FieldNotes

Last week, the BC Court of Appeal ruled that native-only fisheries are not illegal. This decision (Regina v. Kapp, BCCA 277) builds from a 2003 decision (R. v. Kapp, 2003 BCPC 0279) in which one provincial court judge argued that the constitutional equality rights of non-native fishers were violated by native-only fisheries. In the current Court of Appeals decision, the judge indicated that non-aboriginal fishers have nothing to complain about and that constitutional issues were not in play. From the Judgement:

In my opinion, the communal fishing licences granted by the government to the Musqueam, Tsawwassen and Burrard bands were a specific right (albeit for a 24‑hour period) conferred on them by reason of their special aboriginal status. Furthermore, the licences were issued as part of a policy directed at resolving the long-standing grievances in respect of the salmon fishery by improving aboriginal access to the commercial fishery and including aboriginal communities in the management of the fishery resource. As such, they may form part of the foundation of rights that may be acquired through treaties in the future and which would then have the protection of Section 35 [of the Canadian Constitution].

See the press release and reaction of the First Nations Summit. Background on this case is included.

The Vancouver Sun reported on this decision on Friday, June 9, 2006 (B1; B4); no link available. The CBC.ca story on the case is here. Reaction against the decision by the BC Fisheries Coalition is mentioned in both stories. They assert that the BC fishery is race-based and therefore illegal under Canadian law.