R. v. Gladstone
Encyclopedia
R. v. Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada
decision on non-treaty aboriginal rights under section 35
of the Constitution Act, 1982
. The Court modified the Sparrow test
for the extinguishment
of aboriginal rights to give more deference to the government in protecting commercial fishing rights.
contrary to the federal Fisheries Act. In their defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part of the Hieltsuk band's way of life prior to contact.
, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test
. In analysing the rights infringement he rejected prioritizing limited natural resources as described in R. v. Sparrow. Instead, he suggested that in the regulation of commercial fishing the regard should be given to regional fairness among all people when distributing fishing resources.
Canadian Aboriginal case law
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on non-treaty aboriginal rights under section 35
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
. The Court modified the Sparrow test
R. v. Sparrow
R. v. Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35 of the Constitution Act, 1982...
for the extinguishment
Extinguishment
Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...
of aboriginal rights to give more deference to the government in protecting commercial fishing rights.
Background
William and Donald Gladstone were members of the Heiltsuk Band in British Columbia. They were both charged with selling herring spawncontrary to the federal Fisheries Act. In their defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part of the Hieltsuk band's way of life prior to contact.
Opinion of the Court
Chief Justice LamerAntonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test
R. v. Van der Peet
R. v. Van der Peet, [1996] 2 S.C.R. 507 is a leading case on aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an...
. In analysing the rights infringement he rejected prioritizing limited natural resources as described in R. v. Sparrow. Instead, he suggested that in the regulation of commercial fishing the regard should be given to regional fairness among all people when distributing fishing resources.
See also
- List of Supreme Court of Canada cases (Lamer Court)
- The Canadian Crown and First Nations, Inuit and MétisThe Canadian Crown and First Nations, Inuit and MétisThe association between the Canadian Crown and Aboriginal peoples of Canada stretches back to the first interactions between North American indigenous peoples and European colonialists and, over centuries of interface, treaties were established concerning the monarch and aboriginal tribes...
Canadian Aboriginal case law
- Numbered TreatiesNumbered TreatiesThe numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
- Indian ActIndian ActThe Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
- Section Thirty-five of the Constitution Act, 1982Section Thirty-five of the Constitution Act, 1982Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
- Indian Health Transfer Policy (Canada)Indian Health Transfer Policy (Canada)The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...