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Donald Gladstone and William Gladstone, Appellants v. Her Majesty The Queen, Respondent, and 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

País/Territorio
Canadá
Tipo de la corte
Nacional - corte superior
Fecha
Ago 21, 1996
Fuente
UNEP, InforMEA
Nombre del tribunal
Supreme Court of Canada
Juez
Lamer
La Forest
LHeureux Dubé
Sopinka
Gonthier
Cory
McLachlin
Iacobucci
Major
Número de referencia
[1996] 2 S.C.R. 723
Idioma
Inglés
Materia
Pesca
Palabra clave
Pueblos indígenas Permiso de pesca Autorización de pesca Licencia de pesca
Resumen
The accused were charged under s. 61(1) of the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper license contrary to s. 20(3) of the Pacific Herring Fishery Regulations. One of the accused produced an Indian food fish license permitting him to harvest 500 pounds. 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 by reason of the aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982. The Supreme Court held that the appeal should be allowed. The court emphasized that in order to be recognized as an aboriginal right an activity had to be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right. The regulations under which the accused were charged prohibited all sale or trade in herring spawn on kelp without a particular license. 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. An aboriginal right to trade herring spawn on kelp on a commercial basis was established. Next, the Court examined whether the aboriginal right had been extinguished. Such intention had to 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. More importantly, the government had, at various times, given preferences to aboriginal commercial fishing. The test for determining whether the government had infringed aboriginal rights involved (1) asking whether the legislation had 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 appellants demonstrated a prima facie interference with their aboriginal rights. Justification of infringements of aboriginal rights involved a two part test. The government had to 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. Aboriginal rights were a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights were, where the objectives furthered by those limits were of sufficient importance to the community as a whole. With regards to the distribution of the fisheries resource, 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, were the type of objectives which could satisfy this standard. The evidence presented in this case was insufficient for the Court to determine whether the government’s regulatory scheme was justified.
Texto completo
1996scc74.html

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