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ENVR 4650 (2)

ENVR 4650 midterm case studies .doc

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University of Manitoba
ENVR 4650
Jonathan Scarth

R. v. Sparrow (SCC, 1990) - Musqueam Band member - aboriginal right to fish had been regulated for many years under Indian food fishing regulation under Fisheries Act - nonetheless, court treated right to fish as unextinguished and in unregulated state - Recognition of aboriginal right to fish for salmon in the Fraser River “where his ancestors has fished from time immemorial..” R. v. Van Der Peet (SCC, 1996) - rights held by aboriginal people by “reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada” - [for a right to exist] “Must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right” - to be “integral” a practice must be: - of central significance - defining characteristic - one of the things that make the culture distinctive - can evolve, but must trace origins to pre-contact culture R. v. Marshall 1 (SCC,1999) - treaty said: “indians would no longer trade any commodities except with the managers of truck houses” trading posts - construed as protection for aboriginal right to commercial fishing activity to make a moderate livelihood - “truck houses” implied that the aboriginal community was engaged in commercial fishing R. v. Morris (SCC, 2006) - treaty said: “at liberty to hunt over the unoccupied lands as formerly” - construed as modern right to nightlight with high-powered rifles R. v. Gladstone (SCC, 1996) - aboriginal commercial fishery not internally limited - legislation could pursue “economic and regional fairness” - non-aboriginal use of
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