[1996] 2 S.C.R. R. v. Gladstone 723
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
Indexed as: R. v. Gladstone
File No.: 23801.
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 -- Natives approaching buyer with sample of fish
product to determine if "interested"in buying -- Regulations requiring specific licence for
harvesting and sale of fish product -- Natives not having proper licence to sell fish
product -- Evidence indicating large scale trade in fish product prior to contact with
Europeans -- Whether an aboriginal right to harvest and trade in fish product -- Whether
the aboriginal right extinguished -- Whether aboriginal right infringed by regulations --
Whether any infringement justified -- Constitution Act, 1982, ss. 35(1), 52 -- Fisheries
Act, R.S.C. 1970, c. F-14, s. 61(1) -- Pacific Herring Fishery Regulations, SOR/84-324, s.
(3).
Commercial law -- Attempt to sell -- Natives approaching buyer with sample of fish
product to determine if "interested" in buying -- Whether conduct amounting to attempt
to sell.
The accused were charged under s. 61(1) of the Fisheries Act with attempting to sell
herring spawn on kelp caught without the proper licence contrary to s. 20(3) of the
Pacific Herring Fishery Regulations. They had shipped a large quantity to the Vancouver
area and approached a fish dealer with a sample to see if he was "interested". One of the
accused, on arrest, produced an Indian food fish licence permitting him to harvest 500
pounds. The Supreme Court of British Columbia and the Court of Appeal upheld the
convictions. 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, in
SNIPPETS:
Her Majesty The Queen Respondent and The Attorney General of British Columbia, the Attorney
the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition
Constitutional law -- Aboriginal rights -- Natives approaching buyer with sample of fish
ginal right infringed by regulations --Whether any infringement justified -- Constitution Act,
61-- Pacific Herring Fishery Regulations, SOR/84-324, s.
61of the Fisheries Act with attempting to sell herring spawn on kelp caught without the
The Supreme Court of British Columbia and the Court of Appeal upheld the convictions.
The first step is the determination of the precise nature of the claim being made, taking
This exchange and trade was an integral part of the distinctive culture of the Heiltsuk prior
The appellants' activities, which, the trial judge found, were done in a completely different
More importantly, the government has, at various times, given preferences to aboriginal
As regards the issues of extinguishment and prima facie infringement, the reasons and
to extinguish the aboriginal right to sell, trade and barter fish for commercial purposes.
Under the regulatory scheme they can harvest for commercial purposes only to the limited
Where the aboriginal right has no internal limitation, however, the notion of priority, as
Unlike Sparrow, which considered only the justifiability of conservation objectives, this
Christopher Harvey, Q.C., and Robert Lonergan, for the interveners the British Columbia
The aboriginal right to trade in herring spawn on kelp is preserved by the operation of the
Despite academic appeals for greater clarity and certainty in this area of the law I find
Parliament is not expected to act in a manner contrary to the rights and interests of
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