Does anyone know which act of legislation allows First Nations fishing rights before commercial and receational? I'm hoping to find out the original treaty or legislation that gave rights to FN for fishing for food, social, and ceremonial purposes and the like.
I'm doing a paper on fisheries mismanagement and wondered if anyone knows what, if any, formal law exists that puts aboriginal rights first before anyone else when it comes to fishing and fish allocation, or if it was just a case decision, etc. because i'm planning on discussing/recommending potential changes to such legislation
thanks in advance
It was the Sparrow Case. In 1990, Ronald Sparrow, a Musqueam, appealed his conviction on a fisheries charge to the the Supreme Court of Canada, which ruled that First Nations have an aboriginal right as defined in the Constitution to fish for food, social and ceremonial purposes and that this right takes priority over all others except conservation
. In overturning Sparrow's conviction, the court ruled that Section 35 of the Constitution Act, 1982, the section that recognizes and affirms existing aboriginal and treaty rights, provides "a strong measure of protection for aboriginal rights" and any proposed regulations that infringe on the exercise of those rights must be justified. The court ruled that:
- Aboriginal and treaty rights are capable of evolving over time and must be interpreted in a generous and liberal manner;
- Governments must regulate existing aboriginal rights only for a compelling and substantial objective such as the conservation and management of the resource; and
- After conservation goals are met, aboriginal people must be given priority to fish for food, social and ceremonial purposes.
The Sparrow decision the Supreme Court of Canada then, in addition to setting First Nations rights over all other except conservation, also re-affirmed the principle that aboriginal rights contained in the Canadian Constitution must be given a generous and liberal interpretation.
There is, of course, no "original treaty" to refer to as there were no treaties signed in BC (other than a few small ones on VI) until the Nisgaa deal. The Constitution Act of 1982 was enshrining the rights recognized by Canadian common law (the Royal Proclamation is usually recognized as an extension of common law, rather than as a source of legal rights in and of itself). In defining Aboriginal rights, other than Aboriginal title (to Land), the Supreme Court of Canada has held that claimants must prove that the right was an integral part of their distinctive indigenous societies prior to European contact. While these rights may be now exercised in a modern way, practices that arose from European influence are not protected. This paradox is best demonstrated in reference to the commercial trade in furs or fish, which the courts have seen as the product
of European contact rather than integral to Aboriginal societies prior to contact. Fishing for food, community or ceremonial purposes is, however, a protected Aboriginal right and as such may be exercised in a modern way with modern fishing equipment.