The Attorney General of British Columbia, the Attorney General for Alberta, the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation, The First Nations Summit, Delgamuukw et al., Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner Interveners
Indexed as: R. v. Gladstone
File No.: 23801.
1995: November 27, 28, 29; 1996: August 21.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Aboriginal rights ‑‑ Natives approaching buyer with sample of fish product to determine if “interested”in buying ‑‑ Regulations requiring specific licence for harvesting and sale of fish product ‑‑ Natives not having proper licence to sell fish product ‑‑ Evidence indicating large scale trade in fish product prior to contact with Europeans ‑‑ Whether an aboriginal right to harvest and trade in fish product ‑‑ Whether the aboriginal right extinguished ‑‑ Whether aboriginal right infringed by regulations ‑‑ Whether any infringement justified ‑‑Constitution Act, 1982 , ss. 35(1) , 52 ‑‑ Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1) ‑‑ Pacific Herring Fishery Regulations, SOR/84-324, s. (3).
Commercial law ‑‑ Attempt to sell ‑‑ Natives approaching buyer with sample of fish product to determine if “interested” in buying ‑‑ Whether conduct amounting to attempt to sell.
The accused were charged under s. 61(1) of the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper licence contrary to s. 20(3) of the Pacific Herring Fishery Regulations. They had shipped a large quantity to the Vancouver area and approached a fish dealer with a sample to see if he was “interested”. One of the accused, on arrest, produced an Indian food fish licence permitting him to harvest 500 pounds. The Supreme Court of British Columbia and the Court of Appeal upheld the convictions. The constitutional question before this Court questioned whether s. 20(3) of the Pacific Herring Fishery Regulations was of no force or effect in the circumstances, in virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 . Also raised was the sufficiency of their actions to constitute an attempt to sell in law.
Held (La Forest J. dissenting): The appeal should be allowed.
Whether an Attempt to Sell
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The accused attempted to sell herring spawn on kelp. Shipping it to the Vancouver area, taking a sample to the fish merchant and specifically asking him if he was “interested” had sufficient proximity to the acts necessary to complete the offence of selling herring spawn on kelp to move those actions beyond mere preparation to an actual attempt.
The Aboriginal Right
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: To be recognized as an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right. The first step is the determination of the precise nature of the claim being made, taking into account such factors as the nature of the action allegedly taken pursuant to an aboriginal right, the government regulation allegedly infringing the right, and the practice, custom or tradition allegedly establishing the right.
The regulations under which the accused were charged prohibited all sale or trade in herring spawn on kelp without a particular licence. The exchange of herring spawn on kelp for money or other goods was to an extent a central, significant and defining feature of the culture of the Heiltsuk prior to contact and best characterized as commercial. This exchange and trade was an integral part of the distinctive culture of the Heiltsuk prior to contact.
To merit constitutional protection, a practice, custom or tradition which is integral to the aboriginal community must be shown to have continuity with the practices, customs or traditions which existed prior to contact. The evidence satisfied this requirement. The commercial trade in herring spawn on kelp was an integral part of the distinctive culture of the Heiltsuk prior to contact and was not incidental to social or ceremonial activities. An aboriginal right to trade herring spawn on kelp on a commercial basis was established.
Per L’Heureux‑Dubé J.: Section 35(1) must be given a generous, large and liberal interpretation and uncertainties, ambiguities or doubts should be resolved in favour of the natives. Further, aboriginal rights must be construed in light of the special trust relationship and the responsibility of the Crown vis‑à‑vis aboriginal people. Finally, but most significantly, aboriginal rights protected under s. 35(1) have to be viewed in the context of the specific history and culture of the native society and with regard to native perspective on the meaning of the rights asserted.
The “frozen right” approach focusing on aboriginal practices should not be adopted. Instead, the definition of aboriginal rights should refer to the notion of “integral part of distinctive aboriginal culture” and should “permit the evolution of aboriginal rights over time”. Case law on treaty and aboriginal rights relating to trade supports the making of a distinction between the sale, trade and barter of fish for, on the one hand, livelihood, support and sustenance purposes and for, on the other, purely commercial purposes. The delineation of aboriginal rights must be viewed on a continuum.
The aboriginal right at issue falls on the part of the spectrum relating to the sale, trade and barter of fish for commercial purposes, not on the part dealing with livelihood, support and sustenance purposes. The legislative provision under constitutional challenge was aimed at both commercial and non‑commercial sale, trade and barter of herring spawn on kelp. The sale, trade and barter of fish for commercial purposes was sufficiently significant and fundamental to the culture and social organization of the Heiltsuk for a substantial continuous period of time to have formed an integral part of their culture. Consequently, the criteria regarding the characterization of aboriginal rights protected under s. 35(1) of the Constitution Act, 1982 are met in this case.
Per McLachlin J.: Evidence of an established trading network was clear in this case. The Heiltsuk derived their sustenance from trade derived from herring spawn on kelp; they relied on trade to supply them with the necessaries of life, principally other food products. An aboriginal right therefore existed.
