Supreme Court of Canada –  2 S.C.R. 672
This decision was delivered on the same day as Van der Peet and is part of the Van der Peet triology, which includes three cases concerning the claim of an Aboriginal right to fish commercially by three different First Nations in British Columbia. It gives details about the way to define aboriginal rights recognized and confirmed by section 35 of the Constitution Act, 1982.
Here, the burden of proof imposed on the Aboriginal party is heavy. Dissidence criticized the “frozen” interpretation of aboriginal rights.
Did the Sheshaht and Opetchesaht bands have an Aboriginal right to sell Chinook salmon and did the Fisheries Act and its Regulations infringe unjustifiably upon that right?
The first instance judge concluded that members of the Sheshaht and Opetchesaht possessed an aboriginal right to fish that did not include the right to put in place a commercial practice based on fishing. Since the first instance judge did not make a manifest error when examining the facts, the Supreme Court maintained the convictions (7 judges against 2).
Between: N.T.C. Smokehouse Ltd.
And: the Crown of Canada
Interveners: British Columbia, the Canadian National Railway Company, 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
N.T.C. Smokehouse is a corporation that runs a food processing plant near Port Alberni, British Columbia.
On September 7, 1986 and September 23, 1986, N.T.C. Smokehouse bought 119,435 pounds of Chinook salmon caught by members of the Sheshaht and Opetchesaht bands. These bands had obtained licences from the Fisheries and Oceans Department pursuant to which they had caught the fish. The B.C. Fishery Regulations forbade the sale or barter of any fish caught under the authority of an Aboriginal fishing licence for food and prohibited anyone from purchasing such fish.
From September 8 to October 24, 1986, N.T.C. Smokehouse subsequently sold 105,302 pounds of the salmon to other companies.
N.T.C. Smokehouse was accused under the Fisheries Act of selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to the British Columbia Fishery (General) Regulations, and of selling and purchasing fish caught under the authority of an Indian food fish licence.
N.T.C. Smokehouse: It invoked the Aboriginal bands’ right to sell the fish.
The Crown: The corporation was not Aboriginal and therefore could not invoke Aboriginal rights. Also, if such a right existed, the infringement was justified.
Provincial Court of British Columbia (1990): N.T.C. Smokehouse is convicted of the offences. The argument according to which the regulations violated the Aboriginal right to sell fish is rejected.
County Court of Vancouver Island (1990): Even if such an Aboriginal right existed (the evidence presented was thin), conservation objectives justified the infringement.
British Columbia Court of Appeal (1993): The sale of Chinook salmon by the Sheshaht and the Opetchesaht is not an Aboriginal right. The question of determining whether there is an Aboriginal right or not relates to facts and an appeal court does not have jurisdiction to substitute its examination of the facts to that of the trial judge.
J. Lambert, dissenting, concluded as to an error of law by the trial judge which gives the Court of Appeal jurisdiction to study the question of Aboriginal rights. Accordingly, the Sheshaht and the Opetchesaht had the Aboriginal right to sell Chinook salmon in order to maintain their subsistence, and the Fisheries Act and its relevant Regulations infringe in an unjust manner upon that right.
Lamer, La Forest, Sopinka, Gonthier, Cory, Iacobucci, Major
N.T.S. Smokehouse was allowed to invoke somebody else’s aboriginal right for its defense since its sentence was dependent on the Aboriginal right to sell fish.
To substantiate the right to exchange fish for money or other goods, N.T.C. Smokehouse had to use the Van der Peet test and demonstrate that the exchange was integral to the distinctive Native culture. On the other hand, to substantiate a right to exchange fish commercially, it had the bigger burden of proving that the commercial exchange was integral to the distinctive culture of the Sheshaht and the Opetchesaht since more than 119,000 pounds were sold by 80 band members, in comparison with 10 salmons by one band member in Van der Peet.
According to the trial judge, the Sheshaht and the Opetchesaht never exchanged fish in a commercial way since the sale of salmon was rare before the arrival of the Europeans. They have the Aboriginal right to fish but this does not include the right to set up a commercial practice based on that fishing. Since the trial judge made no palpable or overriding error when studying the facts, the Court had no jurisdiction to review his factual analysis. The convictions are upheld.
See Van der Peet for further details.
R. c. Gladstone,  2 S.C.R. 723
R. c. Van der Peet,  2 S.C.R. 507