The appellants were charged under the Fisheries Act with the offence of offering to sell herring spawn on kelp caught under authority of an Indian fishing license. The license permitted the sale of 500lb; the appellants were caught selling 4,200lb. The appellants did not argue the facts but claimed that they had an aboriginal right to commercially exploit the herring and that the regulation is contrary to 35(1).
- Do the appellants have an aboriginal right to fish?
- If so, does the right extend to commercial exploitation?
- If so, is the Crown justified in restricting the right using regulation?
Appeal allowed, new trial ordered.
Lamer recognizes that this case poses difficulties due to the practice being best characterized as the "commercial exploitation" of herring spawn on kelp, however there was no true "commercial" market in the pre-contact era. He thus characterizes the right as a right to exchange herring spawn on kelp for money or other goods, and if this right is found to exist, he will then consider whether that extends to commercial exploitation of the spawn.
Lamer holds that the claimants have provided clear evidence that their community partook in the trade of herring spawn on kelp before European contact. The main difference between this case and the sale of fish in Van der Peet is that in this case the trade was not merely incidental to the social and ceremonial activities of the community but was rather a central and significant part of the Heiltsuk culture.
Applying the Sparrow test the right is not extinguished; the nature of the regulations, which permit trading to a certain extent, clearly do not show a "clear and plain" intention to extinguish the right entirely.
Lamer also discusses the test for infringement in Sparrow. He says that factors listed in Sparrow that are used to look for a prima facie infringement (undue hardship, unreasonableness) are only factors that can help in the search – they are not necessary. Simply because one of those questions is answered in the negative does not mean that an infringement has not taken place.
He goes on to discuss justification at length. He says that this case is inherently different from Sparrow, which dealt with ceremonial rights, as those types of rights are inherently limited – at a certain point the community will have enough fish to meet those needs. On the other hand, trading rights such as those in the case at bar are not inherently aboriginal rights have priority over other users. This priority is something less than exclusivity but nonetheless gives aboriginals priority over other users.
Some things that should be considered when determining whether regulations are in line with aboriginal priority are:
- were the affected aboriginal peoples consulted?
- is there ample compensation for aboriginals?
- has the Crown accommodated aboriginal participation in the regulated conduct?
- do the Crown's needs require a limit on aboriginal rights?
- how has the Crown accommodated different aboriginal groups?
- how important is the right to the affected communities?
- how does the regulation for aboriginals differ from other users?
Finding there was insufficient evidence to decide whether the regulations were reasonable, Lamer orders a new trial to take into account these factors and adduce more relevant evidence.
In the dissent, La Forest argues that satisfying one's own financial interests is clearly not a pursuance of values rooted in cultural distinctiveness. He does not think that aboriginal rights were infringed as the community cannot be said to have an aboriginal right to sell fish to Japan. Further, even if such a right existed, the wording of the preamble of the statute which reflected a "concession" to aboriginal rights to fish for food purposes clearly represented that any rights excluded from the statute were expressly extinguished.
- Priority is important, but does not grant aboriginals exclusive or unlimited rights.