining feature of Sto:lo society. The appellant has thus failed to demonstrate that the exchange of salmon for money or other goods by the Sto:lo is an Aboriginal right recognized and affirmed under s. 35(1) of the Constitution Act, 1982.
Having concluded that the Aboriginal rights of the Sto:lo do not include the right to exchange fish for money or other goods, I would dismiss the appeal and affirm the decision of the Court of Appeal restoring the trial judge's conviction of the appellant for violating s. 61(1) of the Fisheries Act. There will be no order as to costs.
For the reasons given above, the constitutional question must be answered as follows:
Question: Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read on September 11, 1987, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, by reasons of the Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982, invoked by the appellant?
Answer: No.
While the narrow issue in this particular case deals with whether the Sto:lo, of which the appellant is a member, possess an Aboriginal right to fish which includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes, the broader issue is the interpretation of the nature and extent of constitutionally protected Aboriginal rights.
The Chief Justice concludes that the Sto:lo do not possess an Aboriginal right to exchange fish for money or other goods and that, as a result, the appellant's conviction under the Fisheries Act, RSC 1970, c F-14, should be upheld. Not only do I disagree with the result he reaches, but I also diverge from his analysis of the issue at bar, specifically as to his approach to defining Aboriginal rights and as to his delineation of the Aboriginal right claimed by the appellant. ...
In my view, the definition of Aboriginal rights as to their nature and extent must be addressed in the broader context of the historical Aboriginal reality in Canada. Therefore, before going into the specific analysis of Aboriginal rights protected under s. 35(1), a review of the legal evolution of Aboriginal history is in order.
It is commonly accepted that the first Aboriginal people of North America came from Siberia, over the Bering terrestrial bridge, some 12,000 years ago. They found a terra nullius and gradually began to explore and populate the territory. These people have always enjoyed, whether as nomadic or sedentary communities, some kind of social and political structure. Accordingly, it is fair to say that prior to the first contact with the Europeans, the native people of North America were independent nations, occupying and controlling their own territories, with a distinctive culture and their own practices, traditions and customs. ...
At the time of the first formal arrival of the Europeans, in the sixteenth
century, most of the territory of what is now Canada
was occupied and used by
Aboriginal people. From the earliest point, however, the settlers claimed
sovereignty in the name of their
home country. Traditionally, there are four
principles upon which states have relied to justify the assertion of
sovereignty over
new territories: see Brian Slattery, The Lands Rights of
Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of Their
Territories. These are: (1) conquest, (2) cession, (3) annexation,
and
(4) settlement, ie, acquisition of territory that was previously
unoccupied or is not recognized as belonging to another political
entity.
In the eyes of international law, the settlement thesis is the one rationale which can most plausibly justify European sovereignty over Canadian territory and the native people living on it (see Patrick Macklem, "Normative Dimensions of an Aboriginal Right of Self-Government" (1995), 21 Queen's LJ 173) although there is still debate as to whether the land was indeed free for occupation. See Brian Slattery, "Aboriginal Sovereignty and Imperial Claims" (1991), 29 Osgoode Hall LJ 681, and Michael Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution.
In spite of the sovereignty proclamation, however, the early practices of the British recognized Aboriginal title or rights and required their extinguishment by cession, conquest or legislation. ...
In R v Sparrow, [1990] 1 SCR 1075, Dickson CJ and La Forest J wrote the following regarding Crown sovereignty and British practices vis-a-vis Aboriginal people at p. 1103:
It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.
...
As a result, it has become accepted in Canadian law that Aboriginal title, and Aboriginal rights in general, derive from historic occupation and use of ancestral lands by the natives and do not depend on any treaty, executive order or legislative enactment. ...
Aboriginal people's occupation and use of North American territory was not static, nor, as a general principle, should be the Aboriginal rights flowing from it. Natives migrated in response to events such as war, epidemic, famine, dwindling game reserves, etc. Aboriginal practices, traditions and customs also changed and evolved, including the utilisation of the land, methods of hunting and fishing, trade of goods between tribes, and so on. The coming of Europeans increased this fluidity and development, bringing novel opportunities, technologies and means to exploit natural resources: see Brian Slattery, "Understanding Aboriginal Rights" (1987), 66 Can Bar Rev 727, at pp. 741-42. Accordingly, the notion of Aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time.
Aboriginal interests arising out of natives' original occupation and use of ancestral lands have been recognized in a body of common law rules referred to as the doctrine of Aboriginal rights: see Brian Slattery, "Understanding Aboriginal Rights" supra, at p. 732. These principles define the terms upon which the Crown acquired sovereignty over native people and their territories.
The concept of Aboriginal title, however, does not capture the entirety of the doctrine of Aboriginal rights. Rather, as its name indicates, the doctrine refers to a broader notion of Aboriginal rights arising out of the historic occupation and use of native ancestral lands, which relate not only to Aboriginal title, but also to the component elements of this larger right -- such as Aboriginal rights to hunt, fish or trap, and their accompanying practices, traditions and customs -- as well as to other matters, not related to land, that form part of a distinctive Aboriginal culture: see WIC Binnie, "The Sparrow Doctrine: Beginning of the End or End of the Beginning?" (1990), 15 Queen's LJ 217; and Douglas Sanders, "The Rights of the Aboriginal Peoples of Canada" (1983), 61 Can Bar Rev 314.
This brings me to the different type of lands on which Aboriginal rights can exist, namely reserve lands, Aboriginal title lands, and Aboriginal right lands: see Brian Slattery, "Understanding Aboriginal Rights", supra, at pp. 743-744. The common feature of these lands is that the Canadian Parliament and, to a certain extent, provincial legislatures have a general legislative authority over the activities of Aboriginal people, which is the result of the British assertion of sovereignty over Canadian territory. There are, however, important distinctions to draw between these types of lands with regard to the legislation applicable and claims of Aboriginal rights.
Reserve lands are those lands reserved by the Federal Government for the exclusive use of Indian people. ...
Aboriginal title lands are lands which the natives possess for occupation and use at their own discretion, subject to the Crown's ultimate title (see Guerin v The Queen, supra, at p. 382); federal and provincial legislation applies to Aboriginal title lands, pursuant to the governments' respective general legislative authority. ... As I have already noted elsewhere, the source of these rights is the historic occupation and use of ancestral lands by the natives.
Aboriginal title can also be founded on treaties concluded between the natives and the competent government: see Simon v The Queen, [1985] 2 SCR 387, and R v Horseman, [1990] 1 SCR 901. Where this occurs, the Aboriginal rights crystallized in the treaty become treaty rights and their scope must be delineated by the terms of the agreement. The rights arising out of a treaty are immune from provincial legislation -- even that enacted under s. 88 of the Indian Act -- unless the treaty incorporates such legislation, as in R v Badger, [1996] 1 SCR 771. A treaty, however, does not exhaust Aboriginal rights; such rights continue to exist apart from the treaty, provided that they are not substantially connected to the rights crystallized in the treaty or extinguished by its terms.
Finally, Aboriginal right lands are those lands on which only specific Aboriginal rights exist (eg, the right to hunt for food, social and ceremonial purposes) because the occupation and use by the particular group of Aboriginal people is too limited and, as a result, does not meet the criteria for the recognition, at common law, of Aboriginal title. In these cases, the Aboriginal rights on the land are restricted to residual portions of the Aboriginal title -- such as the rights to hunt, fish or trap -- or to other matters not connected to land; they do not, therefore, entail the full sui generis proprietary right to occupy and use the land.
... [The] instant case is confined to the recognition of an Aboriginal right and does not involve by-laws on a reserve or claims of Aboriginal title, nor does it relate to any treaty rights. The contention of the appellant is simply that the Sto:lo, of which she is one, possess an Aboriginal right to fish -- arising out of the historic occupation and use of their lands -- which includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes.
Section 35(1) of the Constitution Act, 1982 provides constitutional protection to Aboriginal interests arising out of the native historic occupation and use of ancestral lands through the recognition and affirmation of "existing Aboriginal and treaty rights of the Aboriginal peoples of Canada": see Brian Slattery, "First Nations and the Constitution: A Question of Trust" (1992), 71 Can Bar Rev 261, at p. 263. Consequently, as I shall examine in some detail, the general legislative authority over native activities is now limited and legislation which infringes upon existing Aboriginal or treaty rights must be justified.
...
The analysis of the issue before us must start with s. 35(1) of the Constitution Act, 1982, found in Part II of that Act entitled "Rights of the Aboriginal Peoples of Canada", which provides:
35. (1)The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
... The test set out in Sparrow includes three steps, namely: (1) the assessment and definition of an existing Aboriginal right (including extinguishment); (2) the establishment of a prima facie infringement of such right; and (3) the justification of the infringement. I shall briefly discuss each of them in turn.
The rights of Aboriginal people constitutionally protected in s. 35(1) are those in existence at the time of the enactment of the Constitution Act, 1982. However, the manner in which they were regulated in 1982 is irrelevant to the definition of Aboriginal rights because they must be assessed in their contemporary form; Aboriginal rights are not frozen in time: see Sparrow, at p. 1093. ... The onus is on the claimant to prove that he or she benefits from an existing Aboriginal right. I will return later to this first step to elaborate on the interpretation of the nature and extent of Aboriginal rights.
As regards the second step of the Sparrow test, when an existing Aboriginal right has been established, the claimant must demonstrate that the impugned legislation constitutes a prima facie infringement of the right. ... In Sparrow, Dickson CJ and La Forest J provided the following guidelines, at p. 1112, regarding infringement:
To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. ...
Thirdly, after the claimant has demonstrated that the legislation in question constitutes a prima facie infringement of his or her Aboriginal right, the onus then shifts again to the Crown to prove that the infringement is justified. Courts will be asked, at this stage, to balance and reconcile the conflicting interests of native people, on the one hand, and of the rest of Canadian society, on the other. Specifically, this last step of the Sparrow test requires the assessment of both the validity of the objective of the legislation and the reasonableness of the limitation. ...
