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Race-based Fishery Questions, Redux

Douglas Harris writes in about the recent BC Court of Appeal ruling Regina v. Kapp. At its heart, the case is about whether or not aboriginal only fisheries are race-based and therefore unconstitutional. Harris is a legal scholar at the University of British Columbia and says the aboriginal fishery is not based on race:

Aboriginal rights are not based on race, but, as the Supreme Court of Canada has indicated in another fishing rights case, on the fact that “when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.”

The source of an aboriginal right to fish, therefore, lies not in a racial designation, but rather in the use and management of the fisheries by distinct political communities whose existence long preceded the British assertion of sovereignty.

The Supreme Court has recognized a constitutional right of aboriginal peoples to a food, social and ceremonial fishery. In one instance it has also recognized an aboriginal right to a commercial fishery. In doing so, the Supreme Court noted that the constitutional entrenchment of aboriginal rights provides a means by which to reconcile the prior aboriginal presence with Crown sovereignty.

There is more in the story including a link to the court decision and comments from readers. I blogged about the case earlier this month.


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  1. […] And, Indian Affairs Minister Jim Prentice says the Canadian government won’t stop BC’s treaties, despite the fact they appear to create ‘race-based’ fisheries. Prentice suggests that while Prime Minister Steven Harper has expressed concern about fishing policies based on aboriginal ancestry, BC’s treaties do not actually use race as a basis for fishing rights. The Vancouver Sun recounts Prentice’s comments this way: ‘’This is not a fishery on the Fraser River that we’re proposing that is racially segregated. It is quota-segregated, if you will, or harvest allotment-segregated’’ [said Prentice]. […]

  2. […] Court Decision in BC’s Salmon Fishery Race-based Fishery Questions, Redux Trackback· […]