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Aboriginal Fishing Rights

The right to fish is generally considered by the Indigenous peoples of Saskatchewan as an inherent right that precedes Canadian law. These lakes and rivers have been their sources of food and Transportation for thousands of years. When First Nations entered into treaties with Canada, the right to fish was guaranteed as a Treaty right. However, the traditional fishing practices of First Nations have been steadily restricted despite Treaty promises that they would be allowed to continue hunting and fishing as before. Canada and Saskatchewan first modified this fishing right through the Constitution Act, 1930, which dictated that First Nations would retain a right to fish and hunt off-reserve, but only for subsistence rather than commercial purposes. From 1930 on, Canadian courts have recognized First Nations’ right to fish, but have placed restrictions on that right by preventing them from selling or trading fish. Such restrictions have chagrined First Nations people, who expected that these rights would be protected when they signed treaties with the Crown at the end of the 19th and beginning of the 20th centuries. The most significant restriction has been the above-mentioned assertion of the courts that First Nations in Saskatchewan do not possess an Aboriginal right to fish commercially.

Other infringements include those for purposes of Conservation. Aboriginal rights are subject to regulation by the province, but infringement of these rights must be justified. Justifiable infringements of the Aboriginal right to fish have included a ban on net fishing in order to conserve fish stocks. However, the burden for justifying any such infringements rests with the Crown according to the 1990 decision of the Supreme Court of Canada in the Sparrow case. Aboriginal fishing rights now belong to Métis as well as First Nations peoples in the province. The provincial government had recognized a limited Métis right to hunt and fish, but the 2003 decision of the Supreme Court of Canada in the Powley case has identified a Métis right for hunting and fishing under Section 35 of the Charter. Although its implementation is ongoing, it is clear that Métis will now have rights similar to those of First Nations.

Brock Pitawanakwat

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