R. v. N.T.C. Smokehouse Ltd.

R. v. N.T.C. Smokehouse Ltd.
Collection
Supreme Court Judgments
Date
1996-08-21
Report
[1996] 2 SCR 672
Case number
23800
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 23800
Decision Content
R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672
N.T.C. Smokehouse Ltd. Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of 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 Interveners
Indexed as: R. v. N.T.C. Smokehouse Ltd.
File No.: 23800.
1995: November 27, 28, 29; 1996: August 21.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Aboriginal rights ‑‑ Right to sell fish (salmon) ‑‑ Food processor charged for selling salmon contrary to regulations ‑‑ Large quantities of salmon purchased from natives ‑‑ Natives catching salmon under food fishing licence ‑‑ Regulations prohibiting sale or barter of fish caught under food fishing licence ‑‑ Whether an aboriginal right to sell salmon ‑‑ Whether the aboriginal right extinguished ‑‑ Whether aboriginal right infringed by regulations ‑‑ Whether any infringement justified ‑‑ Constitution Act, 1982, ss. 35(1) , 52 ‑‑ British Columbia Fishery (General) Regulations, SOR/84‑248, ss. 4(5), 27(5) ‑‑ Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1).
The appellant, a food processor, was charged under s. 61(1) of the Fisheries Act with selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, and with selling and purchasing fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the Regulations. The fish had been caught by Indian bands under authority of food fishing licences, sold to the appellant and resold by the appellant in the commercial market. Section 27(5) of the Regulations at the time prohibited the sale or barter of any fish caught under the authority of an Indian food fish licence and s. 4(5) prohibited anyone from purchasing such fish. The appellant was convicted and its appeal to the Court of Appeal was dismissed. The constitutional questions stated by this Court queried whether ss. 4(5) and 27(5) of the Regulations were of no force or effect with respect to the appellant by operation of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of that Act.
Held (L’Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
The Aboriginal Right
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Although the aboriginal right asserted was not one held by the appellant itself but rather held by native bands originally selling the fish, the appellant was entitled to raise the defence given that a conviction hinged on the natives’ sale of the fish being illegal.
An activity, to be recognized as an aboriginal right, must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The Court must first determine the precise nature of the claim being made, taking into account such factors as the nature of the action allegedly done pursuant to an aboriginal right, the government regulation allegedly infringing the right, and the practice, custom or tradition relied upon to establish the right. The Regulations prohibited all sales or trade of salmon caught without a commercial fishing licence. The sale of fish by the Indian bands in question was, however, extensive.
The claim to an aboriginal right to exchange fish commercially places a more onerous burden on the appellant than a claim to an aboriginal right to exchange fish for money or other goods in that the latter claim is subsumed by the larger claim to fish commercially. To prove the right to exchange fish for money or other goods, the appellant need only show that that exchange was integral to the distinctive native culture: however, to prove the right to exchange fish commercially, the appellant needs to go beyond that proof and demonstrate that that exchange, on a scale best characterized as commercial, was integral to the distinctive native culture. The aboriginal right claimed, therefore, was the right to exchange fish for money or other goods. The claim to the right to fish commercially need only be considered if this initial claim has been established.
The Court must determine whether the practice, custom or tradition claimed to be an aboriginal right was, prior to contact with Europeans, an integral part of the distinctive society of the aboriginal people in question. Normally, because the determination of whether or not an aboriginal right exists is specific to the particular aboriginal group claiming the right, distinctions between aboriginal claimants will be significant and important. Here, however, no significant distinction existed between the two bands selling the fish.
The determination of whether the aboriginal right claimed was an integral part of the distinctive native culture depends, in significant part, on the factual evidence. The findings of fact made by the trial judge should not, absent a palpable and overriding error, be overturned on appeal. A review of the evidence and transcripts demonstrated no such error.
The findings of fact made by the trial judge did not support the appellant's claim that, prior to contact, the exchange of fish for money or other goods was an integral part of the distinctive cultures of the native bands involved. The exchange of fish incidental to social and ceremonial occasions was not, itself, a sufficiently central, significant or defining feature of these societies to be recognized as an aboriginal right under s. 35(1) of the Constitution Act, 1982 . The exchange of fish, when taking place apart from the occasion to which such exchange was incidental, could not, even if that occasion were an integral part of the aboriginal society in question, constitute an aboriginal right. This conclusion also disposed of the aboriginal right to fish commercially.
