Supreme Court of Canada –  2 S.C.R. 723
The Gladstone decision was handed on the same day as Van der Peet and Smokehouse. They form what is referred to as the Van der Peet trilogy. The test construed in Sparrow for assessing the infringement upon aboriginal rights was completed, including a clarification of the priority doctrine.
The basic insight of Sparrow — that aboriginal rights holders have priority in the fishery — is a valid and important one; however, the articulation in that case of what priority means, and its suggestion that it can mean exclusivity under certain limited circumstances, must be refined to take into account the varying circumstances which arise when the aboriginal right in question has no internal limitations. (para. 61 of the decision).
Do the fisheries regulations infringe on the Gladstones aboriginal right to trade herring spawn on kelp? If so, are they justified for conservation reasons?
The fisheries regulations did infringe on their aboriginal right, but a new trial must be held to determine whether this infringement is justified or not (8 against 1 – 2 concurring).
Between: Donald Gladstone and William Gladstone
And: the Crown of Canada
Interveners: British Columbia, Alberta, the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation, the First Nations Summit, Delgamuukw et al., Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner
Donald and William Gladstone are members of the Heiltsuk Band, in British Columbia. Neither had a licence to sell herring spawn on kelp, only an Indian food fish licence.
In 1988, they shipped about 4 200 pounds of herring spawn on kelp. They also brought 35 pounds of herring spawn to a Vancouver fish store to potentially be sold. When they left the store, they were arrested and the 4 200 pounds of fish was seized. They were charged for attempting to sell and for selling herring spawn on kelp without the appropriate Category J licence.
The Gladstones: In this case, they did not attempt to sell the fish, they only asked whether the enterprise was “interested” in herring spawn on kelp. Even so, the regulations infringe on their rights to trade herring spawn on kelp. The Crown did not prove that the regulations fulfilled a conservation objective, and failed to fulfil its fiduciary duty towards the Heiltsuk Band.
The Crown of Canada: The regulations do not infringe on the Gladstone’s presumed aboriginal rights, and even if they did, they would be justified for conservation reasons.
Provincial Court: The evidence of an “attempt to sell” the fish was considered “overwhelming”, The Heiltsuk do have an aboriginal right to trade spawn on kelp that has not been extinguished. However, the regulations are meant to control the resource, and even though they pose an unreasonable limit to the Gladstones’ rights, they are justified because of their valid objective for conservation.
British Columbia Supreme Court (1991): The Gladstones only offered to treat the fish, and did not offer to sell it, and the regulations do not infringe on their aboriginal rights.
British Columbia Court of Appeal (1993): The evidence is sufficient to prove that the Gladstones were guilty of an attempt to sell. They do have an aboriginal right to trade herring spawn on kelp, and their actions were consistent with this right. The regulations interfere with these rights, but it is justified. The Native Indian Brotherhood had been consulted, and they are already allocated some herring spawn on kelp. The Crown has fulfilled its responsibility. Lambert J.A. dissented, arguing that the Gladstones had the right to trade the fish in tons, and the infringement was not justified since there is no conservation concern, the Band was not compensated, and was not specifically consulted.
Lamer, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major
Lamer ( Sopinka, Gonthier, Cory, Iacobucci and Major): The argument of the Gladstones that they had not really tried to sell the fish was rejected. They did.
The Gladstones were doing commercial exploitation of herring spawn on kelp, while the regulations prohibit all sale. They do have an aboriginal right to exchange herring spawn on kelp for money, even on a commercial scale, because it was a central feature of their culture prior to contact. This right has not been extinguished before 1982, because there was no clear and plain intention to that effect on the Crown’s part.
The Category J licence requirement cannot be scrutinized without considering the entire regulatory scheme of which it is a part (contrary to Sparrow, where the issue was only a matter of net length), and not only the concerned disposition. The guidance provided by Sparrow, and the condition this case states, are not to be all respected. They are factors to consider, but their consideration will vary according to the legal and factual context. Even if one question is answered in the negative does not mean there is no infringement.
The government follows many steps to determine the fish quotas and licences to be distributed, but at the infringement stage, the scheme “can be considered as a whole” (para. 52 of the decision). When considering the result of this scheme, which is to limit significantly the amount of herring that can be harvested, the conclusion is that there is an infringement.
In Sparrow, the rights alleged – fishing for ceremonial purposes – had an internal limitation. Commercial fisheries, however, does not, except for the demand of the market and the availability of the resource. To give them priority would therefore be to give them almost an exclusivity. The doctrine of priority only requires, in such a situation, that the government takes into account the existence of aboriginal rights when allocating the resource in a manner respectful of their priority. With conservation, the Court gives new examples of objectives that could satisfy the justification test : “the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups” (par. 75 of the decision).
Very little evidence was provided to the Court about the objectives and the decision making of the Crown in limiting the herring’s allocating. However, it is clear that the population of herring is hard to track. A new trial was ordered.
L’Heureux-Dubé and McLaghlin gave concurring motives.
Rather than pursuing the issue, the Crown dropped the charges (Harris, 2005). The Department of Fisheries increased the Heiltsuk access to fishery, and issued more licences to its members. The Department interpreted the decision to require that priority is given to conservation and Aboriginal ceremonial and food fishery (Id.). Steps were taken to formalize consultation with First Nations, but final decisions remain with the DFO (Id.).
Gladstone was seen as a decision limiting aboriginal trading rights, since the Court refused to recognize the Heiltsuk’s traditional territory dimension, and its governance powers in regulating the commercial fisheries to “inherently” limit the harvest (Id.). The Council initiated a Federal Court action to have its management rights recognized, but the trial judge dismissed the claim in a two pages decision.
Gladstone also highlights the important vagueness when it comes to assessing aboriginal rights, and the case-by-case nature of this analysis (Isaac, 2004).
R. v. Van der Peet,  2 S.C.R. 507
Calder v. Attorney‑General of British Columbia,  S.C.R. 313;
R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672
Harris, Douglas. 2005. “Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-on-Kelp Fishery” in U.B.C. Law Review, Vol. 34:1, p. 195-238. On-line http://faculty.law.ubc.ca/harris/Gladstone/Text/territoriality.pdf
Isaac, Thomas. 2004. Aboriginal law. Saskatoon: Purich Publishing, 559 p.