Interesting read. I was particularly interested in this section of case law:
The majority of the Court of Appeal for British Columbia held that the requirement for a fishing licence, imposed by the British Columbia Fishery (General) Regulations, did not constitute a prima facie infringement of, or interference with, an aboriginal right. Moreover, the Bulkley River was found not to be “on the reserve” within the meaning of the Indian Act and the Band’s fishing by-law did not apply beyond the boundaries of the reserve. R. v. Nikal, 1993 4 C.N.L.R. (B.C.C.A.), rev’g [1991] 1 C.N.L.R. 162 (S.C.B.C.), which aff’d 1989 4 C.N.L.R. 143 (B.C. Prov. Ct.) [NOTE: leave to appeal to the Supreme Court of Canada was granted on March 10, 1994]
• Where the band to which the accused belonged claimed that its allocation of sockeye salmon had not been met, the closure of a food fishery pursuant to the British Columbia Fishery (General) Regulations interfered with their aboriginal right to catch the amount of fish needed to satisfy their reasonable and societal needs. While the regulations had a valid legislative objective as they were directed toward the management and conservation of the fishery resource in British Columbia, they did not spell out the priority which must be given to the native food fishery. Nor was it established that the interference was justified. R. v. Robinson, [1991] 4 C.N.L.R. 125 (B.C. Prov. Ct.)
• The majority of the Court of Appeal for British Columbia held that the commercial sale of fish (salmon) was not integral to the organized society of the Upper Sto:lo people and their distinctive culture prior to contact with the Europeans. The practice which was induced and driven by European influences does not qualify for protection and priority as an aboriginal right. Persons of aboriginal ancestry are not precluded from participating in the commercial fishery but they are subject to the same rules as other Canadians who seek a livelihood from that resource. As the accused was not exercising an aboriginal right when selling fish caught under an Indian Food Fish Licence, she was in contravention of the fishing regulations prohibiting such sale. R. v. Van der Peet, (1993) 80 B.C.L.R. (2d) 75 (C.A.), 83 C.C.C. (3d) 289, 29 B.C.A.C. 209, 48 W.A.C. 209 [NOTE: leave to appeal to S.C.C. was granted on March 10, 1994]