Per La Forest J. (dissenting): The trial judge’s findings of fact are to the effect that the Heiltsuk had been engaged in the bartering and trading of herring spawn on kelp prior to contact and that these activities, at times, involved very large quantities of fish. These activities had special significance to the Heiltsuk in that the Heiltsuk engaged in such trading activities on the basis that they valued sharing resources with other bands who did not have access to that resource. That special significance made bartering and trading in herring spawn on kelp a part of their distinctive culture. Therefore, the Heiltsuk did have an aboriginal right to barter and trade herring spawn on kelp to a certain degree. Without that special significance to the Heiltsuk, it cannot be said, based on the trial judge’s findings of fact, that such activity constitutes an integral part of their distinctive culture and thus any trading and bartering not done in that context cannot in any way be said to form an integral part of the distinctive culture of the Heiltsuk society. The appellants’ activities, which, the trial judge found, were done in a completely different context, accordingly did not form an integral part of the distinctive culture of the Heiltsuk and the aboriginal rights of the Heiltsuk were therefore not infringed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The intention to extinguish an aboriginal right must be clear and plain. The varying regulatory schemes affecting the herring spawn on kelp harvest did not express a clear and plain intention to eliminate the aboriginal right. The regulations may have failed to recognize the aboriginal right and to give it special protection but they never prohibited aboriginal people from obtaining licences to fish commercially. More importantly, the government has, at various times, given preferences to aboriginal commercial fishing. Finally, the Regulation relied upon in arguing for extinguishment was of an entirely different nature than the document relied on for a finding of extinguishment in R. v.Horseman.
Per L’Heureux‑Dubé J.: As regards the issues of extinguishment and prima facie infringement, the reasons and conclusions of Lamer C.J. were agreed with for the most part. The Heiltsuk’s aboriginal right to sale, trade and barter herring spawn on kelp for commercial purposes has not been extinguished by a “clear and plain intention” of the Sovereign. The approach where the aboriginal right is considered extinguished when it and the activities contemplated by the legislation cannot co‑exist is irreconcilable with the “clear and plain intention” test favoured in Canada. The legislation was not sufficient to extinguish the aboriginal right to sell, trade and barter fish for commercial purposes. It merely regulates aboriginal activities and does not amount to extinguishment.
Per McLachlin J.: Order in Council P.C. 2539 did not extinguish the aboriginal right of the Heiltsuk people to use herring spawn on kelp as a source of sustenance. It did not manifest the necessary “clear and plain” intention. Their most likely purpose was to conserve. A measure aimed at conservation of a resource is not inconsistent with a recognition of an aboriginal right to make use of that resource. Indeed, there was no evidence that the measure was intended to relate to the aboriginal right at all.
Per La Forest J. (dissenting): The Sparrow decision only stands for the proposition that the Crown had not expressed a clear and plain intention to extinguish aboriginal rights regarding fishing for food, including social and ceremonial purposes. Order‑in‑Council P.C. 2539, which put in place restrictions on the native exploitation of this fishery, evinced a clear and plain intention on the part of the Crown to extinguish aboriginal rights relating to commercial fisheries in British Columbia ‑‑ should they ever have existed. The Crown specifically chose to translate aboriginal practices into statutory rights and expressly decided to limit the scope of these rights. Aboriginal rights relating to practices that were specifically excluded were thereby extinguished.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The Sparrow test for determining whether the government has infringed aboriginal rights involves (1) asking whether the legislation has the effect of interfering with an existing aboriginal right and (2) determining whether the limitation (i) was unreasonable, (ii) imposed undue hardship, (iii) denied the right holders their preferred means of exercising that right. The test is partly determined by the factual context; in this case, the test must be applied not simply to s. 20(3) of the Pacific Herring Fishery Regulations but also to the other aspects of the regulatory scheme. Simply because one of those questions is answered in the negative will not prohibit a finding by a court that a prima facie infringement has taken place; it will just be one factor for a court to consider in its determination of whether there has been a prima facie infringement.
The government’s scheme for regulating the herring spawn on kelp fishery can be divided into four constituent parts: (1) the government determines the amount of the herring stock that will be harvested in a given year; (2) the government allots the herring stock to the different herring fisheries (herring roe, herring spawn on kelp and other herring fisheries); (3) the government allots the herring spawn on kelp fishery to various user groups (commercial users and the Indian food fishery); and (4) the government allots the commercial herring spawn on kelp licences. The appellants demonstrated a prima facie interference with their aboriginal rights. Prior to contact, the Heiltsuk could harvest herring spawn on kelp to the extent they themselves desired. Under the regulatory scheme they can harvest for commercial purposes only to the limited extent allowed by the government.
Per L’Heureux‑Dubé J.: Section 20(3) of the Pacific Herring Fishery Regulations directly conflicts, both by its object and by its effects, with native sale, trade and barter of herring spawn on kelp on a commercial basis and so violates the aboriginal right. This right has never been extinguished by a clear and plain intention of the Sovereign. Although in agreement with Lamer C.J. on the issue, the relatively low burden on the claimant of the right to demonstrate infringement on the face of the legislation was emphasized. Here, the appellants overwhelmingly discharged their burden in that regard.
