Supreme Court of Canada Decides Landmark Fishing Cases: Van der Peet, NTC Smokehouse, Gladstone
On August 22, 1996, the Supreme Court of Canad issued its decisions in three major aboriginal fishing rights cases from British Columbia. In all three cases - Van der Peet, Smokehouse, and Gladstone - the aboriginal side raised the aboriginal right to fish commercially or to exchange fish for other goods as a defence to Fisheries Act charges. The defence was rejected in two of the cases - Van der Peet and Smokehouse - but was accepted in the third - Gladstone.
A common principle running through all three decisions is that the right to sell fish commercially and the right to exchange fish for money or goods can exist at Canadian law. The real question, the Supreme Court concluded, is whether any of these practices were crucial enough to the distinctive aboriginal society prior to European contact to be protected by s.35(1) of the Constitution Act.
In the end, each case turned on the evidence presented. In two of the cases, the Court was unwilling to overturn the original negative trial decisions which concluded that evidence was insufficient to establish a network of trade in fish in pre-contact times. In the third case, Gladstone, the Court accepted that the facts as found by the trial judge confirmed that the Heiltsuk Nation did engage in commercial trade in herring spawn on kelp prior to European contact.
While only one of the three cases succeeded fully in asserting an aboriginal rights defence, all three of the cases make a valuable contribution to aboriginal rights case law. The following are a few of the significant legal points that flow from these cases:
- Aboriginal rights can contain a commercial component. Whether or not they do depends on the conclusions of fact made by the trial judge.
- The cases lend support to the conclusion in the landmark Sparrow case that the Crown has a fiduciary obligation to aboriginal people with a result that in dealings between the government and aboriginals, the honour of the Crown is at stake. This is strong support for the argument that the Crown's fiduciary obligation to aboriginal people does not relate solely to reserve lands, as the Crown has, at times, asserted.
- Aboriginal fishing rights, including aboriginal commercial fishing rights, if they exist on the facts of the case, have not been extinguished in British Columbia.
Accordingly, these decisions may be used as a positive basis for the negotiation of fisheries matters or for further litigation if talks are unsuccessful.
The suggestion by some interest groups that the decisions should spell the end for the Aboriginal Fisheries Strategy or other distinct treatment for aboriginal fishing is not well founded. If the issue of aboriginal fishing in not dealt with adequately at the negotiating table, the fisheries trilogy invites litigation from First Nations whose unique history could well give rise to an aboriginal fishing right of a commercial nature.