In the case at bar, the issue relates only to the interpretation of the nature and extent of the Sto:lo's Aboriginal right to fish and whether it includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes; ie, the very first step of the Sparrow test, dealing with the assessment and definition of Aboriginal rights. ...
While I am in general agreement with the Chief Justice on the fundamental interpretative canons relating to Aboriginal law which he discussed, the application of those rules to his definition of Aboriginal rights under s. 35(1) of the Constitution Act, 1982 does not, in my view, sufficiently reflect them. For the sake of convenience, I will summarize them here.
First, as with all constitutional provisions, s. 35(1) must be given a generous, large and liberal interpretation in order to give full effect to its purposes: see, regarding the Constitution Act, 1867, Edwards v Attorney-General for Canada, [1930] AC 124 (PC); Attorney General of Quebec v Blaikie (No 1), [1979] 2 SCR 1016; Re Residential Tenancies Act, [1981] 1 SCR 714; in the context of the Charter, Hunter v Southam Inc, [1984] 2 SCR 145; R v Big M Drug Mart Ltd, [1985] 1 SCR 295; R v Keegstra, [1990] INSC 224; [1990] 3 SCR 697; and, particular to Aboriginal rights in s. 35(1), Sparrow, supra, at p. 1108, where Dickson CJ and La Forest J wrote that "s. 35(1) is a solemn commitment that must be given meaningful content". ...
Second, Aboriginal rights must be construed in light of the special trust relationship and the responsibility of the Crown vis-a-vis Aboriginal people: see Taylor, supra; and, Guerin, supra. This fiduciary obligation attaches because of the historic power and responsibility assumed by the Crown over Aboriginal people. ...
Finally, but most importantly, Aboriginal rights protected under s. 35(1) have to be interpreted in the context of the history and culture of the specific Aboriginal society and in a manner that gives the rights meaning to the natives. ...
Unlike the Chief Justice, I do not think it appropriate to qualify this proposition by saying that the perspective of the common law matters as much as the perspective of the natives when defining Aboriginal rights. ...
The crux of the debate at the British Columbia Court of Appeal in the present appeal, and in most of the appeals heard contemporaneously, lies in the application of this standard of "integral part of their distinctive culture" to defining the nature and extent of the particular Aboriginal right claimed to be protected in s. 35(1) of the Constitution Act, 1982. This broad statement of what characterizes Aboriginal rights must be elaborated and made more specific so that it becomes a defining criterion. In particular, two aspects must be examined in detail, namely (1) what are the necessary characteristics of Aboriginal rights, and (2) what is the period of time relevant to the assessment of such characteristics.
The issue of the nature and extent of Aboriginal rights protected under s. 35(1) is fundamentally about characterization. Which Aboriginal practices, traditions and customs warrant constitutional protection? It appears from the jurisprudence developed in the courts below (see the reasons of the British Columbia Court of Appeal and the decision in Delgamuukw v British Columbia (1993), 104 DLR (4th) 470) that two approaches to this difficult question have emerged. The first one, which the Chief Justice endorses, focuses on the particular Aboriginal practice, tradition or custom. The second approach, more generic, describes Aboriginal rights in a fairly high level of abstraction For the reasons that follow, I favour the latter approach.
The approach based on Aboriginal practices, traditions and customs considers only discrete parts of Aboriginal culture, separating them from the general culture in which they are rooted. The analysis turns on the manifestations of the "integral part of [Aboriginals'] distinctive culture". Further, on this view, what makes Aboriginal culture distinctive is that which differentiates it from non-Aboriginal culture. ...
Accordingly, if an activity is integral to a culture other than that of Aboriginal people, it cannot be part of Aboriginal people's distinctive culture. This approach should not be adopted for the following reasons.
First, on the pure terminology angle of the question, this position misconstrues the words "distinctive culture", used in the above excerpt of Sparrow, by interpreting it as if it meant "distinct culture". ... While "distinct" mandates comparison and evaluation from a separate vantage point, "distinctive" requires the object to be observed on its own. While describing an object's "distinctive" qualities may entail describing how the object is different from others (ie, "distinguishing"), there is nothing in the term that requires it to be plainly different. In fact, all that "distinctive culture" requires is the characterization of Aboriginal culture, not its differentiation from non-Aboriginal cultures. ...
Second, holding that what is common to both Aboriginal and non-Aboriginal cultures must necessarily be non-Aboriginal and thus not Aboriginal for the purpose of s. 35(1) is, to say the least, an overly majoritarian approach. This is diametrically opposed to the view propounded in Sparrow, supra, that the interpretation of Aboriginal rights be informed by the fiduciary responsibility of the Crown vis-a-vis Aboriginal people as well as by the Aboriginal perspective on the meaning of the rights. Such considerations command that practices, traditions and customs which characterize Aboriginal societies as the original occupiers and users of Canadian lands be protected, despite their common features with non-Aboriginal societies.
Finally, an approach based on a dichotomy between Aboriginal and non-Aboriginal practices, traditions and customs literally amounts to defining Aboriginal culture and Aboriginal rights as that which is left over after features of non-Aboriginal cultures have been taken away. Such a strict construction of constitutionally protected Aboriginal rights flies in the face of the generous, large and liberal interpretation of s. 35(1) of the Constitution Act, 1982 advocated in Sparrow.
A better approach, in my view, is to examine the question of the nature and extent of Aboriginal rights from a certain level of abstraction and generality.
A generic approach to defining the nature and extent of Aboriginal rights starts from the proposition that the notion of "integral part of [Aboriginals'] distinctive culture" introduced in Sparrow, supra, constitutes a general statement regarding the purpose of s. 35(1). Instead of focusing on a particular practice, tradition or custom, this conception refers to a more abstract and profound concept. ...
Accordingly, s. 35(1) should be viewed as protecting, not a catalogue of individualized practices, traditions or customs, as the Chief Justice does, but the "distinctive culture" of which Aboriginal activities are manifestations. Simply put, the emphasis would be on the significance of these activities to natives rather than on the activities themselves.
Although I do not claim to examine the question in terms of liberal enlightenment, an analogy with freedom of expression guaranteed in s. 2(b) of the Charter will illustrate this position. Section 2(b) of the Charter does not refer to an explicit catalogue of protected expressive activities, such as political speech, commercial expression or picketing, but involves rather the protection of the ability to express. ... [T]he constitutional guarantee of freedom of expression is conceptualized, not as protecting the possible manifestations of expression, but as preserving the fundamental purposes for which one may express oneself, ie, the rationales supporting freedom of expression.
Similarly, Aboriginal practices, traditions and customs protected under s. 35(1) should be characterized by referring to the fundamental purposes for which Aboriginal rights were entrenched in the Constitution Act, 1982. As I have already noted elsewhere, s. 35(1) constitutionalizes the common law doctrine of Aboriginal rights which recognizes Aboriginal interests arising out of the historic occupation and use of ancestral lands by natives. This, in my view, is how the notion of "integral part of a distinctive Aboriginal culture" should be contemplated. The "distinctive Aboriginal culture" must be taken to refer to the reality that, despite British sovereignty, Aboriginal people were the original organized society occupying and using Canadian lands: Calder v Attorney-General of British Columbia, supra, at p. 328, per Judson J; and, Guerin, supra, at p. 379, per Dickson J (as he then was).
This rationale should inform the characterization of Aboriginal activities which warrant constitutional protection as Aboriginal rights. ...
Further comments regarding this approach are in order. The criterion of "distinctive Aboriginal culture" should not be limited to those activities that only Aboriginal people have undertaken or that non-Aboriginal people have not. Rather, all practices, traditions and customs which are connected enough to the self-identity and self-preservation of organized Aboriginal societies should be viewed as deserving the protection of s. 35(1). Further, a generous, large and liberal construction should be given to these activities in order to give full effect to the constitutional recognition of the distinctiveness of Aboriginal culture. Finally, it is almost trite to say that what constitutes a practice, tradition or custom distinctive to native culture and society must be examined through the eyes of Aboriginal people, not through those of the non-native majority or the distorting lens of existing regulations.
...
The question of the period of time relevant to the recognition of Aboriginal rights relates to whether the practice, tradition or custom has to exist prior to a specific date, and also to the length of time necessary for an Aboriginal activity to be recognized as a right under s. 35(1). Here, again, two basic approaches have been advocated in the courts below (see the decisions of the British Columbia Court of Appeal in this case, and in Delgamuukw v British Columbia, supra, namely the "frozen right" approach and the "dynamic right" approach. An examination of each will show that the latter view is to be preferred.
The "frozen right" approach would recognize practices, traditions and customs -- forming an integral part of a distinctive Aboriginal culture -- which have long been in existence at the time of British sovereignty: see Slattery, "Understanding Aboriginal Rights", supra, at pp. 758-59. This requires the Aboriginal right claimant to prove two elements: (1) that the Aboriginal activity has continuously existed for "time immemorial", and (2) that it predated the assertion of sovereignty Defining existing Aboriginal rights by referring to pre-contact or pre-sovereignty practices, traditions and customs implies that Aboriginal culture was crystallized in some sort of "Aboriginal time" prior to the arrival of Europeans. Contrary to the Chief Justice, I do not believe that this approach should be adopted, for the following reasons. ...
First, relying on the proclamation of sovereignty by the British imperial power as the "cut-off" for the development of Aboriginal practices, traditions and customs overstates the impact of European influence on Aboriginal communities. ... Taking British sovereignty as the turning point in Aboriginal culture assumes that everything that the natives did after that date was not sufficiently significant and fundamental to their culture and social organization. This is no doubt contrary to the perspective of Aboriginal people as to the significance of European arrival on their rights.
Second, crystallizing Aboriginal practices, traditions and customs at the time of British sovereignty creates an arbitrary date for assessing existing Aboriginal rights. ...
As a third point, in terms of proof, the "frozen right" approach imposes a heavy and unfair burden on the natives ... which the relaxation of evidentiary standards suggested by the Chief Justice is insufficient to attenuate. In fact, it is contrary to the interpretative approach propounded by this Court in Sparrow, supra, which commands a purposive, liberal and favourable construction of Aboriginal rights.
