What constitutes a prima facie infringement of an Aboriginal right to fish the claim area?
British Columbia, Canada
The following excerpt is from Cowichan Tribes v Canada (Attorney General), 2021 BCSC 2528 (CanLII):
If the plaintiffs establish an Aboriginal Right to fish the claim area, then Canada’s actions in unreasonably limiting the exercise of this right or causing undue hardship to the plaintiffs constitute a prima facie infringement of the plaintiffs’ right which is protected under s. 35(1) of the Constitution Act, 1982. However, Canada may be able to justify this infringement if they establish that the infringement was in furtherance of a valid legislative objective, and upholds the honour of the Crown in light of its obligations towards Indigenous peoples. In this scenario, Canada’s conduct while infringing the plaintiffs’ rights would not be unconstitutional (R v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075).
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.
Other Questions
In what circumstances will the Respondent at the Human Rights Tribunal of B.C. claim that the Applicant be denied the right to continue to pursue his human rights claim? (British Columbia, Canada)
Is resolution of an important part of a claim against a party in a personal injury claim against the other party to the claim substantially less impact on the balance of the claim? (British Columbia, Canada)
How has the definition of an Aboriginal right been interpreted in the context of Aboriginal rights cases? (British Columbia, Canada)
What constitutes a prima facie case in a motor vehicle accident? (British Columbia, Canada)
What evidence is required to prove the purpose of the legislation is to infringe aboriginal rights? (British Columbia, Canada)
What is the test for advancing a claim under a plaintiff’s right to claim for diminished income? (British Columbia, Canada)
How has the trial judge considered aboriginal perspective in the context of aboriginal title claims? (British Columbia, Canada)
Does a wilfully false statement in a motor vehicle accident claim constitute material material to another claim? (British Columbia, Canada)
Does the mere fact that a passenger is injured while riding on a public carrier constitute a prima facie case of negligence? (British Columbia, Canada)
In an aboriginal rights and title case, how have the courts considered expert evidence in aboriginal cases? (British Columbia, Canada)
