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Commercial Fishing Under Aboriginal and Treaty Rights

12 Feb 2019

The majority highlighted several guiding factors that a court must consider in its assessment of Aboriginal rights, including: • the perspective of Indigenous peoples themselves;17 • the precise nature of the claim being made;18 • the central significance of the practice, custom or tradition to the Indigenous society in question;19 • the relationship of Indigenous peoples to the land;20 and • the [...] The appellant did not dispute these facts but raised the constitutional argument that the impugned fisheries regulations infringed on the Aboriginal rights of the Tseshaht (formerly known as the Sheshaht) and Hupacasath (formerly known as the Opetchesaht) peoples, from whom it had purchased the fish. [...] The majority stated that the claim to an Aboriginal right to fish commercially would be far more difficult to establish than the claim to an Aboriginal right to exchange fish for money or other goods: to establish the former right, the claimant group would have had to demonstrate that the exchange of fish for money or other goods, on a commercial scale, formed an integral part of the distinctive c [...] The majority saw no compelling reason to overturn the trial judge’s findings of fact that the exchange of fish for money or other goods did not form an integral part of the distinctive cultures of the Tseshaht and Hupacasath peoples.24 2.4 R. V. GLADSTONE The Gladstone decision clearly illustrates that the recognition of an Aboriginal right comes down to findings of fact as assessed by the trial j [...] The majority also found that the disputed regulatory scheme impinged on the rights of the appellants and constituted a prima facie infringement of their Aboriginal rights.28 Because of the lack of evidence on the issue, the Supreme Court felt it could not properly assess whether the regulations could be justified as a reasonable limitation of these rights.
government politics regulation civil law common law fishing government information indigenous peoples justice law indigenous human activities court indian first nations judiciary trial (court) constitution (law) section 35 indigenous peoples in canada constitution act, 1982 section 35 of the constitution act, 1982 constitution act section 35(1) aboriginal rights indigenous rights
Pages
14
Published in
Ottawa, ON, CA

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