Per L’Heureux‑Dubé J. (dissenting): Section 35(1) must be given a generous, large and liberal interpretation and uncertainties, ambiguities or doubts should be resolved in favour of the natives. Further, aboriginal rights must be construed in light of the special trust relationship and the responsibility of the Crown vis‑à‑vis aboriginal people. Finally, but most significantly, aboriginal rights protected under s. 35(1) have to be viewed in the context of the specific history and culture of the native society and with regard to native perspective on the meaning of the rights asserted.
The "frozen right" approach focusing on aboriginal practices should not be adopted. Instead, the definition of aboriginal rights should refer to the notion of "integral part of distinctive aboriginal culture" and should "permit the evolution of aboriginal rights over time". Case law on treaty and aboriginal rights relating to trade supports the making of a distinction between the sale, trade and barter of fish for, on the one hand, livelihood, support and sustenance purposes and for, on the other, purely commercial purposes. The delineation of aboriginal rights must be viewed on a continuum.
The facts did not support framing the issue in terms of commercial fishing. Transactions were not directed at providing an economic profit. The right claimed was the right to sell, trade and barter fish without more specification and not the right to fish commercially. Moreover, the impugned legislative provisions are not directed only at commercial fishing. They prohibit commercial and non-commercial sale, trade and barter of fish, including the sale, trade and barter of fish for livelihood, support and sustenance purposes. Consequently, the issue here is whether the band’s right to fish includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes.
An aboriginal practice, custom or tradition, to be recognized as a constitutionally protected aboriginal right, must be sufficiently significant and fundamental to the culture and social organization of the particular group of aboriginal people for a substantial continuous period of time. The trial judge, when examining the historical evidence presented at trial, mischaracterized the aboriginal rights claimed, erred in his approach to the interpretation of the nature and extent of such rights, and misapplied the test in Sparrow. These palpable and overriding errors conferred on an appellate court the right to intervene and to substitute its own findings of fact.
The evidence showed that the sale, trade and barter of fish for livelihood, support and sustenance purposes was sufficiently significant and fundamental to the culture and social organization of the native bands involved. The evidence also showed that they sold, traded and bartered fish for livelihood, support and sustenance purposes for a substantial continuous period of time. The type of aboriginal practices, customs and traditions, the particular aboriginal culture and society, and the reference period of 20 to 50 years were considered. Here, trade and exchange of salmon existed long before the first Europeans arrived.
Per McLachlin J. (dissenting): The aboriginal right to sell fish is limited to equivalence with what the aboriginal people in question historically took from the fishery according to aboriginal law and custom. The native people here established that right. They did not need to prove that their traditional ways were identical to those used by them in the fishery to‑day. Such a requirement would preclude the adaptation of aboriginal peoples to the modern era.
Extinguishment
Per L’Heureux‑Dubé J. (dissenting): Aboriginal rights can be extinguished through a series of legislative acts. The intention to extinguish must nonetheless be clear and plain, in the sense that the government must address the aboriginal activities in question and explicitly extinguish them by making them no longer permissible. This is diametrically opposed to the position that extinguishment may be achieved by merely regulating an activity or that legislation necessarily inconsistent with the continued enjoyment of an aboriginal right can be deemed to extinguish it. Here, the legislation was insufficient to extinguish the aboriginal right to sell, trade and barter for livelihood, support and sustenance purposes. The statutes and regulations did not address aboriginal fishing in any way that demonstrates an intention to abolish aboriginal interest in the fishery.
Per McLachlin J. (dissenting): The aboriginal right to trade fish for sustenance was not extinguished for the reasons given in R. v. Van der Peet.
Prima Facie Infringement
Per L’Heureux‑Dubé J. (dissenting): The issue of prima facie infringement had to be remitted to trial since there was insufficient evidence to enable this Court to decide it.
Per McLachlin J. (dissenting): The evidence established an aboriginal right covering the activity at issue. The regulatory scheme infringed that right as it prohibited any sale of fish for sustenance and made no provision for satisfaction of the collective right. The size of the transaction alone did not rebut the prima facie infringement. The quantity of fish sold was relevant only in relation to the natives’ sustenance needs. The aboriginal right was a collective one. Its infringement was established when the Crown failed to show that it had put in place a regulatory scheme that met the natives’ collective right to trade in fish for sustenance.