Moreover, when examining the wording of the constitutional provisions regarding Aboriginal rights, it appears that the protection should not be limited to pre-contact or pre-sovereignty practices, traditions and customs. Section 35(2) of the Constitution Act, 1982 provides that the `Aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada. Obviously, there were no Metis people prior to contact with Europeans as the Metis are the result of intermarriage between natives and Europeans. ... As a result, according to the text of the Constitution of Canada, it must be possible for Aboriginal rights to arise after British sovereignty, so that Metis people can benefit from the constitutional protection of s. 35(1). The case by case application of s. 35(2) of the Constitution Act, 1982 proposed by the Chief Justice does not address the issue of the interpretation of s. 35(2).
Finally, the "frozen right" approach is inconsistent with the position taken by this Court in Sparrow, supra, which refused to define existing Aboriginal rights so as to incorporate the manner in which they were regulated in 1982. ...
A better position, in my view, would be evolutive in character and give weight to the perspective of Aboriginal people. As the following analysis will demonstrate, a "dynamic right" approach to the question will achieve these objectives.
The "dynamic right" approach to interpreting the nature and extent of Aboriginal rights starts from the proposition that "the phrase `existing Aboriginal rights' must be interpreted flexibly so as to permit their evolution over time" (Sparrow, supra, at p. 1093). ...
Consequently, in order for an Aboriginal right to be recognized and affirmed under s. 35(1), it is not imperative for the practices, traditions and customs to have existed prior to British sovereignty and, a fortiori, prior to European contact, which is the cut-off date favoured by the Chief Justice. Rather, the determining factor should only be that the Aboriginal activity has formed an integral part of a distinctive Aboriginal culture -- ie, to have been sufficiently significant and fundamental to the culture and social organization of the Aboriginal group -- for a substantial continuous period of time as defined above. ...
In short, the substantial continuous period of time necessary to the
recognition of Aboriginal rights should be assessed based on
(1) the type of
Aboriginal practices, traditions and customs, (2) the particular Aboriginal
culture and society, and (3) the reference
period of 20 to 50 years. Such a
time frame does not minimize the fact that in order to benefit from
s.
35(1) protection, Aboriginal activities must still form the core of the lives
of native people; this surely cannot be characterized
as an extreme position,
as my colleague McLachlin J affirms.
In the end, the proposed general guidelines for the interpretation of the nature and extent of Aboriginal rights constitutionally protected under s. 35(1) can be summarized as follows. The characterization of Aboriginal rights should refer to the rationale of the doctrine of Aboriginal rights, ie, the historic occupation and use of ancestral lands by the natives. Accordingly, Aboriginal practices, traditions and customs would be recognized and affirmed under s. 35(1) of the Constitution Act, 1982 if they are sufficiently significant and fundamental to the culture and social organization of a particular group of Aboriginal people Furthermore, the period of time relevant to the assessment of Aboriginal activities should not involve a specific date, such as British sovereignty, which would crystallize Aboriginal's distinctive culture in time. Rather, as Aboriginal practices, traditions and customs change and evolve, they will be protected in s. 35(1) provided that they have formed an integral part of the distinctive Aboriginal culture for a substantial continuous period of time.
...
At the British Columbia Court of Appeal, the majority framed the issue as being whether the Sto:lo possess an Aboriginal right to fish which includes the right to make commercial use of the fish. ...
In Horseman, supra this Court examined the scope of the Horse Lakes Indian Band's right to hunt under Treaty No. 8, 1899, as amended by the Natural Resources Transfer Agreement, 1930 (Alberta) ("NRTA"). In that case, the appellant, Bert Horseman, was charged with the offence of unlawfully "trafficking" in wildlife, contrary to s. 42 of the Wildlife Act, RSA 1980, c W-9, which was defined as "any single act of selling, offering for sale, buying, bartering, soliciting or trading". The appellant had killed a grizzly bear in self-defence, while legally hunting moose for food, and he sold the bear hide because he was in need of money to support his family. Horseman argued that the Wildlife Act did not apply to him because he was within his Treaty 8 rights when he sold the grizzly hide.
Cory J (Lamer, La Forest and Gonthier JJ concurring), for the majority, ... upheld the findings of the courts below that the sale of the grizzly hide constituted a commercial hunting activity which, as a consequence, fell outside the ambit of the treaty rights to hunt. ...
Wilson J (Dickson CJ and L'Heureux-Dube J concurring), dissenting, was of the view that, from an Aboriginal perspective, a simple dichotomy between hunting for domestic use and hunting for commercial purposes should not be determinative of the treaty rights. ...
In sum, as Sparrow, supra, suggests, when assessing whether Aboriginal practices, traditions and customs have been sufficiently significant and fundamental to the culture and social organization of a particular group of Aboriginal people for a substantial continuing period of time, the purposes for which such activities are undertaken should be considered highly relevant. An Aboriginal activity can form an integral part of the distinctive culture of a group of Aboriginal people if it is done for certain purposes -- eg, for livelihood, support and sustenance purposes. However, the same activity could be considered not to be part of their distinctive Aboriginal culture if it is done for other purposes -- eg, for purely commercial purposes. The Chief Justice fails to draw this distinction, which I believe to be highly relevant, although he agrees that the Court of Appeal mischaracterized the Aboriginal right here claimed.
This contemplation of Aboriginal or treaty rights based on the purpose of the activity is aimed at facilitating the delineation of the rights claimed as well as the identification and evaluation of the evidence presented in their support. However, as in Horseman, supra, to respect Aboriginal perspective on the matter, the purposes for which Aboriginal activities are undertaken cannot and should not bestrictly compartmentalized. Rather, in my view, such purposes should be viewed on a spectrum, with Aboriginal activities undertaken solely for food, at one extreme, those directed to obtaining purely commercial profit, at the other extreme, and activities relating to livelihood, support and sustenance, at the centre.
This being said, in this case, as I have already noted elsewhere, the British Columbia Court of Appeal framed the issue as being one of whether the Sto:lo possess an Aboriginal right to fish which includes the right to make commercial use of the fish. To state the question in that fashion not only disregards the above distinction between the purposes for which fish can be sold, traded and bartered but also mischaracterizes the facts of this case, misconceives the contentions of the appellant and overlooks the legislative provision here under constitutional challenge.
First, the facts giving rise to this case do not support the Court of Appeal's framing of the issue in terms of commercial fishing. The appellant, Dorothy Van der Peet, was charged with the offence of selling salmon which were legally caught by her common law spouse and his brother. The appellant sold ten salmon. There is no evidence as to the purposes of the sale or as to what the money was going to be used for. It is clear, however, that the offending transaction proven by the Crown is not part of a commercial venture, nor does it constitute an act directed at profit. ...
Furthermore, the appellant did not argue in the courts below or before this Court that the Sto:lo possess an Aboriginal right to fish for commercial purposes. The submissions were only to the effect that the Sto:lo's Aboriginal right to fish includes the right to sell, trade and barter fish for their livelihood, support and sustenance. ... It is well settled that in framing the issue in a case courts cannot overlook the contentions of the parties; in the case at bar, the appellant did not seek the recognition and affirmation of an Aboriginal right to fish for commercial purposes.
Finally, the legislative provision under constitutional challenge is not only aimed at commercial fishing, but also forbids both commercial and non-commercial sale, trade and barter of fish. ...
Section 27(5) prohibits the sale, trade and barter of fish for livelihood,
support and sustenance, and we must determine whether,
as it stands, this
provision complies with the constitutional protection afforded to Aboriginal
rights under
s. 35(1) of the Constitution Act, 1982.
An Aboriginal activity does not need to be undertaken for livelihood, support and sustenance purposes to benefit from s. 35(1) protection. In other words, the above distinction based on the purposes of Aboriginal activities does not impose an additional burden on the claimant of an Aboriginal right. ... In fact, the consideration of Aboriginal activities based on their purposes is simply aimed at facilitating the delineation of the Aboriginal rights claimed as well as the identification and evaluation of the evidence presented in support of the rights.
In the instant case, this Court is only required to decide whether the Sto:lo's right to fish includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes, and not whether it includes the right to make commercial use of the fish. In that respect, it is necessary to review the evidence to determine whether such activities have formed an integral part of the Sto:lo's distinctive Aboriginal culture for a substantial continuous period of time so as to give rise to an Aboriginal right. That is what I now propose to do.
The question here is whether the particular group of Aboriginal people, the Sto:lo Band, of which the appellant is a member, has engaged in the sale, trade and barter of fish for livelihood, support and sustenance purposes, in a manner sufficiently significant and fundamental to their culture and social organization, for a substantial continuous period of time, entitling them to benefit from a constitutionally protected Aboriginal right to that extent.
At trial, after having examined the historical evidence presented by the parties, Scarlett Prov Ct J arrived at the following conclusions (at p. 160):
This court was not satisfied upon the evidence that Aboriginal trade in salmon took place in any regularized or market sense. Oral evidence demonstrated that trade was incidental to fishing for food purposes. Anthropological and archaeological evidence was in conflict. ... This court concludes on the evidence, therefore, that the Sto:lo Aboriginal right to fish for food and ceremonial purposes does not include the right to sell such fish.
I agree with the Chief Justice that it is well established, both in criminal and civil contexts, that an appellate court will not disturb the findings of fact made by a trial judge in the absence of "some palpable and overriding error which affected his [or her] assessment of the facts". ...
At the British Columbia Supreme Court, Selbie J was of the view that the trial judge committed such an error and, as a consequence, substituted his own findings of fact (at paras. 15 and 16): ...
The Indian right to trade his fish is not frozen in time to doing so only by the medium of the potlatch and the like; he is entitled, subject to extinguishment or justifiable restrictions, to evolve with the times and dispose of them by modern means, if he so chooses, such as the sale of them for money. It is thus my view that the Aboriginal right of the Sto:lo peoples to fish includes the right to sell, trade or barter them after they have been caught. It is my view that the learned judge imposed a verdict inconsistent with the evidence and the weight to be given it.
