The Landmark Gladstone Case
R v. Gladstone
Court: Supreme Court of Canada
Citation:  2 S.C.R. 723
TAGS: Infringement of Aboriginal Rights; Natural Resources – Fisheries; Commercial right to trade herring spawn on kelp
To justify an infringement of an Aboriginal right, the government must have a valid, substantial and compelling objective that is in the interest of all Canadians and the government must act in a manner respectful of the prior interest of Aboriginal right holders in order to meet their fiduciary obligations to Indigenous nations when infringing Aboriginal rights.
Donald and William Gladstone, two members of the Heiltsuk Band, were charged with attempting to sell herring spawn on kelp not caught under the authority of an appropriate license (category J license) contrary to fishing regulations. The Gladstones argued that the regulations breached their Aboriginal rights under s. 35 of the Constitution Act, 1982. Section 35 of the Constitution Act 1982 recognizes and affirms existing Aboriginal and treaty rights.
The Supreme Court of Canada applied the test for a claim of Aboriginal rights under s.35 of the Constitution Act 1982 found in R v Sparrow ( 1 S.C.R. 1075) taking into account further explanations of the Sparrow test found in R v Van der Peet, R v N.T.C. Smokehouse Ltd, and R v Nikal.
The Supreme Court of Canada held that the Gladstones demonstrated that they were acting pursuant to an Aboriginal right to trade herring spawn on kelp on a commercial basis, that this right had not been extinguished, and that there appeared to be an infringement of this right. The Supreme Court of Canada sent this case back to trial due to a lack of evidence on the justification of the government’s infringement of the Aboriginal right of the Gladstones to trade herring spawn on kelp on a commercial basis.
Why this Case Matters:
R v Gladstone elaborates on the justification of government infringement step of the Sparrow test for a claim of Aboriginal rights under s.35 of the Constitution Act, 1982. There are two questions to be answered under this step of the Sparrow test. The first question is whether there is a valid, compelling and substantial objective. R v Gladstone articulated that objectives that are in the interest of all Canadians and may lead reconciliation of Indigenous nations with Canadian society could meet the standard of this first question.
The second question in the justification of government infringement of Aboriginal rights is: does the manner of pursuing the objective reflect the Crown’s fiduciary obligations to Indigenous peoples? To aid in answering this question, this case defines the doctrine of priority articulated in R v Sparrow. R v Gladstone underlines that when an Aboriginal right has no internal limit, such as a right to sell herring spawn on kelp on a commercial basis, that the doctrine of priority articulated in Sparrow does not apply as strictly. The doctrine of priority only requires that the government demonstrate that they have allocated the fishery in a manner respectful of the prior interest of Aboriginal right; it does not require that Indigenous nations be given an exclusive right to the fishery after conservation goals have been met.
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