In R. v. Stagg, an Aboriginal man in Manitoba was convicted of fishing contrary to section 78 of The Fisheries Act, R.S., c. F-14, s.1.  He didn’t deny it, but based his right to do so on his tribe being a signatory to Treaty #5.  The Manitoba Provincial Court didn’t buy Mr. Stagg’s argument and convicted him because he could not prove that commercial fishing was an aboriginal right. 

Pulling out the old, classic Van der Peet one-two punch (To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”) the court held that Stagg did not have an aboriginal right to commercially fish because he could not prove that his tribe engaged in commercial fishing prior to contact with Europeans. 

Since the commission of the offences is not in question, the first step in this judgment is to determine whether Mr. Stagg has proven a prima facie infringement of an Aboriginal or Treaty right to sell fish commercially. The jurisprudence as established by the Supreme Court of Canada (SCC) states that once such onus is met, the onus will then shift to the Crown to show that the prima facie infringement is justified by a valid legislative objective that is consistent with the special trust relationship that exists between the Crown and aboriginal peoples. (R. v. Sparrow, (1999) 1 S.C.R. 1075 at 112).

In R. v. Van der Peet (1996) 2 S.C.R. 507 at paragraphs 44-46, the Supreme Court of Canada defined the scope of Aboriginal rights. To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”. In addition, because Aboriginal rights aim to protect the distinctive aspects of Aboriginal cultures, they must be shown to have originated in the practices, customs or traditions of an Aboriginal group in existence prior to European contact.

Because Mr. Stagg was engaged in commercial-scale fishing activity, evidence of traditional practices that amounted to commercial scale fishing have to be proved. Yet Mr. Stagg led no evidence of any sort with respect to this subject matter. There is thus no basis for concluding that commercial-scale fishing qualified as an integral part of the culture of Dauphin River First Nation prior to contact with Europeans.