At the British Columbia Court of Appeal, Macfarlane JA (Taggart JA concurring) and Wallace JA, for the majority, took the position that an Aboriginal right would be recognized only if the manifestations of the distinctive Aboriginal culture -- ie, the particular Aboriginal practices, traditions or customs -- were particular to native culture and not common to non-Aboriginal societies. Further, the evidence would need to show that the activities in question have been engaged in for time immemorial at the time sovereignty was asserted by Britain. ...
The majority of the Court of Appeal agreed with the trial judge's findings and held that the Sto:lo's practices, traditions and customs did not justify the recognition of an Aboriginal right to fish for commercial purposes.
Lambert JA, in dissent, applied what he called a "social" form of description of Aboriginal rights, one which does not "freeze" native practices, traditions and customs in time. In light of the evidence, he concluded that the distinctive Aboriginal culture of the Sto:lo warranted the recognition of an Aboriginal right to sell, trade and barter fish in order to provide them with a "moderate livelihood". ...
It appears ... that the conclusions on the findings of fact relating to whether the Sto:lo possess an Aboriginal right to sell, trade and barter fish varied depending on the delineation of the Aboriginal right claimed and on the approach used to interpreting such right. The trial judge, as well as the majority of the Court of Appeal, framed the issue as being whether the Sto:lo possess an Aboriginal right to fish for commercial purposes and used an approach based on the manifestations of distinctive Aboriginal culture which differentiates between Aboriginal and non-Aboriginal practices and which "freezes" Aboriginal rights in a pre-contact or pre-sovereignty Aboriginal time. The summary appeal judge, as well as Lambert JA at the Court of Appeal, described the issue in terms of whether the Sto:lo possess an Aboriginal right to sell, trade and barter fish for livelihood. Further, they examined the Aboriginal right claimed at a certain level of abstraction, which focused on the distinctive Aboriginal culture of the Sto:lo and which was evolutive in nature.
As I have already noted elsewhere, the issue in the present appeal is whether the Sto:lo's Aboriginal right to fish includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes. Accordingly, the trial judge and the majority of the Court of Appeal erred in framing the issue. Furthermore, it is my view that the nature and extent of Aboriginal rights protected under s. 35(1) of the Constitution Act, 1982 must be defined by referring to the notion of "integral part of a distinctive Aboriginal culture", ie, whether an Aboriginal practice, tradition or custom has been sufficiently significant and fundamental to the culture and social organization of the particular group of Aboriginal people for a substantial continuous period of time. Therefore, by using a "frozen right" approach focusing on Aboriginal practice to defining the nature and extent of the Aboriginal right, Scarlett Prov Ct J and the majority of the Court of Appeal were also in error.
Consequently, when the trial judge assessed the historical evidence presented at trial, he asked himself the wrong questions and erred as to the proper evidentiary basis necessary to establish an Aboriginal right under s. 35(1) of the Constitution Act, 1982. He thus made no finding of fact, or insufficient findings of fact, as regards the Sto:lo's distinctive Aboriginal culture relating to the sale, trade and barter of fish for livelihood, support and sustenance purposes. It is also noteworthy that the first appellate judge, who asked himself the right questions, made diametrically opposed findings of fact on the evidence presented at trial.
The result of these palpable and overriding errors, which affected the trial judge's assessment of the facts, is that an appellate court is justified in intervening -- as did the summary appeal judge -- in the trial judge's findings of fact and substituting its own assessment of the evidence presented at trial: see Stein v The Ship "Kathy K", supra. ...
The Sto:lo, who are part of the Coast Salish Nation, have lived in their villages along the Fraser River from Langley to above Yale. They were an organized society, whose main socio-political unit was the extended family. The Fraser River was their main source of food the year around and, as such, the Sto:lo considered it to be sacred. Archaeological evidence demonstrates that the Sto:lo have relied on the fishery for centuries. ... The Sto:lo used many methods and devices to fish salmon, such as dip-nets, harpoons, weirs, traps and hooks. ... [A]lthough fresh fish were procurable year around, they dried or smoked large amounts at the end of the summer to use for the hard times of winter. ...
It seems well founded to conclude, as the expert witnesses for the respondent did, that no formalized market system of trade of salmon existed in the original Sto:lo society because, as a matter of fact, organized large scale trade in salmon appears to run contrary to the Sto:lo's Aboriginal culture. They viewed salmon as more than just food; they treated salmon with a degree of respect since the Sto:lo community was highly reliant and dependant on the fish resources. On the one hand, the Sto:lo pursued salmon very aggressively in order to get them for livelihood, support and sustenance purposes. On the other, however, they were sufficiently mindful not to exploit the abundance of the river and they taught their children a thoughtful attitude towards salmon and also how to conserve them. ...
In short, the fishery has always provided a focus for life and livelihood for the Sto:lo and they have always traded salmon for the sustenance and support of themselves and their families. Accordingly, to use the terminology of the test propounded above, 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 Sto:lo. ...
As far as the issue here is concerned, the sale, trade and barter of fish for livelihood, support and sustenance purposes have always been sufficiently significant and fundamental to the culture and social organization of the Sto:lo. This conclusion is no doubt in line with the perspective of the Sto:lo regarding the importance of the trade of salmon in their society. Consequently, the criterion regarding the characterization of Aboriginal rights protected under s. 35(1) of the Constitution Act, 1982 is met.
Furthermore, there is no doubt that these activities did form part of the Sto:lo's distinctive Aboriginal culture for a substantial continuous period of time. In that respect, we must consider the type of Aboriginal practices, traditions and customs, the particular Aboriginal culture and society, and the reference period of 20 to 50 years.
Here, the historical evidence shows that the Sto:lo's practices, traditions and customs relating to the trade of salmon for livelihood, support and sustenance purposes have existed for centuries before the arrival of Europeans. As well, it appears that such activities have continued, though in modernized forms, until the present day. Accordingly, the time requirement for the recognition of an Aboriginal right is also met in this case.
As a consequence, I conclude that the Sto:lo Band, of which the appellant is a member, possess an Aboriginal right to sell, trade and barter fish for livelihood, support and sustenance purposes. Under s. 35(1) of the Constitution Act, 1982 this right is protected.
In the result, I would allow the appeal on the question of whether the Sto:lo possess an Aboriginal right to fish which includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes. The question of the extinguishment of such right, as well as the issues of prima facie infringement and justification, must be remitted to trial since there is insufficient evidence to enable this Court to decide upon them. Consequently, the constitutional question can only be answered partially:
Question: Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read on September 11, 1987, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, by reasons of the Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
Answer: The Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant, are recognized and the question of whether s. 27(5) of the British Columbia Fishery (General) Regulations is of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, will depend on the issues of extinguishment, prima facie infringement and justification as determined in a new trial.
There will be no costs to either party.
My conclusions on this appeal may be summarized as follows. The issue of what constitutes an Aboriginal right must, in my view, be answered by looking at what the law has historically accepted as fundamental Aboriginal rights. These encompass the right to be sustained from the land or waters upon which an Aboriginal people have traditionally relied for sustenance. Trade in the resource to the extent necessary to maintain traditional levels of sustenance is a permitted exercise of this right. The right endures until extinguished by treaty or otherwise. The right is limited to the extent of the Aboriginal people's historic reliance on the resource, as well as the power of the Crown to limit or prohibit exploitation of the resource incompatible with its responsible use. Applying these principles, I conclude that the Sto:lo possess an Aboriginal right to fish commercially for purposes of basic sustenance, that this right has not been extinguished, that the regulation prohibiting the sale of any fish constitutes a prima facie infringement of it, and that this infringement is not justified. Accordingly, I conclude that the appellant's conviction must be set aside.
1. Do the Sto:lo Possess an Aboriginal Right to Sell Fish Protected under s. 35(1) of the Constitution Act, 1982?
A. Is a Prima Facie Right Established?
I turn first to the principles which govern the inquiry into the existence of an Aboriginal right.
This Court in Sparrow discussed the dual significance of s. 35(1) of the Constitution Act, 1982 in the context of fishing. Section 35(1) is significant, first, because it entrenches Aboriginal rights as of the date of its adoption in 1982. Prior to that date, Aboriginal rights to fish were subject to regulation and extinguishment by unilateral government act. After the adoption of s. 35, these rights can be limited only by treaty. But s. 35(1) is significant in a second, broader sense. It may be seen as recognition of the right of Aboriginal peoples to fair recognition of Aboriginal rights and settlement of Aboriginal claims. ...
It may not be wrong to assert, as the Chief Justice does, that the dual purposes of s. 35(1) are first to recognize the fact that the land was occupied prior to European settlement and second, to reconcile the assertion of sovereignty with this prior occupation. But it is, with respect, incomplete. ... [S] 35(1) recognises not only prior Aboriginal occupation, but also a prior legal regime giving rise to Aboriginal rights which persist, absent extinguishment. And it seeks not only to reconcile these claims with European settlement and sovereignty but also to reconcile them in a way that provides the basis for a just and lasting settlement of Aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with Aboriginal peoples. ...
To summarize, a court approaching the question of whether a particular practice is the exercise of a constitutional Aboriginal right under s. 35(1) must adopt an approach which: (1) recognizes the dual purposes of s. 35(1) (to preclude extinguishment and to provide a firm foundation for settlement of Aboriginal claims); (2) is liberal and generous toward Aboriginal interests; (3) considers the Aboriginal claim in the context of the historic way of life of the people asserting it; and (4) above all, is true to the position of the Crown throughout Canadian history as trustee or fiduciary for the first peoples of this country.
The first step is to ascertain the Aboriginal right which is asserted by Mrs Van der Peet. Are we concerned with the right to fish, the right to sell fish on a small sustenance-related level, or commercial fishing?
The Chief Justice and Justice L'Heureux-Dube state that this appeal does not raise the issue of the right of the Sto:lo to engage in commercial fishery. They argue that the sale of one or two fish to a neighbour cannot be considered commerce, and that the British Columbia courts erred in treating it as such.
I agree that this case was defended on the ground that the fish sold by Mrs Van der Peet were sold for purposes of sustenance. This was not a large corporate money-making activity. In the end, as will be seen, I agree with L'Heureux-Dube J that a large operation geared to producing profits in excess of what the people have historically taken from the river might not be constitutionally protected.
