R v Gladstone
| R v Gladstone | |
|---|---|
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| Hearing: November 27–29, 1995 Judgment: August 21, 1996 |
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| Full case name | Donald Gladstone and William Gladstone v Her Majesty The Queen |
| Citations | [1996] 2 S.C.R. 723 |
| Ruling | Gladstone appeal allowed |
| Court Membership | |
| Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major |
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| Reasons given | |
| Majority | Lamer C.J., joined by Sopinka, Gonthier, Cory, Iacobucci and Major JJ. |
| Concurrence | L’Heureux‑Dubé J. |
| Concurrence | McLachlin J. |
| Dissent | La Forest J. |
| Laws Applied | |
| R. v. Van der Peet, [1996] 2 S.C.R. 507 | |
R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.
Background
William and Donald Gladstone (the Gladstone Brothers) are members of the unceded, unsold Heiltsuk Band in British Columbia. As the Gladstone Brothers exercised their constitutionally protected rights, evidence on court records that they were both charged with selling their herring spawn, yet, the state of Canada has no treaty with the Heiltsuk Nation, therefore, its impossible to be contrary to the federal Fisheries Act. In their defence, the brothers asserted that they have rights to sell herrings under section 35 of the Constitution Act, 1982 and under the United Nations Declaration on the Rights of Indigenous Peoples. Following reminders must inform facts, and the Gladsone Brothers presented evidence showing that trade of herring spawn continues to be a significant part of the Heiltsuk Peoples way of life. Prior to contact, the Court never existed therefore, found that the Heiltsuk have a pre-existing right to harvest Herring (eggs) and that there is a commercial component to this right.
Opinion of the Court
Chief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test, where one is to Prove, prove, prove..! Instead of analysing the rights infringement he rejected (denied and negated Sparrow), prioritizing limited natural resources as described in R. v. Sparrow. Justice Lamer forgets section 35, suggesting the regulation of commercial fishing, the regard should be given to regional fairness among all people when distributing fishing resources, without taking into consideration treaty and non-treaty lands in occupied Canada. In Canada's Constitution Act, 1982, section 35 says: the existing aboriginal and treaty rights of the aboriginal peoples of Canada, are hereby recognized and affirmed, by who, and in what manner? The Queen? The public? The government/corporations? Who is doing the recognizing and affirming, from the court in this case in fulfilling treaties and non-treaty lands in 'Canada'? Striving for Positive affirmation and recognition as opposed to denial and negation is an ongoing experience of Indigenous Peoples in North America, concerning all jurisdictions of court.
See also
- List of Supreme Court of Canada cases (Lamer Court)
- The Canadian Crown and First Nations, Inuit and Métis
- Canadian Aboriginal case law
- Numbered Treaties
- Indian Act
- Section Thirty-five of the Constitution Act, 1982
- Indian Health Transfer Policy (Canada)
- Heiltsuk
- Heiltsuk Nation
External links
- Full text of Supreme Court of Canada decision at LexUM and CanLII