Per McLachlin J.: An aboriginal person must establish a prima facie right to engage in the prohibited conduct at issue. The Crown may rebut the inference of infringement if it can demonstrate that the regulatory scheme, viewed as a whole, accommodates the collective aboriginal right in question. The Heiltsuk have a right to harvest and sell herring spawn on kelp for the purpose of sustenance and this right was evidently denied by the regulation under which the appellants stand charged. Thus, the first requirement of the test is met.
The evidence did not disclose whether the licence issued to the Heiltsuk was sufficient to satisfy their aboriginal right to sell herring spawn on kelp for sustenance. The case should be referred for a new trial so that this case can be resolved.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Justification of infringements of aboriginal rights involves a two‑part test. The government must demonstrate that: (1) it was acting pursuant to a valid legislative objective; and (2) its actions were consistent with its fiduciary duty towards aboriginal peoples.
Where the aboriginal right is internally limited, so that it is clear when that right has been satisfied and other users can be allowed to participate in the fishery, the notion of priority, as articulated in Sparrow, makes sense. Sparrow did not contemplate situations other than that where the aboriginal right was internally limited. Where the aboriginal right has no internal limitation, however, the notion of priority, as articulated in Sparrow, would mean that an aboriginal right would become an exclusive one. Where the aboriginal right has no internal limitation, the doctrine of priority requires that the government demonstrate that it has taken the existence of aboriginal rights into account in allocating the resource and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users. This right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource, and the actual allocation of the resource which results from that process, reflect the prior interest of aboriginal rights holders in the fishery. The content of this priority ‑‑ something less than exclusivity but which nonetheless gives priority to the aboriginal right ‑‑ must remain somewhat vague pending consideration of the government’s actions in specific cases.
Unlike Sparrow, which considered only the justifiability of conservation objectives, this case raises the question of whether other government objectives will justify limitations on aboriginal rights. The regulatory scheme at issue in this case — the allocation of herring spawn on kelp — does not involve conservation concerns: it makes no difference in terms of conservation who is allowed to catch the fish.
The purposes underlying aboriginal rights must inform not only the definition of the rights but also the identification of those limits on the rights which are justifiable. Because distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation. With regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non‑aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.
The evidence and testimony presented in this case was insufficient for the Court to determine whether the government’s regulatory scheme was justified.
Per L’Heureux‑Dubé J.: There was insufficient evidence to rule on the question of justification. Lamer C.J.’s comments on this issue, and particularly as regards the doctrine of priority and the decision in Jack v. The Queen were agreed with.
Per McLachlin J.: It was not necessary to reach the issue of justification. The question of whether such an infringement were justified should be decided at a new trial.
By Lamer C.J.
Applied: R. v. Sparrow,  1 S.C.R. 1075; R. v. Deutsch,  2 S.C.R. 2; R. v. Van der Peet,  2 S.C.R. 507; Calder v. Attorney‑General of British Columbia,  S.C.R. 313; considered:R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; distinguished: R. v. Horseman,  1 S.C.R. 901; R. v. Badger,  1 S.C.R. 771; referred to:R. v. Nikal,  1 S.C.R. 1013; R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75; R. v. N.T.C. Smokehouse Ltd. (1993), 80 B.C.L.R. (2d) 158; Jack v. The Queen,  1 S.C.R. 294; Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 927; Stoffman v. Vancouver General Hospital,  3 S.C.R. 483; McKinney v. University of Guelph,  3 S.C.R. 229; R. v. Butler,  1 S.C.R. 452; R. v. Oakes,  1 S.C.R. 103; Attorney‑General of British Columbia v. Attorney‑General of Canada,  A.C. 153.
By L’Heureux‑Dubé J.
Applied:R. v. Van der Peet,  2 S.C.R. 507; R. v. Sparrow,  1 S.C.R. 1075; referred to:R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; R. v. Horseman,  1 S.C.R. 901; R. v. Jones (1993), 14 O.R. (3d) 421; United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941); Jack v. The Queen,  1 S.C.R. 294.
By McLachlin J.
Applied:R. v. Van der Peet,  2 S.C.R. 507; referred to: R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672.
By La Forest J. (dissenting)
R. v. Van der Peet,  2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; Calder v. Attorney-General of British Columbia,  S.C.R. 313; R. v. Sparrow,  1 S.C.R. 1075; Heiltsuk Indian Band v. Canada (1993), 59 F.T.R. 308; Canadian Pacific Ltd. v. Paul,  2 S.C.R. 654; Jack v. The Queen,  1 S.C.R. 294; R. v. Horseman,  1 S.C.R. 901; R. v. Badger,  1 S.C.R. 771.
Statutes and Regulations Cited
British Columbia Fishery Regulations, SOR/54-659, s. 21A [ad. SOR/55-260, s. 3] (1) [repl. SOR/74-50, s. 9], (2) [repl. SOR/72-417, s. 7], s. 32.
British Columbia Fishery (General) Regulations, SOR/77-716, s. 29.
British Columbia Fishery (General) Regulations, SOR/84-248, s. 27(5) [ad. SOR/85‑290, s. 5].