Sparrow Context: Criminal charge [violation of penal provision] - fisheries act; fishing with a longer net than permitted Framing of the right: Musqueam right to fish for food -> extended to social and ceremonial purposes Evidence: Anthropologist, supported by Band administrator: Musqueam lived in the area long before Euros; taking salmon was integral part of their lives then and now Frozen rights: rights must be flexibly interpreted to permit evolution over time - rather than in primeval simplicity and vigour Extinguishment (regulation): An AR is not extinguished merely by its being controlled in great detail by regulations (here, Fisheries Act); fishing permits were simply a manner of controlling fisheries not of defining underlying rights; historical policy cannot extinguish the existing right w/o clear intention; nature of govt regulations cannot be determinative of the content & scope Interference: not being allowed to fish with preferred method. Justification (objective): valid: conserving and managing natural resource, preventing harm to the population or AB. Invalid: public interest < too vague. In this case, conservation valid. Interference: net restriction (means chosen)// top priority allocation after conservation (in keeping with constitutional entitlement). In this case: not sure if net restriction was necessary to conservation measure Aboriginal perspective: on the meaning of the right. fishing rights aren't traditional property rights; held by a collective and in keeping with the culture and existence of the group: "sui generis". Careful to avoid application of traditional CL concepts of property. Result: none; set out the test for justification Reconciliation: In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Context: Criminal charge - BC Fishery regulation; sold 10 salmon Van der Peet Framing of the right: Activities considered at a general rather than specific level; may be exercised in modern form // claimant: Sto:lo AR to exchange fish for money or other goods Evidence: should be conscious of evidentiary difficulties b/c no written records; don't undervalue because it doesn't conform with evidentiary standards IDT evidence: anthropological experts, oral evidence from band: established Sto:lo fished for food and ceremonial purposes - exchanged through individual trade, gift or barter of fish surplus from time to time; no regularized trading system (inability to preserve [evidence: lack of salt] and store - band culture); market was created by Euro traders. Oral evidence showed that trade was incidental to fishing for food. Because trading was not widespread pre-contact suggests that it was not a defining feature. Distinction: trading system does not equal commercial fishing. Aboriginal perspective: be sensitive while recognizing that AR exist within the Canada's general legal system. Recognize the right without losing sight of the fact that it is aboriginal. Reconciliation: purpose of s.35(1); constitutional framework to acknowledge and reconcile the fact that AB lived on the land in distinctive societies with their own PCTs with the assertion of Crown sovereignty > rights must be designed in light