The Canadian government implemented an affirmative action plan called the Aboriginal Fisheries Strategy. The Strategy’s goals include providing economic opportunities for aboriginals, and allowing aboriginal groups to manage their own fisheries. As a result of the Strategy, a communal fishing license issued through a pilot sales program allowed aboriginal fishers to “fish for salmon in the mouth of the Fraser River for a period of 24 hours [but] the appellants…all commercial fishers, mainly non-aboriginal, excluded from the fishery during this 24-hour period, participated in a protest fishery and were charged with fishing at a prohibited time.” At trial the appellants argued that the issuance of a communal fishing license to the aboriginals, and subsequent exclusion of non-aboriginals in the fishery was discriminatory. The trial court agreed. As a result, the case found itself before the Supreme Court of Canada.

The Court dismissed the appeal and held the communal fishing license as constitutional. The Court reasoned that the program serves as a “remedial purpose” to a “disadvantaged group.”  Additionally, the program will foster “progress towards self-sufficiency” for a historically disadvantage group. To this day, according to the Court, the aboriginal groups that received the fishery incentives are still socioeconomically disadvantaged; therefore, these aboriginal groups qualify, because the program “rationally” addresses these socioeconomic disadvantages. Government programs that allow disadvantaged aboriginal tribes to profit from fishing do not violate the rights of historically privileged Canadians. Essentially, the program is a remedy to allow disadvantaged aboriginals to gain with regards to history. From Canada.com, Canada:

Tsawwassen First Nation Chief Kim Baird said the ruling puts an end to third-party challenges to what has been a discretionary federal program. She said that since Tsawwassen started benefitting from the program, the first nation has obtained stronger federal fishery commitments through its treaty process.

However, Baird said that just because the Tsawwassen agreed to a formal treaty in 2007, they “still have a way to go to integrate economically into B.C.”

Conservative MP John Cummins (Delta-Richmond East) said the court ruling leaves non-native gillnet fisherman on the Fraser River economically disadvantaged.

“They are the ones paying the price,” he said. “Their hardship has been ignored by the courts. They’re ordinary Canadians who bought a boat, a licence and some gear. They never made a huge whack of money. They made a living.”

For a more information consider these Canadian sources:
On the Net: Canada urged to cancel native commercial fisheries after court decision
On the Net: Supreme Court supports aboriginal-only commercial fishery
On the Net: Aboriginal Fisheries Strategy
On the Net: John Michael Kapp, et al. v. Her Majesty the Queen case history
On the Net: Supreme Court of Canada – Decisions – R. v. Kapp