Justification
Per L’Heureux‑Dubé J. (dissenting): The issue of justification had to be remitted to trial since there was insufficient evidence to enable this Court to decide it.
Per McLachlin J. (dissenting): The infringement of the aboriginal right to sell fish for sustenance was not justified. To justify an infringement of an aboriginal right, the Crown must establish both that the law or regulation at issue was enacted for a “compelling and substantial” purpose, and that the law or regulation is consistent with the fiduciary duty of the Crown toward the aboriginal peoples. The Crown did not establish that the denial of the aboriginal right to sell fish for sustenance was required for conservation purposes or for other purposes related to the continued and responsible exploitation of the resource. Moreover, the total denial conflicted with the fiduciary duty of the Crown to permit exercise of a constitutionally guaranteed aboriginal right.
Cases Cited
By Lamer C.J.
Applied: R. v. Van der Peet, [1996] 2 S.C.R. 507, rev’g (1993), 80 B.C.L.R. (2d) 75; referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Sparrow, [1990] 1 S.C.R. 1075.
By L’Heureux‑Dubé J. (dissenting)
R. v. Van der Peet, [1996] 2 S.C.R. 507, rev’g (1993), 80 B.C.L.R. (2d) 75; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Jones (1993), 14 O.R. (3d) 421; Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97; Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2; Lensen v. Lensen, [1987] 2 S.C.R. 672; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; R. v. Burns, [1994] 1 S.C.R. 656; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Schwartz v. Canada, [1996] 1 S.C.R. 254; Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518; Simon v. The Queen, [1985] 2 S.C.R. 387; United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941).
By McLachlin J. (dissenting)
R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Sparrow, [1990] 1 S.C.R. 1075.
Statutes and Regulations Cited
British Columbia Fishery (General) Regulations, SOR/84‑248, ss. 4(5), 27(1), (5) [ad. SOR/85-290, s. 5].
Constitution Act, 1982, ss. 35(1) , 52 .
Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1) [rep. & sub. S.C. 1976-77, c. 35, s. 18].
Indian Act, R.S.C. 1970, c. I‑6, s. 81(1)(o) [am. S.C. 1985, c. 27, s. 15.1(2)].
Sheshaht Band Fish By‑Law, SOR/82‑471.
Authors Cited
Concise Oxford Dictionary of Current English, 7th ed. Edited by J.B. Sykes. Oxford: Clarendon Press, 1982, “commerce”..
New Encyclopaedia Britannica, vol. 6, 15th ed. Chicago: Encyclopaedia Britannica, 1990.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 158, 29 B.C.A.C. 273, 48 W.A.C. 273, [1993] 5 W.W.R. 542, [1993] 4 C.N.L.R. 158, dismissing an appeal from a judgment of Melvin Co. Ct. J. (1990), 9 W.C.B. (2d) 439, dismissing an appeal from conviction by MacLeod Prov. Ct. J. Appeal dismissed, L’Heureux‑Dubé and McLachlin JJ. dissenting.
David M. Rosenberg and Hugh Braker, for the appellant.
S. David Frankel, Q.C., and Cheryl J. Tobias, for the respondent.
Paul J. Pearlman, for the intervener the Attorney General of British Columbia.
Patrick G. Foy, for the intervener the Canadian National Railway Company.
J. Keith Lowes, for the intervener the Fisheries Council of British Columbia.
Christopher Harvey, Q.C., and Robert Lonergan, for the interveners the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation.
Harry A. Slade, Arthur C. Pape and Robert C. Freedman, for the intervener the First Nations Summit.
Stuart Rush, Q.C., and Michael Jackson, for the interveners Delgamuukw et al.
Arthur C. Pape and Clayton C. Ruby, for the interveners Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
The Chief Justice --
I. Facts
1 The appellant, N.T.C. Smokehouse Ltd., is an incorporated company which owns and operates a food processing plant near Port Alberni, British Columbia. The appellant was charged under s. 61(1) of the Fisheries Act, R.S.C. 1970, c. F-14, with the offences of selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, and with the offences of selling and purchasing fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations.
2 The charges related to the purchase of salmon by the appellant arose out of a series of transactions between September 7, 1986 and September 23, 1986, in which the appellant purchased 119 435 pounds of chinook salmon caught by members of the Sheshaht and Opetchesaht bands. The Department of Fisheries and Oceans had issued Indian food fish licences authorizing members of both the Sheshaht and Opetchesaht bands to fish in the Somass River for three two-day periods between September 7, 1986 and September 23, 1986. All of the fish purchased by the appellant were caught under the authority of these Indian food fish licences.
