N.T.C. Smokehouse Ltd. Appellant
Her Majesty The Queen Respondent
The Attorney General of British Columbia,
the Canadian National Railway Company,
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. N.T.C. SmokehoSmokehouse Ltd.
File No.: 23800.
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 ‑‑ Right to sell fish (salmon) ‑‑ Food processor charged for selling salmon contrary to regulations ‑‑ Large quantities of salmon purchased from natives ‑‑ Natives catching salmon under food fishing licence ‑‑ Regulations prohibiting sale or barter of fish caught under food fishing licence ‑‑ Whether an aboriginal right to sell salmon ‑‑ Whether the aboriginal right extinguished ‑‑ Whether aboriginal right infringed by regulations ‑‑ Whether any infringement justified ‑‑ Constitution Act, 1982 , ss. 35(1) , 52 ‑‑ British Columbia Fishery (General) Regulations, SOR/84‑248, ss. 4(5) , 27(5) ‑‑ Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1).
The appellant, a food processor, was charged under s. 61(1) of the Fisheries Act with selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, and with selling and purchasing fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the Regulations. The fish had been caught by Indian bands under authority of food fishing licences, sold to the appellant and resold by the appellant in the commercial market. Section 27(5) of the Regulations at the time prohibited the sale or barter of any fish caught under the authority of an Indian food fish licence and s. 4(5) prohibited anyone from purchasing such fish. The appellant was convicted and its appeal to the Court of Appeal was dismissed. The constitutional questions stated by this Court queried whether ss. 4(5) and 27(5) of the Regulations were of no force or effect with respect to the appellant by operation of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of that Act.
Held (L’Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
The Aboriginal Right
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Although the aboriginal right asserted was not one held by the appellant itself but rather held by native bands originally selling the fish, the appellant was entitled to raise the defence given that a conviction hinged on the natives’ sale of the fish being illegal.
An activity, to be recognized as an aboriginal right, must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The Court must first determine the precise nature of the claim being made, taking into account such factors as the nature of the action allegedly done pursuant to an aboriginal right, the government regulation allegedly infringing the right, and the practice, custom or tradition relied upon to establish the right. The Regulations prohibited all sales or trade of salmon caught without a commercial fishing licence. The sale of fish by the Indian bands in question was, however, extensive.
The claim to an aboriginal right to exchange fish commercially places a more onerous burden on the appellant than a claim to an aboriginal right to exchange fish for money or other goods in that the latter claim is subsumed by the larger claim to fish commercially. To prove the right to exchange fish for money or other goods, the appellant need only show that that exchange was integral to the distinctive native culture: however, to prove the right to exchange fish commercially, the appellant needs to go beyond that proof and demonstrate that that exchange, on a scale best characterized as commercial, was integral to the distinctive native culture. The aboriginal right claimed, therefore, was the right to exchange fish for money or other goods. The claim to the right to fish commercially need only be considered if this initial claim has been established.
The Court must determine whether the practice, custom or tradition claimed to be an aboriginal right was, prior to contact with Europeans, an integral part of the distinctive society of the aboriginal people in question. Normally, because the determination of whether or not an aboriginal right exists is specific to the particular aboriginal group claiming the right, distinctions between aboriginal claimants will be significant and important. Here, however, no significant distinction existed between the two bands selling the fish.
The determination of whether the aboriginal right claimed was an integral part of the distinctive native culture depends, in significant part, on the factual evidence. The findings of fact made by the trial judge should not, absent a palpable and overriding error, be overturned on appeal. A review of the evidence and transcripts demonstrated no such error.
The findings of fact made by the trial judge did not support the appellant’s claim that, prior to contact, the exchange of fish for money or other goods was an integral part of the distinctive cultures of the native bands involved. The exchange of fish incidental to social and ceremonial occasions was not, itself, a sufficiently central, significant or defining feature of these societies to be recognized as an aboriginal right under s. 35(1) of the Constitution Act, 1982 . The exchange of fish, when taking place apart from the occasion to which such exchange was incidental, could not, even if that occasion were an integral part of the aboriginal society in question, constitute an aboriginal right. This conclusion also disposed of the aboriginal right to fish commercially.
Per L’Heureux‑Dubé J. (dissenting): 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 facts did not support framing the issue in terms of commercial fishing. Transactions were not directed at providing an economic profit. The right claimed was the right to sell, trade and barter fish without more specification and not the right to fish commercially. Moreover, the impugned legislative provisions are not directed only at commercial fishing. They prohibit commercial and non-commercial sale, trade and barter of fish, including the sale, trade and barter of fish for livelihood, support and sustenance purposes. Consequently, the issue here is whether the band’s right to fish includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes.
An aboriginal practice, custom or tradition, to be recognized as a constitutionally protected aboriginal right, must be sufficiently significant and fundamental to the culture and social organization of the particular group of aboriginal people for a substantial continuous period of time. The trial judge, when examining the historical evidence presented at trial, mischaracterized the aboriginal rights claimed, erred in his approach to the interpretation of the nature and extent of such rights, and misapplied the test in Sparrow. These palpable and overriding errors conferred on an appellate court the right to intervene and to substitute its own findings of fact.
The evidence showed that the sale, trade and barter of fish for livelihood, support and sustenance purposes was sufficiently significant and fundamental to the culture and social organization of the native bands involved. The evidence also showed that they sold, traded and bartered fish for livelihood, support and sustenance purposes for a substantial continuous period of time. The type of aboriginal practices, customs and traditions, the particular aboriginal culture and society, and the reference period of 20 to 50 years were considered. Here, trade and exchange of salmon existed long before the first Europeans arrived.
