Supreme Court of Canada –  1 S.C.R. 294
The federal government has jurisdiction to legislate regarding conservation, and such legislation can infringe aboriginal rights.
Are the accused, Jack et al., guilty of fishing for salmon during a prohibited period contrary to s. 19 of the Fisheries Act?
Jack et al. are guilty. Even if a fishing right was proven, it would be overridden by the prohibitory order, as it was made for conservation purposes (unanimous decision – 1 concurring).
Between: Joseph Daniel Jack, Harold Lewis Joe, Calvin Patrick Antoine, John Jimmy, Bernard Joe, Gordon Leon Goldsmith, Samuel Johnny Jimmy and Wilburt Joseph Canute
And: the Crown of Canada
Intervener: British Columbia
Adopted in 1871, section 13 of the Terms of Union of British Columbia and Canada reads as follows:
The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union.
To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.
Many years later, Jack et al., Indians under the Indian Act and members of the Cowichan band, were arrested while fishing for salmon and being in possession of recently fished salmon. They were convicted of fishing for salmon in certain rivers during a prohibited period in violation of the Fisheries Act. They had been fishing for food without a permit, during a time when the fisheries were closed for conservation purposes.
Jack et al.: Article 13 imposes the obligation to continue British Columbia’s existing policy of non-interference with Indian fishing rights prior to Confederation. Thus, the Parliament of Canada does not have jurisdiction to impose fishing laws on Aboriginals that limit their right to fish for food. Indians are therefore exempt from the federal Fisheries Act and Jack et al. should be acquitted.
The Crown: The Parliament of Canada has jurisdiction over Indians and reserve lands pursuant to art. 13. Section 19 of the Fisheries Act is applicable and so Jack et al. are guilty of violating it.
British Columbia: Jack et al. have no status to invoke rights under an inter-governmental agreement to which they were not parties.
The Provincial Court of British Columbia: Jack et al. are guilty of contravening s. 19 of the Fisheries Act.
British Columbia Court of Appeal: Jack et al. had no status to invoke the Terms of Union, as it was concluded between the provincial and federal governments and they were not party to it. They are therefore guilty.
Laskin, Martland, Ritchie, Pigeon, Beetz, Estey, Pratte, Mclntyre
Since this intergovernmental accord was constitutionalized, it can be invoked by Jack et al. despite their being a third party.
Article 13 of the Terms of Union cannot be interpreted as limiting federal jurisdiction over fisheries or Indians. Even if the province of British Columbia had a policy of tolerance towards fishing by Indians, there is no legal basis that binds the federal government to do the same.
There is no basis for the protection of Indian fishing rights, if they exist, in art. 13.
As a result, the Fisheries Act applies to Jack et al., and the convictions stand.
This decision underlined a new issue regarding the Indian fishing right : the depletion of natural resources. Thus, Justice Dickson acknowledged that the Indian fishing right must be balanced against the need for conservation (Cohen, 2010).
Consequently, a hierarchy of priorities was created: resource conservation, Indian fishing rights, non-Indian commercial fishing, and non-Indian fishing for sport (Murphy, 2008).
After this case, the Constitution Act, 1982, gave official and constitutional recognition of Aboriginal rights at s. 35(1). They can therefore continue to be invoked as a defense to a charge laid under a law whose application is in violation of such rights. However, in order to amount to a defense, the existence of the Aboriginal right must be proven first.
The Sparrow case, which came ten years later, affirmed the Indian right to fish for food and ceremonial needs (Lajoie and Gélineau-Asseray, 2004). If such a right is proven, however, it is not absolute (Pentney, 1998). The Sparrow case also establishes the instances in which the government can justifiably limit Aboriginal rights, for example, for the purpose of conservation (Lajoie and Gélineau-Asseray, 2004).
COHEN, Commission. 2010. The Aboriginal and Treaty Rights Framework Underlying the Fraser River Sockeye Salmon Fishery. In Audience-pièces. En ligne : http://www.cohencommission.ca/fr/PieceAConviction.php. Consulté le 17 juillet 2013
Lajoie, Andrée and Éric Gélineau-Asseray. 2004. “Droits autochtones. Les conceptions canadiennes des droits ancestraux.” Revue Juridique Thémis 38: 489 – 529.
MURPHY, Ava ; DUNCAN, Gareth et PIGGOTT, Gillian. 2008. Primer : Canadian Law on Aboriginal Treaty Rights. University of British Columbia Faculty of Law. En ligne : http://www.law.ubc.ca/files/pdf/enlaw/primer_complete_05_10_09.pdf. Consulté le 16 juillet 2013.
PENTNEY, William. 1988. “Section 35: The substantive guarantee.” University of British Columbia Law Review 22: 207.