R v Gladstone

R v Gladstone
Supreme Court of Canada
Hearing: November 27–29, 1995 Judgment: August 21, 1996
Full case name	Donald Gladstone and William Gladstone v Her Majesty The Queen
Citations	[1996] 2 S.C.R. 723
Ruling	Gladstone appeal allowed
Court Membership
Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
Reasons given
Majority	Lamer C.J., joined by Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
Concurrence	L’Heureux‑Dubé J.
Concurrence	McLachlin J.
Dissent	La Forest J.
Laws Applied
R v Van der Peet, [1996] 2 S.C.R. 507

R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.

Background

William and Donald Gladstone were members of the Heiltsuk Band in British Columbia. They were both charged with selling herring spawn contrary to the federal Fisheries Act. In their defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part of the Heiltsuk band's way of life prior to contact. The Court found that the Heiltsuk have a pre-existing right to harvest Herring (eggs) and that there is a commercial component to this right.

Opinion of the Court

Chief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test. In analyzing the rights infringement, he rejected prioritizing limited natural resources as described in R v Sparrow. Instead, he suggested that in the regulation of commercial fishing the regard should be given to regional fairness among all people when distributing fishing resources.

External links

Full text of Supreme Court of Canada decision at LexUM and CanLII

Canadian Aboriginal law

Politics, law and legislation	Indigenous and Northern Affairs Canada The Canadian Crown and Aboriginal peoples Canadian Indian residential school system High Arctic relocation Fred Quilt inquiry Ipperwash Crisis

Aboriginal law	Royal Proclamation of 1763 Constitution Act, 1867 Section 35 of the Constitution Act, 1982 Douglas Treaties 1969 White Paper Kelowna Accord Numbered Treaties Indian Act Royal Commission on Aboriginal Peoples First Nations treaties in British Columbia Indian Health Transfer Policy

Case law	Attorney General of Canada v. Lavell R. v. Badger Calder v. British Columbia Chippewas of Sarnia Band v. Canada Corbiere v. Canada Daniels v. Canada Delgamuukw v. British Columbia Native Women's Association of Canada v. Canada Kruger and al. v. The Queen R. v. Marshall; R. v. Bernard R. v. Marshall Mitchell v. M.N.R. Paul v. British Columbia Paulette Caveat Powley ruling R. v. Drybones R. v. Gladstone R. v. Gonzales R. v. Guerin R. v. Jim R. v. Pamajewon R. v. Sparrow Re Eskimos St. Catharines Milling and Lumber Co. v. R. R. v. Van der Peet Tsilhqot'in Nation v. British Columbia Daniels v. Canada

International rights & laws	Definitions and identity of indigenous peoples Declaration of Indigenous Peoples Rights United Nations Permanent Forum on Indigenous Issues Indigenous intellectual property

See also Index of Aboriginal Canadian-related articles

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R v Gladstone

Background

Opinion of the Court

See also

External links