Per McLachlin J. (dissenting): The aboriginal right to sell fish is limited to equivalence with what the aboriginal people in question historically took from the fishery according to aboriginal law and custom. The native people here established that right. They did not need to prove that their traditional ways were identical to those used by them in the fishery to‑day. Such a requirement would preclude the adaptation of aboriginal peoples to the modern era.
Per L’Heureux‑Dubé J. (dissenting): Aboriginal rights can be extinguished through a series of legislative acts. The intention to extinguish must nonetheless be clear and plain, in the sense that the government must address the aboriginal activities in question and explicitly extinguish them by making them no longer permissible. This is diametrically opposed to the position that extinguishment may be achieved by merely regulating an activity or that legislation necessarily inconsistent with the continued enjoyment of an aboriginal right can be deemed to extinguish it. Here, the legislation was insufficient to extinguish the aboriginal right to sell, trade and barter for livelihood, support and sustenance purposes. The statutes and regulations did not address aboriginal fishing in any way that demonstrates an intention to abolish aboriginal interest in the fishery.
Per McLachlin J. (dissenting): The aboriginal right to trade fish for sustenance was not extinguished for the reasons given in R. v. Van der Peet.
Prima Facie Infringement
Per L’Heureux‑Dubé J. (dissenting): The issue of prima facie infringement had to be remitted to trial since there was insufficient evidence to enable this Court to decide it.
Per McLachlin J. (dissenting): The evidence established an aboriginal right covering the activity at issue. The regulatory scheme infringed that right as it prohibited any sale of fish for sustenance and made no provision for satisfaction of the collective right. The size of the transaction alone did not rebut the prima facie infringement. The quantity of fish sold was relevant only in relation to the natives’ sustenance needs. The aboriginal right was a collective one. Its infringement was established when the Crown failed to show that it had put in place a regulatory scheme that met the natives’ collective right to trade in fish for sustenance.
Per L’Heureux‑Dubé J. (dissenting): The issue of justification had to be remitted to trial since there was insufficient evidence to enable this Court to decide it.
Per McLachlin J. (dissenting): The infringement of the aboriginal right to sell fish for sustenance was not justified. To justify an infringement of an aboriginal right, the Crown must establish both that the law or regulation at issue was enacted for a “compelling and substantial” purpose, and that the law or regulation is consistent with the fiduciary duty of the Crown toward the aboriginal peoples. The Crown did not establish that the denial of the aboriginal right to sell fish for sustenance was required for conservation purposes or for other purposes related to the continued and responsible exploitation of the resource. Moreover, the total denial conflicted with the fiduciary duty of the Crown to permit exercise of a constitutionally guaranteed aboriginal right.
By Lamer C.J.
Applied: R. v. Van der Peet,  2 S.C.R. 507, rev’g (1993), 80 B.C.L.R. (2d) 75; referred to: Kienapple v. The Queen,  1 S.C.R. 729; R. v. Sparrow,  1 S.C.R. 1075.
By L’Heureux‑Dubé J. (dissenting)
R. v. Van der Peet,  2 S.C.R. 507, rev’g (1993), 80 B.C.L.R. (2d) 75; R. v. Gladstone,  2 S.C.R. 723; R. v. Nikal,  1 S.C.R. 1013; R. v. Sparrow,  1 S.C.R. 1075; R. v. Horseman,  1 S.C.R. 901; R. v. Jones (1993), 14 O.R. (3d) 421; Delgamuukw v. British Columbia,  5 W.W.R. 97; Stein v. The Ship “Kathy K”,  2 S.C.R. 802; Beaudoin‑Daigneault v. Richard,  1 S.C.R. 2; Lensen v. Lensen,  2 S.C.R. 672; Laurentide Motels Ltd. v. Beauport (City),  1 S.C.R. 705; Ontario (Attorney General) v. Bear Island Foundation,  2 S.C.R. 570; Lapointe v. Hôpital Le Gardeur,  1 S.C.R. 351; R. v. Burns,  1 S.C.R. 656; Hodgkinson v. Simms,  3 S.C.R. 377; Schwartz v. Canada,  1 S.C.R. 254; Calder v. Attorney-General of British Columbia,  S.C.R. 313; Baker Lake v. Minister of Indian Affairs and Northern Development,  1 F.C. 518; Simon v. The Queen,  2 S.C.R. 387; United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941).
By McLachlin J. (dissenting)
R. v. Van der Peet,  2 S.C.R. 507; R. v. Gladstone,  2 S.C.R. 723; R. v. Sparrow,  1 S.C.R. 1075.
Statutes and Regulations Cited
Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1) [rep. & sub. S.C. 1976-77, c. 35, s. 18].
Indian Act, R.S.C. 1970, c. I‑6, s. 81(1)(o) [am. S.C. 1985, c. 27, s. 15.1(2)].
Sheshaht Band Fish By‑Law, SOR/82‑471.
Concise Oxford Dictionary of Current English, 7th ed. Edited by J.B. Sykes. Oxford: Clarendon Press, 1982, “commerce”..
New Encyclopaedia Britannica, vol. 6, 15th ed. Chicago: Encyclopaedia Britannica, 1990.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 158, 29 B.C.A.C. 273, 48 W.A.C. 273,  5 W.W.R. 542,  4 C.N.L.R. 158, dismissing an appeal from a judgment of Melvin Co. Ct. J. (1990), 9 W.C.B. (2d) 439, dismissing an appeal from conviction by MacLeod Prov. Ct. J. Appeal dismissed, L’Heureux‑Dubé and McLachlin JJ. dissenting.
For complete Supreme Court Judgement