Unlicensed? The Nikal case
R. v. Nikal
Court: Supreme Court of Canada
Citation:  1 S.C.R. 1013
TAGS: Fishing Rights; Harvesting Rights
Every action affecting an Aboriginal right does not necessarily infringe on Aboriginal rights.
A member of the Wet’suwet’en nation was charged with fishing without a license, contrary to s.4(1) of the British Columbia Fishery (General) Regulations. The accused was acquitted at trial. The Crown appealed, and the Court of Appeal set aside the conviction and convicted the accused. The accused appealed, arguing that licensing scheme infringed his aboriginal rights under s.35(1) of the Constitution Act, 1982. The Supreme Court of Canada allowed the appeal.
Why this Case Matters:
This case established that an infringement of an Aboriginal right does not necessarily occur in every instance where an Aboriginal right is affected. A license on its own does not equate to an infringement on s.35(1). However, conditions on fishing license that determine which band members receive fish for consumption, dictate the use of the fish, outline the period of time or area in which fishing can occur, or set out the type of gear that can be used may be infringement if they contradict an Aboriginal right.
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