This said, I see little point in labelling Mrs Van der Peet's sale of fish something other than commerce. When one person sells something to another, that is commerce. Commerce may be large or small, but commerce it remains. On the view I take of the case, the critical question is not whether the sale of the fish is commerce or non-commerce, but whether the sale can be defended as the exercise of a more basic Aboriginal right to continue the Aboriginal people's historic use of the resource.
Making an artificial distinction between the exchange of fish for money or other goods on the one hand and for commercial purposes on the other, may have serious consequences, if not in this case, in others. If the Aboriginal right at issue is defined as the right to trade on a massive, modern scale, few peoples may be expected to establish a commercial right to fish. As the Chief Justice observes in R v NTC Smokehouse Ltd, SCC, No. 23800, at para. 20, "[t]he claim to an Aboriginal right to exchange fish commercially places a more onerous burden" on the Aboriginal claimant "than a claim to an Aboriginal right to exchange fish for money or other goods". In the former case, the trade must be shown to have existed pre-contact "on a scale best characterized as commercial". (at para. 20) With rare exceptions (see the evidence in R v Gladstone, SCC, No 23801, released concurrently) Aboriginal societies historically were not interested in massive sales. Even if they had been, their societies did not afford them mass markets.
It is necessary to distinguish at the outset between an Aboriginal right and the exercise of an Aboriginal right. Rights are generally cast in broad, general terms. They remain constant over the centuries. The exercise of rights, on the other hand, may take many forms and vary from place to place and from time to time.
If a specific modern practice is treated as the right at issue, the analysis may be foreclosed before it begins. This is because the modern practice by which the more fundamental right is exercised may not find a counterpart in the Aboriginal culture of two or three centuries ago. So if we ask whether there is an Aboriginal right to a particular kind of trade in fish, ie, large-scale commercial trade, the answer in most cases will be negative. On the other hand, if we ask whether there is an Aboriginal right to use the fishery resource for the purpose of providing food, clothing or other needs, the answer may be quite different. Having defined the basic underlying right in general terms, the question then becomes whether the modern practice at issue may be characterized as an exercise of the right.
This is how we reconcile the principle that Aboriginal rights must be ancestral rights with the uncompromising insistence of this Court that Aboriginal rights not be frozen. The rights are ancestral; they are the old rights that have been passed down from previous generations. The exercise of those rights, however, takes modern forms. To fail to recognize the distinction between rights and the contemporary form in which the rights are exercised is to freeze Aboriginal societies in their ancient modes and deny to them the right to adapt, as all peoples must, to the changes in the society in which they live.
I share the concern of L'Heureux-Dube J that the Chief Justice defines the rights at issue with too much particularity, enabling him to find no Aboriginal right where a different analysis might find one. By insisting that Mrs Van der Peet's modern practice of selling fish be replicated in pre-contact Sto:lo practices, he effectively condemns the Sto:lo to exercise their right precisely as they exercised it hundreds of years ago and precludes a finding that the sale constitutes the exercise of an Aboriginal right.
To constitute a right under s. 35(1) of the Constitution Act, 1982, the right must be of constitutional significance. A right of constitutional significance may loosely be defined as a right which has priority over ordinary legal principles. It is a maxim which sets the boundaries within which the law must operate. While there were no formal constitutional guarantees of Aboriginal rights prior to 1982, we may nevertheless discern certain principles relating to Aboriginal peoples which were so fundamental as to have been generally observed by those charged with dealing with Aboriginal peoples and with making and executing the laws that affected them.
The activity for which constitutional protection is asserted in this case is selling fish caught in the area of the Fraser River where the Sto:lo traditionally fished for the purpose of sustaining the people. The question is whether this activity may be seen as the exercise of a right which has either been recognized or which so resembles a recognized right that it should, by extension of the law, be so recognized.
... The Chief Justice stipulates that for a practice to qualify as an Aboriginal right it must be traceable to pre-contact times and be identifiable as an "integral" aspect of the group's culture at that early date. ...
L'Heureux-Dube J, by contrast, minimizes the historic origin of the alleged right. For her, all that is required is that the practice asserted as a right have constituted an integral part of the group's culture and social organization for a period of at least 20 to 50 years, and that it continue to be an integral part of the culture at the time of the assertion of the right.
My own view falls between these extremes. I agree with the Chief Justice that history is important. A recently adopted practice would generally not qualify as being Aboriginal. Those things which have in the past been recognized as Aboriginal rights have been related to the traditional practices of Aboriginal peoples. For this reason, this Court has always been at pains to explore the historical origins of alleged Aboriginal rights. ...
I cannot agree with the Chief Justice, however, that it is essential that a practice be traceable to pre-contact times for it to qualify as a constitutional right. Aboriginal rights find their source not in a magic moment of European contact, but in the traditional laws and customs of the Aboriginal people in question. ...
My concern is that we not substitute an inquiry into the precise moment of first European contact -- an inquiry which may prove difficult -- for what is really at issue, namely the ancestral customs and laws observed by the indigenous peoples of the territory. For example, there are those who assert that Europeans settled the eastern maritime regions of Canada in the 7th and 8th century AD. To argue that Aboriginal rights crystallized then would make little sense; the better question is what laws and customs held sway before superimposition of European laws and customs. ... .This approach accommodates the specific inclusion in s. 35(1) of the Constitution Act, 1982 of the Aboriginal rights of the Metis people, the descendants of European explorers and traders and Aboriginal women.
Not only must the proposed Aboriginal right be rooted in the historical laws or customs of the people, there must also be continuity between the historic practice and the right asserted. ...
The continuity requirement does not require the Aboriginal people to provide a year-by-year chronicle of how the event has been exercised since time immemorial. Indeed, it is not unusual for the exercise of a right to lapse for a period of time. Failure to exercise it does not demonstrate abandonment of the underlying right. All that is required is that the people establish a link between the modern practice and the historic Aboriginal right. ...
Aboriginal peoples, like other peoples, define themselves through a myriad of activities, practices and claims. A few of these, the Canadian Charter of Rights and Freedoms tells us, are so fundamental that they constitute constitutional "rights" of such importance that governments cannot trench on them without justification. The problem before this Court is how to determine what activities, practices and claims fall within this class of constitutionally protected rights.
The first and obvious category of constitutionally protected Aboriginal rights and practices are those which had obtained legal recognition prior to the adoption of s. 35(1) of the Constitution Act, 1982. Section 35(1) confirms "existing" Aboriginal rights. Rights granted by treaties or recognized by the courts prior to 1982 must, it follows, remain rights under s. 35(1).
But Aboriginal rights under s. 35(1) are not confined to rights formally recognized by treaty or the courts before 1982. As noted above, this Court has held that s. 35(1) "is not just a codification of the case law on Aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for Aboriginal peoples": Sparrow, at p. 1106, quoting Noel Lyon, An Essay on Constitutional Interpretation (1988), Osgoode Hall LJ 95, at p. 100. This poses the question of what new, previously unrecognized Aboriginal rights may be asserted under s. 35(1).
The Chief Justice defines Aboriginal rights as specific pre-contact practices which formed an "integral part" of the Aboriginal group's "specific distinct culture". L'Heureux-Dube J, adopting a "dynamic" rights approach, extends Aboriginal rights to any activity, broadly defined, which forms an integral part of a distinctive Aboriginal group's culture and social organization, regardless of whether the activity pre-dates colonial contact or not. In my respectful view, while both these approaches capture important facets of Aboriginal rights, neither provides a satisfactory test for determining whether an Aboriginal right exists.
... The governing concept of integrality comes from a description in the Sparrow case where the extent of the Aboriginal right (to fish for food) was not seriously in issue. It was never intended to serve as a test for determining the extent of disputed exercises of Aboriginal rights.
My first concern is that the proposed test is too broad to serve as a legal distinguisher between constitutional and non-constitutional rights. While the Chief Justice in the latter part of his reasons seems to equate "integral" with "not incidental", the fact remains that "integral" is a wide concept, capable of embracing virtually everything that an Aboriginal people customarily did. ... The Chief Justice attempts to narrow the concept of "integral" by emphasizing that the proposed right must be part of what makes the group "distinctive", the "specific" people which they are, stopping short, however, of asserting that the practice must be unique to the group and adhere to none other. ...
The problem of overbreadth ... brings me to my second concern, the problem of indeterminacy. To the extent that one attempts to narrow the test proposed by the Chief Justice by the addition of concepts of distinctiveness, specificity and centrality, one encounters the problem that different people may entertain different ideas of what is distinctive, specific or central. To use such concepts as the markers of legal rights is to permit the determination of rights to be coloured by the subjective views of the decision-maker rather than objective norms, and to invite uncertainty and dispute as to whether a particular practice constitutes a legal right.
Finally, the proposed test is, in my respectful opinion, too categorical. Whether something is integral or not is an all or nothing test. Once it is concluded that a practice is integral to the people's culture, the right to pursue it obtains unlimited protection, subject only to the Crown's right to impose limits on the ground of justification. In this appeal, the Chief Justice's exclusion of "commercial fishing" from the right asserted masks the lack of internal limits in the integral test. But the logic of the test remains ineluctable, for all that: assuming that another people in another case establishes that commercial fishing was integral to its ancestral culture, that people will, on the integral test, logically have an absolute priority over non-Aboriginal and other less fortunate Aboriginal fishers, subject only to justification. All others, including other native fishers unable to establish commercial fishing as integral to their particular cultures, may have no right to fish at all.
... The historically based test for Aboriginal rights which I propose, by contrast, possesses its own internal limits and adheres more closely to the principles that animated Sparrow, as I perceive them.
... In my view, the better approach to defining Aboriginal rights is an empirical approach. Rather than attempting to describe a priori what an Aboriginal right is, we should look to history to see what sort of practices have been identified as Aboriginal rights in the past. ...