3 The charges related to the sale of salmon by the appellant arose out of a series of transactions between September 8, 1986 and October 24, 1986, in which the appellant sold approximately 105 302 pounds of the chinook salmon which it had purchased from the members of the Sheshaht and Opetchesaht bands. The salmon were sold to Jay Margetis Fish Ltd., Kingfisher Enterprises, Pacific Salmon Industries Ltd. and Maranatha Seafoods Ltd.
4 At the time at which the appellants were charged s. 27(5) of the British Columbia Fishery (General) Regulations read:
27. ...
(5) No person shall sell, barter or offer to sell or barter any fish caught under the authority of an Indian food fish licence.
Section 4(5) of the British Columbia Fishery (General) Regulations read:
4. ...
(5) No person shall buy, sell, trade or barter or attempt to buy, sell, trade or barter fish or any portions thereof other than fish lawfully caught under the authority of a commercial fishing licence issued by the Minister or the Minister of Environment for British Columbia.
5 The appellant has not contested any of these facts, instead basing its defence on the position that, in these circumstances, the Regulations were in violation of the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 and were therefore, by operation of s. 52 of the Constitution Act, 1982 , of no force or effect with respect to the appellant. Section 35(1) of the Constitution Act, 1982 reads:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
II. Judgments Below
Provincial Court
6 At trial the appellant argued that a by-law enacted by the Sheshaht Band, pursuant to s. 81(1)(o) of the Indian Act, R.S.C. 1970, c. I-6, rendered the Regulations inapplicable. This argument was rejected by the trial judge on the grounds that the by-law does not apply to fishing in the Somass River because the Somass does not fall within the boundaries of the Sheshaht Reserve; this argument has not been pursued at this Court.
7 The appellant also argued that the Regulations violated the aboriginal rights of the Sheshaht and Opetchesaht to sell fish. The trial judge rejected this argument on the basis that while there was some evidence to suggest that exchange and trade of salmon had occurred amongst the Sheshaht and Opetchesaht, the evidence also suggested that "what sales were made were few and far between". In the result, the trial judge convicted the appellant of selling salmon caught pursuant to an Indian food fish licence, contrary to s. 27(5) of the Regulations, and of purchasing salmon that was not caught under the authority of a commercial licence, contrary to s. 4(5) of the Regulations. The other charges against the appellant were dismissed on the basis of the principle in Kienapple v. The Queen, [1975] 1 S.C.R. 729.
County Court of Vancouver Island (1990), 9 W.C.B. (2d) 439
8 The appellant's conviction was upheld by the County Court of Vancouver Island. Melvin Co. Ct. J. rejected the appellant's argument, abandoned on appeal to this Court, that the Fisheries Regulations were ultra vires the federal government. He also agreed with the trial judge that the Somass River fell outside of the boundaries of the Sheshaht Reserve, with the result that the Sheshaht by-law could not be used as a defence to the charges. Melvin Co. Ct. J. did not conclusively decide whether the appellant had established the aboriginal right of the Sheshaht and Opetchesaht to sell fish, disposing of the appellant's argument on this point on the basis that, even if such a right does exist, "the regulations as they exist are necessary for the proper management and conservation of the resource or in the public interest and as such are valid and enforceable". Melvin Co. Ct. J. did note, however, in agreement with the trial judge, that the evidence suggesting a right to exchange or sell salmon was "somewhat tenuous".
British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 158
9 Wallace J.A., writing for himself and two others, upheld the judgments of the courts below, agreeing in substance with Melvin Co. Ct. J.'s disposition of the appellant's challenge to the authority of the federal government to enact the Regulations and with Melvin Co. Ct. J.'s decision that the Somass River did not fall within the boundaries of the Sheshaht Reserve. With regards to the aboriginal rights issue, Wallace J.A. held that the trial judge's ruling that the commercial sale of fish did not constitute an aboriginal right, because determined as a question of fact, should not be disturbed. Although unnecessary given his position on the existence of an aboriginal right, Wallace J.A. also briefly considered the question of whether the right had been extinguished. Wallace J.A. did not decide whether the government's actions would, if a right to sell fish had been found, have been sufficient to extinguish that right; however, he did hold, in disagreement with Lambert J.A., that this Court's decision in R. v. Sparrow, [1990] 1 S.C.R. 1075, was not determinative of the issue.
