Published In

University of British Columbia Law Review

Document Type

Article

Publication Date

2000

Subjects

aboriginal law; fisheries; constitutional law - Canada

Abstract

In 1988, the Department of Fisheries and Oceans ("DFO') charged two Heiltsuk brothers with attempting to sell herring spawn-on-kelp without a J-license. In 1989, the Heiltsuk Tribal Council initiated legal action to compel the DFO to issue it additional J-licenses and to recognize Heiltsuk jurisdiction to manage the fishery in their traditional territory on the central coast. An analysis of these cases and of the historical regulation of the herring spawn fisheries reveals a continuing conflict between the state and a First Nation over a fishery and over the legitimacy of increasingly intertwined legal systems. The Heiltsuk defense of their fishery in court may be seen as an attempt to give meaning in Canadian law to the boundaries of their traditional territory, and the state's response an attempt to establish its hegemony over the fisheries within its boundaries. In its Gladstone decision the Supreme Court of Canada ("SCC") recognized a Heiltsuk right to a commercial spawn-on-kelp fishery, but referred to the trial court questions about whether the state's infringement of that right was justified. In so doing, the SCC ignored the territorial nature of the Heiltsuk claim. It assumed the territoriality of the Canadian state and within it, the authority of the DFO. The SCC's failure to recognize Heiltsuk territoriality diminishes Heiltsuk efforts to be recognized as a political community with authority to govern its fisheries, and, by expanding the scope of what might constitute a justifiable infringement of an Aboriginal right, weakens the protection for those rights in the constitution.

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