Commercial Fishing Under Aboriginal and Treaty Rights: Supreme Court of Canada Decisions

The Library of Parliament recently released a research publication entitled Commercial Fishing Under Aboriginal and Treaty Rights: Supreme Court of Canada Decisions:

"In R. v. Sparrow, the Supreme Court of Canada considered for the first time the scope of section 35(1) of the Constitution Act, 1982, which recognizes and affirms the Aboriginal and treaty rights of the Indigenous peoples of Canada. Significantly, the Supreme Court made it clear that the rights recognized and affirmed by section 35 are not absolute and outlined a test whereby the Crown may justify legislation that infringes on Aboriginal rights. In 1996, the Supreme Court, in a trilogy of cases dealing with commercial fishing rights (R. v. Van der Peet, R. v. N.T.C. Smokehouse Ltd. and R. v. Gladstone), laid further groundwork on how Aboriginal rights should be defined. The Supreme Court decreed that a purposive approach must be applied in interpreting section 35 of the Constitution Act, 1982; in other words, the interests that section 35 was intended to protect must be identified. To define an Aboriginal right, one must first identify the practices, traditions and customs central to Indigenous societies that existed in North America prior to contact with the Europeans; to be recognized as an Aboriginal right, the practice, tradition or custom must also be an integral part of the distinctive culture of Indigenous peoples. The Supreme Court reiterated that section 35 did not create the legal doctrine of Aboriginal rights but emphasized that these rights already existed under common law. The Crown can no longer extinguish existing Aboriginal rights but may only regulate or infringe on them consistent with the test laid out in the Sparrow decision. The following is a summary of the cases mentioned above, as well as the decisions of the Supreme Court in R. v. Marshall, which considered a treaty right to a small‑scale commercial fishery, and Lax Kw’alaams Indian Band v. Canada (Attorney General), which examined the evolution of pre‑contact commercial fisheries."