10 Hutcheon J.A. concurred. With regards to the question of whether or not the appellant had demonstrated an aboriginal right, Hutcheon J.A., at p. 186, held that the question of whether the aboriginal rights of the Sheshaht and Opetchesaht included the right to sell fish is a "finding of fact based on the evidence" with the result that the Court of Appeal was "without jurisdiction to examine this ground of appeal".
11 Lambert J.A. dissented. He held that the trial judge made an error of law because only considering the situation of the Sheshaht and Opetchesaht peoples prior to contact, with the result that the Court of Appeal did have jurisdiction to review the decision. Relying on his decision in R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75, and the position taken therein that aboriginal rights must be identified through considering the significance of the practices, traditions and customs to the aboriginal people in question, Lambert J.A. held at para. 159 that the Sheshaht and Opetchesaht peoples had the right to "catch, and, if they wish, sell, themselves and through other members of the Sheshaht and Opetchesaht peoples, sufficient salmon to provide all the people who wish to be personally engaged in the fishery, and their dependent families, when coupled with their other financial resources, with a moderate livelihood ..." (italics in original). Lambert J.A. held, further, that the Crown had failed to demonstrate that the right had been extinguished, relying on the judgment in Sparrow, supra, for the proposition that fisheries regulations enacted by the federal government were insufficient to demonstrate a clear and plain intention to extinguish the right. Lambert J.A. also held at para. 163 that the rights of the Sheshaht and Opetchesaht had clearly been infringed by the legislation and that, since allowing people to catch on average 3/4 of a ton of fish, and not permitting the sale of that fish, "makes no sense", the infringement was not justified. In the result, Lambert J.A. would have allowed the appeal and entered verdicts of acquittal on all counts against the appellant.
III. Grounds of Appeal
12 Leave to appeal to this Court was granted on March 10, 1994: [1994] 1 S.C.R. ix. The following constitutional questions were stated:
1. Is s. 4(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read in September of 1986, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
2. Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read in September of 1986, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
The appellant appealed on the basis that the Court of Appeal erred in differentiating between fishing for consumption and fishing for commercial purposes in delineating the scope of the Sheshaht and Opetchesaht's aboriginal rights. The appellant argued that this differentiation was a result of the Court of Appeal's failure to view the problem from the aboriginal perspective. The appellant also argued that aboriginal rights should be "unlimited" in definition and that any limits on those rights must be justified by the Crown in accordance with the test laid out in Sparrow.
13 Delgamuukw et al. intervened on behalf of the appellant as did Howard Pamajewon et al. and the First Nations Summit. The Attorney General of British Columbia, the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation all intervened on behalf of the respondent.
IV. Analysis
14 The adjudication of the appellant's claim requires this Court to apply the principles articulated in its decision, released contemporaneously, in R. v. Van der Peet, [1996] 2 S.C.R. 507. In Van der Peet, the Court held at para. 46 that to be recognized as an aboriginal right an activity must be "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right". The question that must be answered in this case, therefore, is whether the appellant has demonstrated that the Sheshaht and Opetchesaht, in selling fish to the appellant, were exercising an aboriginal right.
15 As a preliminary matter, it should be noted that the aboriginal right asserted in this case is not one held by the appellant itself, but rather one argued to be held by the Sheshaht and Opetchesaht peoples. Given, however, that in order to convict the appellant it is necessary that the sale of the fish by the Sheshaht and the Opetchesaht have been illegal, the appellant is entitled to raise as a defence to the charges against it the existence of an aboriginal right, held by the Sheshaht and Opetchesaht, and recognized and affirmed by s. 35(1) of the Constitution Act, 1982 , which would negate the illegality of the sale of salmon by members of the Sheshaht and Opetchesaht bands.
16 I now turn to the application of the Van der Peet test. As was held in that case, the first stage in the analysis of a claim to an aboriginal right requires the Court to determine the precise nature of the claim being made, taking into account such factors as the natue of the action said to have been taken pursuant to an aboriginal right, the government regulation argued to infringe the right, and the tradition, custom or practice relied upon to establish the right.
