over 80 years later. The State party notes that the
author did not raise any argument related to
Canada’s international obligations, including article
27 of the Covenant, during the court proceedings.
participate in the general Canadian economy cannot
and should not diminish the importance of their
cultural and societal traditions and way of life.
10.5 Referring to the size of the Hiawatha First
Nation reserve (790.4 hectares) and the reserve
shared with two other First Nations (a number of
islands), the author argues that it is unreasonable to
suggest that he is able to meaningfully exercise
together with members of his community his
inherent rights to fish and hunt within the confines of
the reserves and the waters immediately adjacent to
them. These rights are meaningless without
sufficient land over which to exercise them. In this
context, the author reiterates that with the exception
of the First Nations parties to the Williams Treaties,
all other First Nations in Canada who have
concluded treaties with the Crown have had their
harvesting rights recognized far beyond the limits of
their reserves – throughout their traditional
territories.
Author’s comments:
10.1 On 30 August 2004, the author comments on
the State party’s submission and reiterates that the
Williams Treaties are the only treaties in Canada
which do not protect Aboriginal hunting, fishing,
trapping and gathering rights, but rather are held to
have explicitly extinguished these rights. As a
consequence, the author claims that he does not
enjoy the same special legal and constitutional status
as all other Aboriginal peoples of Canada enjoying
Aboriginal or treaty rights. The author considers that
monetary compensation for these rights is no
substitute for the necessary measures of protection of
the minority’s culture within the meaning of article
27 of the Covenant.
10.6 As to the State party’s argument that he can
fish with a recreational licence, the author asserts
that he is not a recreational fisher. In his opinion, the
regulations governing recreational fishing are
designed to enhance sports fishing and make clear
that all fishing is done as a privilege and not a right.
The general rule is prohibition of fishing activities,
except as provided for in the regulations and
pursuant to a licence. The regulations make
exceptions to the general rule for persons in
possession of a licence issued under the Aboriginal
Communal Fishing Licence Regulations, but the
author states that he has been denied the benefit of
this provision because of the Court’s decision that
his aboriginal rights had been extinguished by the
Williams Treaty.
10.2 The author argues that as a member of a
minority group, he is entitled to the protection of
economic activities that comprise an essential
element of his culture.12 The exercise of cultural
rights by members of indigenous communities is
closely associated with territory and the use of its
resources.13 The author notes that the State party
does not deny that fishing is an essential element of
the culture of the minority to which he belongs, but
rather focuses on its assertion that the author is in a
position to exercise this right to fish. The author
states, however, that the State party does not identify
whether he is able to exercise his cultural right to
fish as distinct from, and additional to, any statutory
privileges to fish that are available to all persons,
indigenous and non-indigenous, upon obtaining
through payment a licence from the Government.
10.7 The author observes that by equating his
fishing activities with those of a recreational fisher,
the State party deems his access to fishing a
privilege not a right. His fishing activities are thus
not granted priority over the activities of sport
fishers and can be unilaterally curtailed by the State
without any obligation to consult the author or the
leaders of his First Nation. According to the author,
this treatment is contrary to that afforded to other
aboriginal persons in Canada for whom the
Constitution Act 1982 provides that aboriginal and
treaty rights have priority over all other uses except
for conservation.
10.3 The author further challenges the State party’s
focus on fishing only and submits that this is based
on an excessively narrow reading of the
Committee’s admissibility decision. According to
the author, his communication also includes his
rights to hunting, trapping and gathering since these
are an equally integral part of his culture which is
being denied.
10.4 The author emphasizes that it is the cultural
and societal importance of the right to fish, hunt, trap
and gather which are at the heart of his
communication, not its economic aspect. The fact
that the members of the Hiawatha First Nation
10.8 The author argues that the State party has an
obligation to take positive measures to protect his
fishing and hunting rights, and that to allow him to
fish under recreational regulations is not a positive
measure of protection required by article 2 (2) of the
Covenant.
12
Kitok v. Sweden, communication No. 197/1985,
Views adopted on 27 July 1998.
13
See the Human Rights Committee’s General
Comment No. 23, The rights of minorities to enjoy,
profess and practise their own culture, 1994.
10.9 He further submits that he is prohibited from
fishing in the traditional territory of the Hiawatha
132
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents