Kapp Gives Affirmative Action Wide Margins

Abstract

In a recent Charter decision on aboriginal fishing rights, the Supreme Court of Canada gives wide and promising leeway to governments adopting affirmative action programs.

R. v. Kapp, [2008] S.C.J. No. 42 involved a constitutional challenge. It was brought by mostly non-aboriginal commercial fishers against a government strategy allowing 24 hours to be reserved as an exclusive salmon fishery in the Fraser River for three aboriginal bands. This brief exclusive aboriginal commercial fishery was created through a negotiated agreement under the federal government’s “Aboriginal Fisheries Strategy.”

Keywords: affirmitive action, Kapp, aboriginal law, fishing, Fraser River, salmon