17 In Van der Peet the claim to an aboriginal right was characterized not as a claim for the right to fish commercially but rather simply as a claim for the right to exchange fish for money or other goods. The right was so characterized on the basis that the transaction engaged in by Mrs. Van der Peet -- the sale of 10 salmon for $50 -- could only be characterized as "commercial" in the broadest sense of the word; moreover, the regulation under which she was charged prohibited all sale or trade of fish caught under the authority of an Indian food fish licence, regardless of the extent or nature of the transaction.
18 In the case at bar, however, the claim made by the appellant appears closer to a claim of a right to fish commercially than was the case in Van der Peet. The sale of in excess of 119,000 pounds of salmon by 80 people, an amount constituting approximately 1500 pounds of salmon per person, would appear to be much closer to an act of commerce -- "exchange of merchandise or services, esp. on a large scale" (emphasis added), Concise Oxford Dictionary (7th ed. 1982) -- than was engaged in by Mrs. Van der Peet, thereby suggesting that the claim being made by the appellant is, in fact, that the Sheshaht and Opetchesaht have the aboriginal right to fish commercially.
19 That being said, the Regulations under which the appellant was charged, like the regulation at issue in Van der Peet, prohibit all sale or trade of salmon caught under the authority of an Indian food fish licence or without the authority of a commercial fishing licence. This would suggest that, despite the scale and extent of the sale and trade by the Sheshaht and Opetchesaht, the claim they are making is best characterized in the manner suggested in Van der Peet -- i.e., as a claim to the right to exchange fish for money or other goods. If the regulations restrict all sale or trade, and the Sheshaht and Opetchesaht have an aboriginal right to exchange salmon for money or other goods, then it will be at least arguable that those regulations constitute an unjustifiable infringement of the aboriginal rights of the Sheshaht and Opetchesaht and are unconstitutional in their application to the appellant.
20 The difficulty in resolving the nature of the appellant's claim in this case can be avoided. The claim to an aboriginal right to exchange fish commercially places a more onerous burden on the appellant than a claim to an aboriginal right to exchange fish for money or other goods: to support the latter claim the appellant needs only to show that exchange of fish for money or other goods was integral to the distinctive cultures of the Sheshaht and Opetchesaht, while to support the former claim the appellant needs to demonstrate that the exchange of fish for money or other goods, on a scale best characterized as commercial, was an integral part of the distinctive cultures of the Sheshaht and Opetchesaht peoples. Demonstrating that the exchange of fish occurred on a commercial scale would, necessarily, also demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive cultures of the Sheshaht and Opetchesaht; because of this relationship between the two claims, should the appellant fail to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive cultures of the Sheshaht or Opetchesaht, it will also have failed to demonstrate that the exchange of fish on a commercial basis was an integral part of the distinctive cultures of the Sheshaht or Opetchesaht.
21 This judgment will thus characterize, at the outset, the claim of the appellant as a claim that the Sheshaht and the Opetchesaht have the right to exchange fish for money or other goods. It will turn to the claim that the Sheshaht and the Opetchesaht have the right to fish commercially only if the first claim to a right to exchange fish for money or other goods has been established.
22 The second stage of the Van der Peet analysis requires the Court to determine whether the practice, tradition or custom claimed to be an aboriginal right was, prior to contact with Europeans, an integral part of the distinctive aboriginal society of the aboriginal people in question. The Court must thus determine, in this case, whether the exchange of fish for money or other goods could be said to be a central, significant or defining feature of the distinctive cultures of the Sheshaht and Opetchesaht.
23 For the purposes of this analysis no distinction will be made between the cultures of the Sheshaht and Opetchesaht because no such distinction was made by the appellant in its factum nor in the decisions of the courts below. Further, the evidence presented at trial did not distinguish between the cultures and history of the two bands. Normally, because the determination of whether or not an aboriginal right exists is specific to the particular aboriginal group claiming the right, distinctions between aboriginal claimants will be significant and important; however, in this case it does not appear, as a factual matter, that any significant distinctions exist between the Sheshaht and the Opetchesaht.
24 I would also note with regard to the second stage of the Van der Peet analysis that the determination of whether the exchange of salmon is an integral part of the distinctive cultures of the Sheshaht and Opetchesaht will depend, in significant part, on the factual evidence that was before the trial court and, here at the appellate level, on the findings of fact made by the trial judge. I do not agree with the position adopted by the majority of the British Columbia Court of Appeal, that the trial judge's decision in this case was purely a determination of a question of fact; however, the outcome of the appeal will turn in large part on the facts as found by MacLeod Prov. Ct. J., the trial judge.
