Do Canada’s Fisheries Laws Infringe the Nuu-chah-nulth’s Aboriginal Rights?
Once the Court established the Nuu-chah-nulth’s right to fish and to sell fish, it next examined whether Canada’s fisheries legislation, regulations or policies infringed those rights. Rather than analyzing each component of the regulatory scheme in accordance with the Sparrow test, the Court focused on the cumulative effect of the scheme on the exercise of aboriginal rights.14 Canada argued that there was no negative impact and thus no possibility of infringement on the Nuu-chah-nulth’s aboriginal right to commercial fishing based on the available statistics which showed that their participation in the commercial fishery on a proportional basis was equal to or greater than their historical participation.15 The Court placed more weight on the anecdotal evidence put forward by the Plaintiffs regarding the substantial decline in actual aboriginal participation in commercial fisheries.16 Canada also argued that the cumulative effect of its fisheries policies had actually accrued benefit t
