Supreme Court of Canada –  2 S.C.R. 483
The Supreme Court confirmed that “preferential” measures towards Aboriginals in terms of fisheries (exlusive periods, for example) are valid and legal in Canadian law, and they do not violate the Canadian Charter of Rights and Freedoms.
Does the communal fishing licence granted under the Aboriginal Communal Fishing Licences Regulations violate the non-Aboriginal fishers’ equality rights protected by the Charter?
Fishing licences reserved for Aboriginals are not discriminatory and do not violate the Canadian Charter of Rights and Freedoms (unanimous decision – 1 concurring).
Between: John Michael Kapp and others
And: the Crown of Canada
Interveners: Ontario, Quebec, Saskatchewan, Alberta, Tsawwassen First Nation, Haisla Nation, Songhees Indian Band, Malahat First Nation, T’Sou‑ke First Nation, Snaw‑naw‑as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te’mexw Nations), Heiltsuk Nation, Musqueam Indian Band, Cowichan Tribes, Sportfishing Defence Alliance, B.C. Seafood Alliance, Pacific Salmon Harvesters Society, Aboriginal Fishing Vessel Owners Association, United Fishermen and Allied Workers Union, Japanese Canadian Fishermen’s Association, Atlantic Fishing Industry Alliance, Nee Tahi Buhn Indian Band, Tseshaht First Nation and Assembly of First Nations
In 1982, the Commission on Pacific Fisheries Policy issued a report (Turning the Tide, A New Policy for Canada’s Pacific Fisheries) which linked the dire state of economic development of Pacific Coast Aboriginal peoples with their being prohibited from engaging in commercial fishing. It recommended that the federal government negotiate fishery agreements with these communities that would give them a stake in the commercial fishery.
In the early 1990s, the Department of Fisheries and Oceans Canada (DFO hereafter) began consultations with these communities in order to help it fashion its new fishery regulations. In 1992, the Aboriginal Fisheries Strategy (AFS hereafter) was introduced by DFO, which set out to respect the principles of Sparrow and to increase the communities’ share in fisheries management, with minimal impairment of non-Aboriginal fisheries. The objective of this program was also to favour these communities’ economic development by making them more sustainable and independent from the federal government (DFO, 2008a). The cornerstone of the strategy was the granting of communal fishing licences to Aboriginal organizations, which gave them additional rights and privileges under the Aboriginal Communal Fishing Licences Regulations.
In 1998, a communal fishing licence was granted to the Musqueam, Burrard and Tsawwassen Indian Bands, which permitted some of their members to fish for sockeye salmon, for food, social and ceremonial purposes and for sale, a full day before the non-Aboriginal fisheries were allowed. The B.C. Fisheries Survival Coalition, made up of some 145 non-Aboriginal commercial fishers, protested by fishing during their prohibited time in order to build a test-case seeking a declaration of the unconstitutionality of the Aboriginal Communal Fishing Licences Regulations, the other related regulations and the AFS.
Kapp et al.: The communal fishing licence and the whole AFS are discriminatory towards them on the basis of their race.
The Crown of Canada: The Aboriginal Fisheries Strategy’s objective pertaining to fisheries regulations is to improve the living conditions of a disadvantaged group: in this case, the Aboriginal communities. This is considered an affirmative action, which is allowed under the Charter.
British Columbia Provincial Court (2003): The communal fishing licence breached the accused’s equality rights and this impairment cannot be justified under section 1 of the Charter. The proceedings against the non-Aboriginal fishers were stayed.
Supreme Court of British Columbia (2004): The Crown’s appeal was allowed because the AFS was not considered discriminatory towards the non-Aboriginal fishers since the prohibition did not perpetuate or promote the idea that they were less capable or worthy of recognition as human beings and members of Canadian society. The stay was lifted and convictions were entered against Kapp et al.
British Columbia Court of Appeal (2006): Kapp et al.’s appeal was dismissed.
McLachlin, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein
The conviction is upheld. Kapp et al. were treated distinctively on the sole reason of their race. But not all distinction is discriminatory; for example, a government program established to ameliorate a disadvantaged group in Canadian society will, by definition, exclude members of other groups. This is called affirmative action.
The objective of the Aboriginal Fisheries Strategy, the communal fishing licences and other regulations pertaining to the strategy’s application was to provide economic opportunities to Aboriginal communities in order to make them self-sufficient in the long term. This relates to the indisputable fact that Aboriginal people are socially and economically disadvantaged compared with their Canadian counterparts.
As for the section 25, it can be applied only to Aboriginal constitutional rights and is merely interpretative provisions. It goes like this :
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
Bastarache: The appeal is dismissed on the basis of section 25 of the Charter, which states that Aboriginal rights and freedoms cannot be affected by the Charter. The Aboriginal communal licence system prima facie violates Kapp et al.’s equality rights since it gives a benefit to Aboriginal fishers at the expense of non-Aboriginal ones. Since the AFS relates to the concerned communities’ Aboriginal right to fish, it is protected under section 25 of the Charter.
In 1999, the Auditor General of Canada recommended that a change in the way salmon fisheries are managed on the West Coast should be made for the sustainability of the resource. The best way to plan this new strategy and identify conservation priorities is by collecting catch data to assess the stocks’ quantity (Office of the Auditor General, 1999: 17). Data collected by communities under the AFS were found to be insufficient: there were no uniform standards in place, making the data unreliable.
