Musqueam has over time been effectively excluded from the fishery resource that had for centuries been the mainstay of our economy and community. When canning technology developed in the latter part of the 1800’s, cannery owners prevailed upon the federal Department of Fisheries to put in place a regulatory scheme that ensured they would control and benefit from the expanded commercial markets overseas made possible by canning technology. By 1917, our fishing rights had been restricted to fishing for food for ourselves and immediate families. If we were caught selling or trading our fish, the department would seize our fish and gear, and prosecute for illegally selling “food fish”. This was all done in the name of “conservation”. According to peculiar resource management theories of the government and the commercial industry, conservation would be achieved if we were prevented from catching a fish so that the same fish could be caught in the commercial fishery.

Our whole economy and way of life has always depended on fish, and especially salmon. Of all the injustices by government against first nation people in British Columbia, the uncompensated taking of our fishery has more than any other contributed to the existing impoverishment and social malaise found in coastal first nation communities. Because of that government policy, under which the government still allocates more than 90% of the resource to the commercial industry, the fishery has been a battle ground where we have resisted the attempt by government to turn us into beggars so that others could profit at our expense.

Were you in our place, you would react the same way. Who would quietly accept the legalized theft of their livelihood. Again, this issue is not some long ago wrong. The basic features of the oppressive government policy are still in place, and the negative economic and social effects of that policy are still happening in our community.

The matter of our fisheries is very much a current issue, and has become more important to us with the passage of time. Most of our land has been taken. The wildlife is gone from our territory. Fish is all we have left. Our fight for the fishery is our struggle for survival as a distinct people. If the fishery ever disappears, so do we.

The next time you hear of an aboriginal person charged with “illegally” selling fish, remember this history. The next time you hear a member of the Canadian Alliance like John Cummins, M.P. complaining about the “native-only” fishery, before making your judgment, try to understand the issue as we see it.

This history furnishes the historical context to the Sparrow case, but the immediate facts arose out of a charge under the Fisheries Act laid by the Department of Fisheries against Musqueam Band member, Ron Sparrow. On May 25, 1984, Ron fished in our traditional Fraser River fishery on using a net 45 fathoms long. This exceeded the maximum length of 25 fathoms permitted under the Band’s food fishing licence issued by the Department of Fisheries (1). The Department had reduced Musqueam’s permitted net length from 75 fathoms.

The new 25 fathom net length restriction was not put in place because of conservation. It had been imposed the previous year because the Department of Fisheries suspected that some Band members were selling fish in contravention of the restrictive condition of the Band’ s fishing licence prohibiting sale. Even though all the charges against these suspected members were dismissed by the Courts or stayed, the Department proceeded to reduce the permitted net length to 25 fathoms over the objections that this would cause hardship to all Musqueam fishermen as the 25 fathom net was very hard to fish with in the strong currents of the Fraser. If net length was a threat to conservation, one would have expected that the Department would have reduced the 200 fathom net length of commercial fishers who harvested far, far more fish than Musqueam in precisely the same area. This was not done. The Department’s real reason was its view that the Band was catching more fish than necessary for food purposes and intended the reduction in net length to reduce the Band’s catch. The restriction did just that. As it so happens, the salmon catch of the commercial fishery in the same waters went up by a corresponding amount.

The Musqueam Band decided to support the Ron’s defence of the charge on the basis of the Band’s aboriginal fishing rights and the new constitutional recognition and affirmation of aboriginal rights in section 35 of the Canadian Constitution, which is part of the supreme law of Canada.

At the time the Band made the decision to take this forward as a test case, there had been little judicial interpretation of section 35. The Guerin decision had not yet been handed down by the Supreme Court of Canada, and the only judicial decision that existed was a lower court judgment (2) from Saskatchewan that said section 35 could not be used to challenge regulations that existed prior to its enactment in 1982. Still, the profound sense of injustice felt by the membership as a result of the Department of Fisheries policy and conduct towards them, and the anticipation that the Supreme Court would rule in the Band’s favour in Guerin, resulted in the decision to proceed. The Band hired Marvin Storrow, Q.C. and Lewis Harvey to head up the legal defence.

The argument put forward in defence to the charge was made up of these components: first, that the Musqueam had an aboriginal right to fish in the waters where it had fished for centuries; second, Musqueam’s aboriginal rights had never been extinguished by treaty or otherwise; third, that section 35 was a constitutional guarantee of Musqueam’s aboriginal fishing rights; fourth, that section 35 guarantee operated to invalidate any government regulation that infringed on the free exercise of aboriginal fishing rights unless the regulation was justified by government as a necessary and reasonable conservation measure; and finally, that the 25 fathom net length restriction at issue infringed Musqueam’s aboriginal fishing rights and had not been justified as either necessary for conservation and was unreasonable in the sense that, if it had been necessary to reduce Musqueam’s catch for conservation reasons, there were other less restrictive measures available that would not have caused have caused as much hardship to the Band. The reasonableness of the net length restriction was also challenged on the ground that the Department of Fisheries had a duty to consult with the Band before imposing a restrictive regulation, which it had not done. The government disputed each component of the Band’s argument.

The case was heard by four levels of Court, starting with the trial in the Provincial Court of British Columbia. The Provincial Court judge convicted Ron and dismissed his aboriginal rights defence. His rendered his decision on March 20, 1985, after the Supreme Court decision in Guerin. He based his decision on an interpretation of the Calder case (3). He concluded that section 35 only protected those aboriginal rights that were recognized by special treaty, proclamation or contract. In the absence of such recognition, an aboriginal right was not an existing right within the meaning of section 35, he ruled. While rejecting the defence, the judge admitted to “a certain amount of regret because of the wind of change that appears to be on the horizon at the Supreme Court of Canada level”. The “wind of change” referred to was of course the ruling in the Guerin decision that we had an existing aboriginal title to our reserve.

