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Indigenous Law Journal >
Fall 2004, Volume 3, No. 1 >

Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/17113

Title: "Salmon for Peanut Butter": Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights
Authors: Goldenberg, André
Issue Date: 1-Oct-2004
Publisher: Indigenous Law Journal
Abstract: The recent case of R. v. Kapp marks a downward turning point in Aboriginal rights law in Canada. At issue was a federal ameliorative program that established an exclusive Native commercial fishery and whether such a program violated non-Native fishers’ guarantee of equality under s. 15(1) of the Charter. Judge Kitchen of the British Columbia Provincial Court found that the Native fishery was not a valid ameliorative program under s. 15(2) of the Charter and was “analogous to racial discrimination.” While the decision can be easily criticized on the grounds that the wrong s. 15(1) and s. 15(2) legal tests were applied (or that the correct tests were incorrectly applied), it is Kapp’s deafening silence on Aboriginal rights and ss. 25 and 35(1) of the Constitution that requires greater attention and creates alarm. A critical analysis of the legal and political context of the Kapp judgment, and of its unspoken assumptions about the nature of Aboriginal rights and struggles for justice, reveals two key issues that could have helped Judge Kitchen reach a more just resolution—recognition of these issues will also help appellate courts deal with the facts of the case in a more satisfactory way. By addressing (1) the possible modes of interaction between Charter equality rights and Aboriginal rights under the Constitution, and (2) the reluctance of courts and Canadians in general to recognize commercially-based Aboriginal rights, this paper offers an alternative lens through which the dispute in Kapp may be examined and resolved. In so doing, it also attempts to shed light on future problems and challenges in Canadian Aboriginal rights litigation more generally.
URI: http://hdl.handle.net/1807/17113
ISSN: 1703-4566
Rights: Indigenous Law Journal
Appears in Collections:Fall 2004, Volume 3, No. 1

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