The recommendation made to DFO was to evaluate the methods used by the First Nations and to make the necessary adjustments (such as producing a guide and setting standards in data collecting) in order to improve and expand their role in this field (Id.: 18). DFO recognized the problem and agreed to establish a new procedure for data collecting and to involve First Nations in the process (Id.: 18). In response, the Aboriginal Aquatic Resource and Oceans Management program was implemented in 2002 to enable Aboriginal organizations to hire skilled advisors to give them expertise in fisheries management, mostly in scientific and technical areas. The annual budget is $6 million, distributed to First Nations in the Pacific region (DFO, 2009).
The AFS is still in place and is applicable to First Nations without a land claim settlement or a fisheries management regime. Through AFS Agreements, DFO allocates $16 million annually to more than 90 Aboriginal organizations. The funds are to be used for fisheries management, habitat restoration, fish repopulation, research in the area, economic development and consultation with the concerned members of the communities. The funds are distributed through three types of agreements.
The Watershed Agreements are a collaborative approach to fisheries conservation, protection and enhancement in the Skeena River area. Additional project funding can be given to community initiatives. The cornerstones of the strategy are the Comprehensive Fisheries Agreements, which are more detailed agreements between DFO and Aboriginal organizations (DFO, 2008b). As for the communal licences, they are still issued to Aboriginal organizations in the Pacific region and are of different types. They can be for a single species, to permit the harvesting of one species, usually salmon, on the Fraser River and spawn-on-kelp in the Pacific North Coast region. Multi-species licences also exist, which allow for the harvesting of more than one species, such as salmon, herring and shellfish in the North and South Coast areas. The supplemental licences are given to Aboriginal organizations that have trouble reaching the amount of fish they require to survive in order to allow them to fish outside their main area of harvesting. Licences for the erecting of dry racks, for ceremonial purposes and for the interim during AFS negotiations are also possible (DFO, 2008c).
Conflicts with non-Aborigials’ rights
The Court’s decision in Kapp increased the protection for Aboriginal rights in situations when they are in conflict with the equality rights of non-Aboriginal people. It achieved this first of all by the new test for the Charter set forth in this decision. By focusing on the characteristics and circumstances of the beneficiary group instead of the excluded one, the program has less chance of being challenged in the courts multiple times (Kracier, 2009: 158-160). According to constitutional scholar Patrick Monahan, this test clarified equality law for future reference (Makin, 2009: A8). Secondly, the decision led to the Court’s recognition that the protection of Aboriginal and treaty rights is the gateway to the reconciliation of Aboriginal and non-Aboriginal peoples in Canada (Dalton, 2008).
In British Columbia, the issue divided the population, many of whom felt that Aboriginal fishermen should not have preferential treatment in the commercial fishery. They argued that First Nations represent 2.8% of the province’s population, but 40% of the number of commercial salmon fishermen. With less fish stock available than before on the Pacific Coast, they feel that they are being greatly disadvantaged by the opening of the fishing season one day later than for those holding Aboriginal communal licences (Milke, 2008: A8). The B.C. Fisheries Survival Coalition went as far as calling the AFS an affirmative program that was exercising segregation (Fitzpatrick, 2008: A10).
R. v. Sparrow,  1 S.C.R. 1075
R. v. Kapp, 2003 BCPC 279
R. v. Kapp et al., 2004 BCSC 958
R. v. Kapp, 2006 BCCA 277
Aboriginal Communal Fishing Licences Regulations, SOR/93‑332
Dalton Jennifer E. 2008. Equality Rights versus Aboriginal Reconciliation: An Assessment of R. v. Kapp., in The Court. On-line. http://www.thecourt.ca/category/case-name/kapp-2008/. Retrieved on February 16, 2010.
Fisheries and Oceans Canada. 2008a. Aboriginal Fishing, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/ab_fishg_e.htm. Retrieved on February 17, 2010.
Fisheries and Oceans Canada. 2008b. AFS Agreements, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/afs_agrmt_e.htm#. Comprehensive Fisheries Agreements. Retrieved on February 17, 2010.
Fisheries and Oceans Canada. 2008c. Communal Licences, in Pacific Region Treaty and Aboriginal Fisheries Programs. On-line. http://www.pac.dfo-mpo.gc.ca/tapd/com_lic_e.htm. Retrieved on February 17, 2010.
Fisheries and Oceans Canada. 2009. Aboriginal Aquatic Resource and Oceans Management (AAROM). On-line. http://www.pac.dfo-mpo.gc.ca/tapd/aarom_e.htm. Retrieved on February 17, 2010.
Fitzpatrick Meagan. 2008. Native bands’ exclusive fishing rights upheld; Top Court Ruling, in The National Post, June 28: A10.
Kracier Sarah T. 2009. R. v. Kapp: Aboriginal Fishing, Andrews and Affirmative Action in the Supreme Court of Canada, in National Journal of Constitutional Law 25: 153-160.
Makin Kirk. 2009. “Top court solved vexing problem, expert says,” in The Globe and Mail, April 18: A8.
Milke Mark. 2008. “Our constitution’s illiberal approach to race,” in The Calgary Herald, July 6: A8.
Office of the Auditor General. 1999. Pacific Salmon: Sustainability of the Fisheries. On-line. http://www.oag-bvg.gc.ca/internet/docs/9920ce.pdf. Retrieved on February 16, 2010.