OTTAWA--"The B.C. Court of Appeal in Huovinen missed the fact that the public fishery must be available to all Canadians. The recreational and commercial fisheries are owned by all Canadians and the federal government is its trustee, not its owner," said John Cummins, M.P. (Delta-South Richmond).

"The Court of Appeal reads the history of Canadian fisheries law and the intention of Parliament in the Fisheries Act as one of entrenching benefits for private groups based on their race or ethnicity. The history of fishery law and policy in Canada does not bear such a reading."

The Supreme Court of Canada in 1996 indicated in three separate fishery decisions that the public right to fish was the basis of the public fishery in Canada.

In Gladstone, it noted that "since the time of the Magna Carta, there has been a common law right to fish...that can only be abrogated by the enactment of competent legislation".

In Lewis, it noted that from the earliest days the object of fisheries law was to "treat indians and non-Indians equally as to the use of the water and not grant exclusive use of any public waters for the purpose of fishing."

In Nikal, it relied on earlier statements of the law to indicate that the Crown is merely a trustee for the public of the public right of fishing--"Fisheries in all public navigable waters of Canada belong prima facie to the public...Indians enjoy no special liberty as regards either the places, times, or methods of fishing. They are entitled to the same freedom as [other members of the public], and are subject to precisely the same laws and regulation."

The Aboriginal Communal Fishing Regulations purport to give the Minister of Fisheries the authority to give band councils the authority to grant fishing licences to their band members.

Today's decision runs counter to a recent Newfoundland Court of Appeal decision that held the Minister must base regulation on conservation rather than social objectives and can regulate the harvest of the resource but not its sale. In contrast the B.C. Court of Appeal found that the Minister can regulate the fishery for social objectives and can govern the sale of native caught fish through regulation.

"Two things need to happen. The Supreme Court of Canada needs to be given the opportunity to decide if its 1996 decisions still govern the fishery and Canada needs a new government that will protect everyone's right to participate in the public fishery," said Cummins.