25 As was emphasized in Van der Peet, the findings of fact made by the trial judge should not, absent a palpable and overriding error, be overturned on appeal. It has not been argued in this case, and nor does a review of the evidence and transcripts demonstrate, that the trial judge made such an error in reviewing the evidence; therefore, the question that this Court must answer is, simply, whether the findings of fact made by the trial judge demonstrate that the exchange of fish for money or other goods by the Sheshaht and Opetchesaht was a sufficiently significant, central and defining feature of their cultures so as to constitute an aboriginal right.
26 At trial, MacLeod Prov. Ct. J., upon reviewing the evidence, made the following findings of fact with regards to the exchange of fish by the Sheshaht Band:
I am satisfied that the Sheshaht Band has an aboriginal right to fish in the area, however, the evidence does not show to me that the Sheshahts in the period of their residence were sellers and barter[er]s of fish, and contrary, it appears that the Sheshaht over the past 200 years, what sales were made were few and far between. No doubt there were potlatches and meetings and exchanges of gifts of salmon, but these do not constitute an aboriginal right to sell the allotted fish contrary to the Regulations.
The findings of fact made by the trial judge do not support the appellant's claim that, prior to contact, the exchange of fish for money or other goods was an integral part of the distinctive cultures of the Sheshaht or Opetchesaht. Sales of fish that were "few and far between" cannot be said to have the defining status and significance necessary for this Court to hold that the Sheshaht or Opetchesaht have an aboriginal right to exchange fish for money or other goods. Further, exchanges of fish at potlatches and at ceremonial occasions, because incidental to those events, do not have the independent significance necessary to constitute an aboriginal right. Potlatches and other ceremonial occasions may well be integral features of the Sheshaht and Opetchesaht cultures and, as such, recognized and affirmed as aboriginal rights under s. 35(1) ; however, the exchange of fish incidental to these occasions is not, itself, a sufficiently central, significant or defining feature of these societies so as to be recognized as an aboriginal right under s. 35(1) . The exchange of fish, when taking place apart from the occasion to which such exchange was incidental, cannot, even if that occasion was an integral part of the aboriginal society in question, constitute an aboriginal right.
27 This conclusion is also dispositive of the claim that the Sheshaht and Opetchesaht have an aboriginal right to fish commercially; given that the facts do not support a claim of a right to exchange fish for money or other goods the facts cannot be said to support a claim to fish commercially.
V. Disposition
28 In the result, the appeal is dismissed and the judgment of the Court of Appeal affirming the conviction of the appellant for violating s. 61(1) of the Fisheries Act is affirmed. There will be no order as to costs.
29 For the reasons given above, the constitutional question must be answered as follows:
Question 1:Is s. 4(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read in September of 1986, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
Answer : No.
Question 2:Is s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read in September of 1986, of no force or effect with respect to the appellant in the circumstances of these proceedings, in virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
Answer : No.
The following are the reasons delivered by
30 L’Heureux-Dubé J. (dissenting) -- This appeal, as well as the appeals in R. v. Van der Peet, [1996] 2 S.C.R. 507, and R. v. Gladstone, [1996] 2 S.C.R. 723, in which reasons are being released concurrently, and the appeal in R. v. Nikal, [1996] 1 S.C.R. 1013, concern the definition of aboriginal rights as constitutionally protected under s. 35(1) of the Constitution Act, 1982 .
31 This broad issue was dealt with in Van der Peet. Both cases involve mainly the definition of the nature and extent of aboriginal rights. In this case, the particular question is whether the Sheshaht and Opetchesaht peoples, from whom the appellant corporation purchased fish, possess an aboriginal right to fish which includes the right to sell, trade and barter fish for livelihood, support and sustenance purposes.
32 The Chief Justice is of the view that the Sheshaht and Opetchesaht peoples do not benefit from an existing aboriginal right to fish which includes the right to exchange fish for money or other goods and that, as a consequence, the appellant's convictions should be upheld. As in the case of Van der Peet, supra, I disagree with both the result he reaches and with his analysis of the issues at bar, specifically with regard to the approach to defining aboriginal rights and to the delineation of the aboriginal right claimed by the appellant.
33 N