Just as there are two fundamental types of scientific reasoning -- reasoning from first principles and empirical reasoning from experience -- so there are two types of legal reasoning. The approach adopted by the Chief Justice and L'Heureux-Dube J in this appeal may be seen as an example of reasoning from first principles. The search is for a governing principle which will control all future cases. Given the complexity and sensitivity of the issue of defining hitherto undefined Aboriginal rights, the pragmatic approach typically adopted by the common law -- reasoning from the experience of decided cases and recognized rights -- has much to recommend it ...
... For centuries, it has been established that upon asserting sovereignty the British Crown accepted the existing property and customary rights of the territory's inhabitants. ...
Most recently in Mabo, the Australian High Court, after a masterful review of Commonwealth and American jurisprudence on the subject, concluded that the Crown must be deemed to have taken the territories of Australia subject to existing Aboriginal rights in the land, even in the absence of acknowledgment of those rights. ...
In Canada, the Courts have recognized the same principle. ... This Court's judgment in Sparrow, supra, re-affirmed that approach.
This much is clear: the Crown, upon discovering and occupying a "new" territory, recognized the law and custom of the Aboriginal societies it found and the rights in the lands they traditionally occupied that these supported. At one time it was suggested that only legal interests consistent with those recognised at common law would be recognized. However, as Brennan J points out in Mabo, at p. 59, that rigidity has been relaxed since the decision of the Privy Council in Tijani v Secretary, Southern Nigeria, [1921] 2 AC 399, "[t]he general principle that the common law will recognise a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title."
It may now be affirmed with confidence that the common law accepts all types of Aboriginal interests, "even though those interests are of a kind unknown to English law": per Lord Denning in Oyekan, supra, at p. 788. ... It follows that the Crown in Canada must be taken as having accepted existing native laws and customs and the interests in the land and waters they gave rise to, even though they found no counterpart in the law of England. In so far as an Aboriginal people under internal law or custom had used the land and its waters in the past, so it must be regarded as having the continuing right to use them, absent extinguishment or treaty.
This much appears from The Royal Proclamation (1763), RSC, 1985, App II, No 1, which set out the rules by which the British proposed to govern the territories of much of what is now Canada. The Proclamation, while not the sole source of Aboriginal rights, recognized the presence of Aboriginals as existing occupying peoples. It further recognized that they had the right to use and alienate the rights they enjoyed the use of those territories. ... It stipulated that Aboriginal people not be permitted to sell their land directly but only through the intermediary of the Crown. The purpose of this stipulation was to ensure that the Aboriginal peoples obtained a fair exchange for the rights they enjoyed in the territories on which they had traditionally lived -- an exchange which would ensure the sustenance not only of the current generation but also of generations to come. (Guerin, supra, at p. 376; see also Brian Slattery, "Understanding Aboriginal Rights", (1987) 66 Can Bar Rev 727).
The stipulation against direct sale to Europeans was coupled with a policy of entering into treaties with various Aboriginal peoples. The treaties typically sought to provide the people in question with a land base, termed a reserve, as well as other benefits enuring to the signatories and generations to come -- cash payments, blankets, foodstuffs and so on. Usually the treaties conferred a continuing right to hunt and fish on Crown lands. ...
The fundamental understanding -- the Grundnorm of settlement in Canada -- was that the Aboriginal people could only be deprived of the sustenance they traditionally drew from the land and adjacent waters by solemn treaty with the Crown, on terms that would ensure to them and to their successors a replacement for the livelihood that their lands, forests and streams had since ancestral times provided them. (In making this comment, I do not foreclose the possibility that other arguments might be made with respect to areas in Canada settled by France.)
The same notions held sway in the colony of British Columbia prior to union with Canada in 1871. An early governor, Governor Douglas, pronounced a policy of negotiating solemn treaties with the Aboriginal peoples similar to that pursued elsewhere in Canada. Tragically, that policy was overtaken by the less generous views that accompanied the rapid settlement of British Columbia. The policy of negotiating treaties with the Aboriginals was never formally abandoned. It was simply overridden, as the settlers, aided by administrations more concerned for short-term solutions than the duty of the Crown toward the first peoples of the colony settled where they wished and allocated to the Aboriginals what they deemed appropriate. This did not prevent the Aboriginal peoples of British Columbia from persistently asserting their right to an honourable settlement of their ancestral rights -- a settlement which most of them still await. Nor does it negate the fundamental proposition acknowledged generally throughout Canada's history of settlement that the Aboriginal occupants of particular territories have the right to use and be sustained by those territories.
Generally speaking, Aboriginal rights in Canada were group rights. A particular Aboriginal group lived on or controlled a particular territory for the benefit of the group as a whole. The Aboriginal rights of such a group inure to the descendants of the group, so long as they maintain their connection with the territory or resource in question. In Canada, as in Australia, "many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connection with it". But "[w]here a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence" (Mabo, at pp. 59-60.)
It thus emerges that the common law and those who regulated the British settlement of this country predicated dealings with Aboriginals on two fundamental principles. The first was the general principle that the Crown took subject to existing Aboriginal interests in the lands they traditionally occupied and their adjacent waters, even though those interests might not be of a type recognized by British law. The second, which may be viewed as an application of the first, is that the interests which Aboriginal peoples had in using the land and adjacent waters for their sustenance were to be removed only by solemn treaty with due compensation to the people and its descendants. This right to use the land and adjacent waters as the people had traditionally done for its sustenance may be seen as a fundamental Aboriginal right. It is supported by the common law and by the history of this country. It may safely be said to be enshrined in s. 35(1) of the Constitution Act, 1982.
Against this background, I come to the issue at the heart of this case. Do Aboriginal people enjoy a constitutional right to fish for commercial purposes under s. 35(1) of the Constitution Act, 1982? The answer is yes, to the extent that the people in question can show that it traditionally used the fishery to provide needs which are being met through the trade.
... If the Aboriginal people show that they traditionally sustained themselves from the river or sea, then they have a prima facie right to continue to do so, absent a treaty exchanging that right for other consideration. At its base, the right is not the right to trade, but the right to continue to use the resource in the traditional way to provide for the traditional needs, albeit in their modern form. However, if the people demonstrates that trade is the only way of using the resource to provide the modern equivalent of what they traditionally took, it follows that the people should be permitted to trade in the resource to the extent necessary to provide the replacement goods and amenities. In this context, trade is but the mode or practice by which the more fundamental right of drawing sustenance from the resource is exercised.
The right to trade the products of the land and adjacent waters for other goods is not unlimited. The right stands as a continuation of the Aboriginal people's historical reliance on the resource. There is therefore no justification for extending it beyond what is required to provide the people with reasonable substitutes for what it traditionally obtained from the resource. In most cases, one would expect the Aboriginal right to trade to be confined to what is necessary to provide basic housing, transportation, clothing and amenities -- the modern equivalent of what the Aboriginal people in question formerly took from the land or the fishery, over and above what was required for food and ceremonial purposes. ... The inquiry into what Aboriginal rights a particular people possess is an inquiry of fact, as we have seen. The right is established only to the extent that the Aboriginal group in question can establish historical reliance on the resource. For example, evidence that a people used a water resource only for occasional food and sport fishing would not support a right to fish for purposes of sale, much less to fish to the extent needed to provide a moderate livelihood. There is, on this view, no generic right of commercial fishing, large-scale or small. There is only the right of a particular Aboriginal people to take from the resource the modern equivalent of what by Aboriginal law and custom it historically took. This conclusion echoes the suggestion in Jack, approved by Dickson CJ and La Forest J in Sparrow, of a "limited" Aboriginal priority to commercial fishing.
A further limitation is that all Aboriginal rights to the land or adjacent waters are subject to limitation on the ground of conservation. These Aboriginal rights are founded on the right of the people to use the land and adjacent waters. There can be no use, on the long term, unless the product of the lands and adjacent waters is maintained. So maintenance of the land and the waters comes first. To this may be added a related limitation. Any right, Aboriginal or other, by its very nature carries with it the obligation to use it responsibly. It cannot be used, for example, in a way which harms people, Aboriginal or non-Aboriginal. It is up to the Crown to establish a regulatory regime which respects these objectives. In the analytic framework usually used in cases such as this, the right of the government to limit the Aboriginal fishery on grounds such as these is treated as a matter of justifying a limit on a "prima facie" Aboriginal right. Following this framework, I will deal with it in greater detail under the heading of justification.
...
The evidence establishes that by custom of the Aboriginal people of British Columbia, the Sto:lo have lived since time immemorial at the place of their present settlement on the banks of the Fraser River. ... In summary, the evidence conclusively establishes that over many centuries, the Sto:lo have used the fishery not only for food and ceremonial purposes, but also to satisfy a variety of other needs. Unless that right has been extinguished, and subject always to conservation requirements, they are entitled to continue to use the river for these purposes. To the extent that trade is required to achieve this end, it falls within that right.
I agree with L'Heureux-Dube J that the scale of fishing evidenced by the case at bar falls well within the limit of the traditional fishery and the moderate livelihood it provided to the Sto:lo.
For these reasons I conclude that Mrs Van der Peet's sale of the fish can be defended as an exercise of her Aboriginal right, unless that right has been extinguished.
The Crown has never concluded a treaty with the Sto:lo extinguishing its Aboriginal right to fish. However, it argues that any right the Sto:lo people possess to fish commercially was extinguished prior to 1982 through regulations limiting commercial fishing by licence. The appellant, for her part, argues that general regulations controlling the fishery do not evidence the intent necessary to establish extinguishment of an Aboriginal right.
For legislation or regulation to extinguish an Aboriginal right, the intention to extinguish must be "clear and plain": Sparrow, supra, at p. 1099. ...
Following this approach, this Court in Sparrow rejected the Crown's argument that pre-1982 regulations imposing conditions on the exercise of an Aboriginal right extinguished it to the extent of the regulation. To accept that argument, it reasoned at p. 1091, would be to elevate such regulations as applied in 1982 to constitutional status and to "incorporate into the Constitution a crazy patchwork of regulations". Rejecting this "snapshot" approach to constitutional rights, the Court distinguished between regulation of the exercise of a right, and extinguishment of the right itself.
