[1996] 2 S.C.R. R. v. N.T.C. Smokehouse Ltd. 672
N.T.C. Smokehouse Ltd. Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of British Columbia,
the Canadian National Railway Company,
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. N.T.C. Smokehouse Ltd.
File No.: 23800.
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 -- Right to sell fish (salmon) -- Food processor
charged for selling salmon contrary to regulations -- Large quantities of salmon
purchased from natives -- Natives catching salmon under food fishing licence --
Regulations prohibiting sale or barter of fish caught under food fishing licence --
Whether an aboriginal right to sell salmon -- Whether the aboriginal right extinguished --
Whether aboriginal right infringed by regulations -- Whether any infringement justified --
Constitution Act, 1982, ss. 35(1), 52 -- British Columbia Fishery (General) Regulations,
SOR/84-248, ss. 4(5), 27(5) -- Fisheries Act, R.S.C. 1970, c. F-14, s. 61(1).
The appellant, a food processor, was charged under s. 61(1) of the Fisheries Act with
selling and purchasing fish not caught under the authority of a commercial fishing
licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, and
with selling and purchasing fish caught under the authority of an Indian food fish licence,
contrary to s. 27(5) of the Regulations. The fish had been caught by Indian bands under
authority of food fishing licences, sold to the appellant and resold by the appellant in the
commercial market. Section 27(5) of the Regulations at the time prohibited the sale or
barter of any fish caught under the authority of an Indian food fish licence and s. 4(5)
prohibited anyone from purchasing such fish. The appellant was convicted and its appeal
to the Court of Appeal was dismissed. The constitutional questions stated by this Court
queried whether ss. 4(5) and 27(5) of the Regulations were of no force or effect with
SNIPPETS:
N.T.C. Smokehouse Ltd. Appellant v.
Her Majesty The Queen Respondent and The Attorney General of British Columbia, the Canadian
Constitutional law -- Aboriginal rights -- Right to sell fish (salmon) -- Food processor
gement justified --Constitution Act, 1982, ss.
The appellant, a food processor, was charged under s.
4of the British Columbia Fishery Regulations, and with selling and purchasing fish caught
The appellant was convicted and its appeal to the Court of Appeal was dismissed.
52 of the Constitution Act, 1982, by reason of the aboriginal rights within the meaning of s.
Here, however, no significant distinction existed between the two bands selling the fish.
The findings of fact made by the trial judge did not support the appellant's claim that,
They prohibit commercial and non-commercial sale, trade and barter of fish, including the
The type of aboriginal practices, customs and traditions, the particular aboriginal culture
The intention to extinguish must nonetheless be clear and plain, in the sense that the
The aboriginal right to trade fish for sustenance was not extinguished for the reasons given
for the intervener the Attorney General of British Columbia.
The charges related to the purchase of salmon by the appellant arose out of a series of
The Department of Fisheries and Oceans had issued Indian food fish licences authorizing
He held that the trial judge made an error of law because only considering the situation of
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