We appealed to the BC County Court, which upheld the Provincial Court decision. The tide began to turn in our favour at the next level of appeal to the BC Court of Appeal. In fact, we won the appeal, the Court set aside the conviction and directed a new trial. The Court accepted almost all the points of our argument except for one. Whereas we had argued that government could only infringe upon an aboriginal right on grounds such as conservation, or equally pressing concerns such as public health and safety, the Court added a further ground. The Court said the government could infringe our rights for any reason “in the public interest”. This so watered down the effect of the section 35 guarantee that we felt compelled to appeal to the Supreme Court of Canada. The government also appealed the parts of the BC Court of Appeal decision that accepted our arguments.

The Supreme Court heard the appeal and cross appeal on November 3, 1988 (4). Many commercial fishing groups, wildlife organizations and provincial governments intervened to oppose our appeal and support the position of the Department of Fisheries. We then waited for 18 months for the Court to hand down its judgment, which happened on May 3,1990. The strong unanimous judgment of the Court in our favour was well worth the wait.

The Court accepted substantially the whole of our legal arguments. We achieved everything we set out to achieve, and in some respects, achieved more. Here is a short summary of some of the Court’s findings:

• The Court stressed that a liberal, generous interpretation in favour of aboriginal people is called for when interpreting legislation and the legal doctrine of aboriginal rights.
• The judgment acknowledged that Canada cannot take much pride from the treatment historically accorded to aboriginal people. The judges ruled that section 35 “represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.
• Section 35 is a “promise” and must be interpreted and applied so as to uphold the honour of the Crown and in a way that is in keeping with the historic fiduciary relationship of the Crown to aboriginal people.
• Musqueam has an aboriginal right to fish in our traditional fishing grounds on the Fraser.
• A century of highly restrictive regulation under the Fisheries Act had not extinguished or diminished our aboriginal right. To extinguish an aboriginal right, it necessary that a “clear and plain” intention to do so be shown. The Fisheries Act provisions relied on by the Crown did not satisfy this test.
• Our aboriginal right included, at a minimum, the right to fish for food, social and ceremonial purposes. The Court left open the question of whether an aboriginal right could be exercised for commercial purposes. (5)
• DFO in allocating the harvestable catch must give priority to aboriginal rights over the claims of other user groups. The aboriginal right is subject only to conservation.
• Government must act in a fiduciary capacity with respect to aboriginal rights as the fiduciary relationship of the Crown was incorporated as part of Section 35. This considerably expanded the fiduciary responsibilities of the Crown beyond the boundaries set initially by Guerin.
• The Government’s legal relationship with aboriginal people is trust-like rather than adversarial.
• Section 35 guarantees aboriginal rights from infringement. It provides a “measure of control over government conduct and a “strong check” on legislative power.
• Where government regulation interferes with the exercise of an aboriginal right to fish, it will be invalid unless the government discharges the onus on it to justify the infringement. Justification requires that the regulation in question be for a “compelling and substantial” reason, such as conservation or public health. The Court specifically rejected the “public interest” ground of justification in the BC Court of Appeal judgment saying it was too vague. Further, the interference should be the least restrictive means available that is consistent with achieving the government’s valid objective. Finally, the aboriginal holders of the right must be consulted before the restriction is imposed. (6)

Sparrow was a great victory. However, it was only a first step towards legal recognition and protection of our historic rights to lands and resources, rights that had been totally denied and suppressed by the Canadian legal system up to that point in time. Like any first step, many steps remain before our journey will be complete.

Press Release: Sparrow 1990

Much more work will be required, in negotiations with governments at all levels and more litigation will be required before the balance of justice is righted. Our aim in all of this, whether in treaty negotiations or in the courts, is nothing less than our survival as a distinct, self-sustaining people.

We have taken a few of steps since Sparrow by negotiating fishing agreements that assure us the right to sell the fish we catch in exercising our aboriginal rights. These agreements ensure that we have a voice in the way our fisheries are managed, and while not perfect from our point of view, represent an improvement over what existed prior to Sparrow. The most serious defect with these agreements is that we are not allowed to harvest enough fish to allow any participant to earn a livelihood. The catch of the average Musqueam fisher who fishes under these agreements is miniscule when compared to the catch of the average commercial fisher.

Our rights under these fishing agreements have been the subject of constant attack by extreme segments of the commercial fishery, such as the BC Fisheries Survival Coalition, supported by their political ally, the Canadian Alliance Party. They say that our rights are “race-based”. We say, “Nonsense”. These fishing agreements have nothing to do with race. The reason government negotiates these agreements is because of our constitutionally recognized aboriginal fishing rights and the rules laid down by the Supreme Court in Sparrow. To suggest that our rights are “race-based” is, frankly speaking, seen by us a cheap attempt to tap into the latent and not-so latent racism against aboriginal people that we have been dealing with for a long time. Our aboriginal rights are based on the incontrovertible fact of our historic use and dependence on our traditional fisheries from time immemorial, not on the fact that we share racial characteristics with other aboriginal people.


Musqueam News Band and Community Aboriginal Rights Cultural Heritage Current Issues Kids and Youth Contact Us Home

© 2003 - Musqueam Indian Band. Site by Metaform