In this case, the Crown argues that while the regulatory scheme may not have extinguished the Aboriginal right to fish for food (Sparrow) it nevertheless extinguished any Aboriginal right to fish for sale. It relies in particular on Order-in-Council, PC 2539, of September 11, 1917, which provided:
Whereas it is represented that since time immemorial, it has been the practice of the Indians of British Columbia to catch salmon by means of spears and otherwise after they have reached the upper non-tidal portions of the rivers;
And whereas while after commercial fishing began it became eminently desirable that all salmon that succeeded in reaching the upper waters should be allowed to go on to their spawning beds unmolested, in view of the great importance the Indians attached to their practice of catching salmon they have been permitted to do so for their own food purposes only ...
Therefore His Excellency the Governor General in Council, under the authority of s. 45 of the Fisheries Act, 4-5 George V, Chapter 8, is pleased to order and it is hereby ordered as follows:
2. An Indian may, at any time, with the permission of the Chief Inspector of Fisheries, catch fish to be used as food for himself and his family, but for no other purpose ...
The argument that Regulation 2539 extinguished any Aboriginal right to fish commercial faces two difficulties. The first is the absence of any indication that the government of the day considered the Aboriginal right on the one hand, and the effect of its proposed action on that right on the other, as required by the "clear and plain" test. There is no recognition in the words of the regulation of any Aboriginal right to fish. They acknowledge no more than an Aboriginal "practice" of fishing for food. The regulation takes note of the Aboriginal position that the regulations confining them to food fishing are "ineffective". However, it does not accept that position. It rather rejects it and affirms that free fishing by natives for sale will not be permitted. This does not meet the test for regulatory extinction of Aboriginal rights which requires: acknowledgement of right, conflict of the right proposed with policy, and resolution of the two.
The second difficulty the Crown's argument encounters is that the passage quoted does not present a full picture of the regulatory scheme imposed. ...
While the 1917 regulation prohibits Aboriginal peoples from selling fish obtained under their food rights, it did not prevent them from obtaining licences to fish commercially under the general regulatory scheme laid down in 1908 and modified through the years. In this way, the regulations recognized the Aboriginal right to participate in the commercial fishery. Instead of barring Aboriginal fishers from the commercial fishery, government regulations and policy before and after 1917 have consistently given them preferences in obtaining the necessary commercial licences. Far from extinguishing the Aboriginal right to fish, this policy may be seen as tacit acceptance of a "limited priority" in Aboriginal fishers to the commercial fishery of which Dickson J spoke in Jack and which was approved in Sparrow. ...
[T]he evidence available indicates that there has been significant Aboriginal participation in the commercial fishery. ... Since the regulatory scheme is cast in terms of individual rights, it has never expressly recognised the right of a particular Aboriginal group to a specific portion of the fishery. However, it has done so implicitly by granting Aboriginal fishers preferences based on their membership in an Aboriginal group.
It thus emerges that the regulatory scheme in place since 1908, far from extinguishing the Aboriginal right to fish for sale, confirms that right and even suggests recognition of a limited priority in its exercise. I conclude that the Aboriginal right of the Sto:lo to fish for sustenance has not been extinguished.
The remaining questions are whether the regulation infringes the Sto:lo's Aboriginal right to fish for trade to supplement the fish they took for food and ceremonial purposes and, if so, whether that infringement constitutes a justifiable limitation on the right.
The right established, the next inquiry, following Sparrow, is whether the regulation constitutes a prima facie infringement of the Aboriginal right. If it does, the inquiry moves on to the question of whether the prima facie infringement is justified.
The test for prima facie infringement prescribed by Sparrow at p. 1111, is "whether the legislation in question has the effect of interfering with an existing Aboriginal right". If it has this effect, the prima facie infringement is made out. Having set out this test, Dickson CJ and La Forest J supplement it by stating that the court should consider whether the limit is unreasonable, whether it imposes undue hardship, and whether it denies to the holders of the right their "preferred means of exercising the right" (p. 1112). ...
The question is whether the regulatory scheme under which Mrs Van der Peet stands charged has the "effect" of "interfering with an existing Aboriginal right", in this case the right of the Sto:lo to sell fish to the extent required to provide for needs they traditionally by native law and custom took from the section of the river whose banks they occupied. The inquiry into infringement in a case like this may be viewed in two stages. At the first stage, the person charged must show that he or she had a prima facie right to do what he or she did. That established, it falls to the Crown to show that the regulatory scheme meets the particular entitlement of the Sto:lo to fish for sustenance.
The first requirement is satisfied in this case by demonstration of the Aboriginal right to sell fish prohibited by regulation. The second requirement, however, has not been satisfied. ... The issue is not the quantity of fish currently caught, which may or may not satisfy the band's sustenance requirements. The point is rather that the Crown, by denying the Sto:lo the right to sell any quantity of fish, denies their limited Aboriginal right to sell fish for sustenance. The conclusion of prima facie infringement of the collective Aboriginal right necessarily follows.
The Crown argued that regulation of a fishery to meet the sustenance needs of a particular Aboriginal people is administratively unworkable. The appellant responded with evidence of effective regulation in the State of Washington of Aboriginal treaty rights to sustenance fishing. I conclude that the sustenance standard is not so inherently indeterminate that it cannot be regulated. It is for the Crown, charged with administering the resource, to determine effective means to regulate its lawful use. The fact that current regulations fail to do so confirms the infringement, rather than providing a defence to it.
... Just as I parted company with the Chief Justice on the issue of what constitutes an Aboriginal right, so I must respectfully dissent from his view of what constitutes justification. Having defined the right at issue in such a way that it possesses no internal limits, the Chief Justice compensates by adopting a large view of justification which cuts back the right on the ground that this is required for reconciliation and social harmony: Gladstone, at paras. 73 to 75. I would respectfully decline to adopt this concept of justification for three reasons. First, it runs counter to the authorities, as I understand them. Second, it is indeterminate and ultimately more political than legal. Finally, if the right is more circumspectly defined, as I propose, this expansive definition of justification is not required. I will elaborate on each of these difficulties in turn, arguing that they suggest a more limited view of justification: that the Crown may prohibit exploitation of the resource that is incompatible with its continued and responsible use.
I turn first to the authorities. The doctrine of justification was elaborated in Sparrow. Dickson CJ and La Forest J endorsed a two-part test. First, the Crown must establish that the law or regulation at issue was enacted for a "compelling and substantial" purpose. Conserving the resource was cited as such a purpose. Also valid, "would be an objective purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to Aboriginal people themselves." Second, the government must show that the law or regulation is consistent with the fiduciary duty of the Crown toward Aboriginal peoples. This means, Dickson CJ and La Forest J held, that the Crown must demonstrate that it has given the Aboriginal fishery priority in a manner consistent with the views of Dickson J (as he then was) in Jack: absolute priority to the Crown to act in accordance with conservation; clear priority to Indian food fishing; and "limited priority" for Aboriginal commercial fishing "over the competing demands of commercial and sports fishing".
The Chief Justice interprets the first requirement of the Sparrow test for justification, a compelling and substantial purpose, as extending to any goal which can be justified for the good of the community as whole, Aboriginal and non-Aboriginal. This suggests that once conservation needs are met, the inquiry is whether the government objective is justifiable, having regard to regional interests and the interests of non-Aboriginal fishers. ...
[T]he historical reliance of the participation of non-Aboriginal fishers in the fishery seems quite different from the compelling and substantial objectives this Court described in Sparrow -- conservation of the resource, prevention of harm to the population, or prevention of harm to the Aboriginal people themselves. These are indeed compelling objectives, relating to the fundamental conditions of the responsible exercise of the right. As such, it may safely be said that right-thinking persons would agree that these limits may properly be applied to the exercise of even constitutionally entrenched rights. Conservation, for example, is the condition upon which the right to use the resource is itself based; without conservation, there can be no right. The prevention of harm to others is equally compelling. No one can permitted to exercise rights in a way that will harm others. For example, in the domain of property, the common law has long provided remedies against those who pollute streams or use their land in ways that detrimentally affect others.
Viewed thus, the compelling objectives foreseen in Sparrow may be seen as united by a common characteristic; they constitute the essential pre-conditions of any civilized exercise of the right. It may be that future cases may endorse limitation of Aboriginal rights on other bases. For the purposes of this case, however, it may be ventured that the range of permitted limitation of an established Aboriginal right is confined to the exercise of the right rather than the diminution, extinguishment or transfer of the right to others. What are permitted are limitations of the sort that any property owner or right holder would reasonably expect -- the sort of limitations which must be imposed in a civilized society if the resource is to be used now and in the future. They do not negate the right, but rather limit its exercise. The extension of the concept of compelling objective to matters like economic and regional fairness and the interests of non-Aboriginal fishers, by contrast, would negate the very Aboriginal right to fish itself, on the ground that this is required for the reconciliation of Aboriginal rights and other interests and the consequent good of the community as a whole. This is not limitation required for the responsible exercise of the right, but rather limitation on the basis of the economic demands of non-Aboriginals. It is limitation of a different order than the conservation, harm prevention type of limitation sanctioned in Sparrow.
The Chief Justice, while purporting to apply the Sparrow test for justification, deviates from its second requirement as well as the first, in my respectful view. Here the stipulations are that the limitation be consistent with the Crown's fiduciary duty to the Aboriginal people and that it reflect the priority set out by Dickson J in Jack. The duty of a fiduciary, or trustee, is to protect and conserve the interest of the person whose property is entrusted to him. In the context of Aboriginal rights, this requires that the Crown not only preserve the Aboriginal people's interest, but also manage it well: Guerin. The Chief Justice's test, however, would appear to permit the constitutional Aboriginal fishing right to be conveyed by regulation, law or executive act to non-native fishers who have historically fished in the area in the interests of community harmony and reconciliation of Aboriginal and non-Aboriginal interests. Moreover, the Chief Justice's scheme has the potential to violate the priority scheme for fishing set out in Jack. On his test, once conservation is satisfied, a variety of other interests, including the historical participation of non-native fishers, may justify a variety of regulations governing distribution of the resource. The only requirement is that the distribution scheme "take into account" the Aboriginal right. Such an approach, I fear, has the potential to violate not only the Crown's fiduciary duty toward native peoples, but to render meaningless the "limited priority" to the non-commercial fishery endorsed in Jack and Sparrow.
Put another way, the Chief Justice's approach might be seen as treating the guarantee of Aboriginal rights under s. 35(1) as if it were a guarantee of individual rights under the Charter. The right and its infringement are acknowledged. However, the infringement may be justified if this is in the interest of Canadian society as a whole. In the case of individual rights under the Charter, this is appropriate because the Charter expressly states that these rights are subject to such "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." However, in the case of Aboriginal rights guaranteed by s. 35(1) of the Constitutional Act, 1982, the framers of s. 35(1) deliberately chose not to subordinate the exercise of Aboriginal rights to the good of society as a whole. In the absence of an express limitation on the rights guaranteed by s. 35(1), limitations on them under the doctrine of justification must logically and as a matter of constitutional construction be confined, as Sparrow suggests, to truly compelling circumstances, like conservation, which is the sine qua non of the right, and restrictions like preventing the abuse of the right to the detriment of the native community or the harm of others -- in short, to limitations which are essential to its continued use and exploitation. To follow the path suggested by the Chief Justice is, with respect, to read judicially the equivalent of s. 1 into s. 35(1), contrary to the intention of the framers of the constitution.
A second objection to the approach suggested by the Chief Justice is that it is indeterminate and ultimately may speak more to the politically expedient than to legal entitlement. ...
My third observation is that the proposed departure from the principle of justification elaborated in Sparrow is unnecessary to provide the "reconciliation" of Aboriginal and non-Aboriginal interests which is said to require it. The Chief Justice correctly identifies reconciliation between Aboriginal and non-Aboriginal communities as a goal of fundamental importance. ... The question is how this reconciliation of the different legal cultures of Aboriginal and non-Aboriginal peoples is to be accomplished. More particularly, does the goal of reconciliation of Aboriginal and non-Aboriginal interests require that we permit the Crown to require a judicially authorized transfer of the Aboriginal right to non-Aboriginals without the consent of the Aboriginal people, without treaty, and without compensation? I cannot think it does.
My reasons are twofold. First, as suggested earlier, if we adopt a conception of Aboriginal rights founded in history and the common law rather than what is "integral" to the Aboriginal culture, the need to adopt an expansive concept of justification diminishes. ... On the historical view I take, the Aboriginal right to fish for commerce is limited to supplying what the Aboriginal people traditionally took from the fishery. Since these were not generally societies which valued excess or accumulated wealth, the measure will seldom, on the facts, be found to exceed the basics of food, clothing and housing, supplemented by a few amenities. This accords with the "limited priority" for Aboriginal commercial fishing that this Court endorsed in Sparrow. Beyond this, commercial and sports fishermen may enjoy the resource as they always have, subject to conservation. As suggested in Sparrow, the government should establish what is required to meet what the Aboriginal people traditionally by law and custom took from the river or sea, through consultation and negotiation with the Aboriginal people. In normal years, one would expect this to translate to a relatively small percentage of the total commercial fishing allotment. In the event that conservation concerns virtually eliminated commercial fishing, Aboriginal commercial fishing, limited as it is, could itself be further reduced or even eliminated.
On this view, the right imposes its own internal limit -- equivalence with what by ancestral law and custom the Aboriginal people in question took from the resource. The government may impose additional limits under the rubric of justification to ensure that the right is exercised responsibly and in a way that preserves it for future generations. There is no need to impose further limits on it to affect reconciliation between Aboriginal and non-Aboriginal peoples.
The second reason why it is unnecessary to adopt the broad doctrine of justification proposed by the Chief Justice is that other means, yet unexploited, exist for resolving the different legal perspectives of Aboriginal and non-Aboriginal people. In my view, a just calibration of the two perspectives starts from the premise that full value must be accorded to such Aboriginal rights as may be established on the facts of the particular case. Only by fully recognizing the Aboriginal legal entitlement can the Aboriginal legal perspective be satisfied. At this stage of the process -- the stage of defining Aboriginal rights -- the courts have an important role to play. But that is not the end of the matter. The process must go on to consider the non-Aboriginal perspective -- how the Aboriginal right can be legally accommodated within the framework of non-Aboriginal law. Traditionally, this has been done through the treaty process, based on the concept of the Aboriginal people and the Crown negotiating and concluding a just solution to their divergent interests, given the historical fact that they are irretrievably compelled to live together. At this stage, the stage of reconciliation, the courts play a less important role. It is for the Aboriginal peoples and the other peoples of Canada to work out a just accommodation of the recognized Aboriginal rights. This process -- definition of the rights guaranteed by s. 35(1) followed by negotiated settlements -- is the means envisioned in Sparrow, as I perceive it, for reconciling the Aboriginal and non-Aboriginal legal perspectives. It has not as yet been tried in the case of the Sto:lo. A century and one-half after European settlement, the Crown has yet to conclude a treaty with them. Until we have exhausted the traditional means by which Aboriginal and non-Aboriginal legal perspectives may be reconciled, it seems difficult to assert that it is necessary for the courts to suggest more radical methods of reconciliation possessing the potential to erode Aboriginal rights seriously.
... There remains a final reason why the broader view of justification should be accepted. It is, in my respectful opinion, unconstitutional.
The Chief Justice's proposal comes down to this. In certain circumstances, Aboriginals may be required to share their fishing rights with non-Aboriginals in order to effect a reconciliation of Aboriginal and non-Aboriginal interests. In other words, the Crown may convey a portion of an Aboriginal fishing right to others, not by treaty or with the consent of the Aboriginal people, but by its own unilateral act. I earlier suggested that this has the potential to violate the Crown's fiduciary duty to safeguard Aboriginal rights and property. But my concern is more fundamental. How, without amending the constitution, can the Crown cut down the Aboriginal right? The exercise of the rights guaranteed by s. 35(1) is subject to reasonable limitation to ensure that they are used responsibly. But the rights themselves can be diminished only through treaty and constitutional amendment. To reallocate the benefit of the right from Aboriginals to non-Aboriginals, would be to diminish the substance of the right that s. 35(1) of the Constitution Act, 1982 guarantees to the Aboriginal people. This no court can do.
I therefore conclude that a government limitation on an Aboriginal right may be justified, provided the limitation is directed to ensuring the conservation and responsible exercise of the right. Limits beyond this cannot be saved on the ground that they are required for societal peace or reconciliation. Specifically, limits that have the effect of transferring the resource from Aboriginal people without treaty or consent cannot be justified. Short of repeal of s. 35(1), such transfers can be made only with the consent of the Aboriginal people. It is for the governments of this country and the Aboriginal people to determine if this should be done, not the courts. In the meantime, it is the responsibility of the Crown to devise a regulatory scheme which ensures the responsible use of the resource and provides for the division of what remains after conservation needs have been met between Aboriginal and non-Aboriginal peoples. ...
The relationship between the relative interests in a fishery with respect to which an Aboriginal right has been established in the full sense, that is of food, ceremony and articles to meet other needs obtained directly from the fishery or through trade and barter of fish products, may be summarized as follows:
1. The state may limit the exercise of the right of the Aboriginal people, for purposes associated with the responsible use of the right, including conservation and prevention of harm to others;
2. Subject to these limitations, the Aboriginal people have a priority to fish for food, ceremony, as well as supplementary sustenance defined in terms of the basic needs that the fishery provided to the people in ancestral times;
3. Subject to (1) and (2) non-Aboriginal peoples may use the resource.
In times of plenitude, all interests may be satisfied. In times of limited stocks, Aboriginal food fishing will have priority, followed by additional Aboriginal commercial fishing to satisfy the sustenance the fishery afforded the particular people in ancestral times. The Aboriginal priority to commercial fishing is limited to satisfaction of these needs, which typically will be confined to basic amenities. In this sense, the right to fish for commerce is a "limited" priority. If there is insufficient stock to satisfy the entitlement of all Aboriginal peoples after required conservation measures, allocations must be made between them. Allocations between Aboriginal peoples may also be required to ensure that upstream bands are allowed their fair share of the fishery, whether for food or supplementary sustenance. All this is subject to the overriding power of the state to limit or indeed, prohibit fishing in the interests of conservation.
The consequence of this system of priorities is that the Crown may limit Aboriginal fishing by Aboriginal people found to possess a right to fish for sustenance on two grounds: (1) on the ground that a limited amount of fish is required to satisfy the basic sustenance requirement of the band, and (2) on the ground of conservation and other limits required to ensure the responsible use of the resource (justification).
Against this background, I return to the question of whether the regulation preventing the Sto:lo from selling any fish is justified. In my view it is not. No compelling purpose such as that proposed in Sparrow has been demonstrated. The denial to the Sto:lo of their right to sell fish for basic sustenance has not been shown to be required for conservation or for other purposes related to the continued and responsible exploitation of the resource. The regulation, moreover, violates the priorities set out in Jack and Sparrow and breaches the fiduciary duty of the Crown to preserve the rights of the Aboriginal people to fish in accordance with their ancestral customs and laws by summarily denying an important aspect of the exercise of the right.
I would allow the appeal to the extent of confirming the existence in principle of an Aboriginal right to sell fish for sustenance purposes, and set aside the appellant's conviction. I would answer the Constitutional question as follows:
Question: Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read on September 11, 1987, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, by reason of the Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982, invoked by the appellant?
Answer: Section 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read on September 11, 1987, is of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982, by reasons of the Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982, as invoked by the appellant.
Appeal dismissed, L'Heureux-Dube and McLachlin JJ dissenting.
* R v Van der Peet is referred to in the commentaries "O Canada -- Van der Peet as guidance on the construction of Native Title rights" by Janice Grey (1997) 2(1) AILR and and "Asking the minerals question: rights in minerals as an incident of Native Title" by Gary D Meyers, Chloe M Piper and Hilary E Rumley (1997) 2(2) AILR. l
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/40.html