Canadian Supreme Court

In 1990, the Canadian Supreme Court exempted members of the Musqueam community from general fishing restrictions on cultural grounds.

Choose either the “unequal impact argument” or “the cultural resources argument” and explain how it might be used to support the view that it was right to grant an exemption in this case. Evaluate the strength of the argument as it applies to the case.

On the 25th May 1984 Musqueam Band Member Ron Sparrow was caught fishing in the traditional Indian Fraser river fishery, using a 45 fathom drift net in direct contravention of his band’s food fishing licence issued by the Canadian Department for Fisheries which stipulated that Musqueam band members could only use drift nets 25 fathoms long to reduce their catch in the interest of conservation of the fishery. The Musqueam community decided to defend Ron Sparrows use of a longer drift net on the basis of the Band’s aboriginal fishing rights and the new constitutional recognition and affirmation of aboriginal rights in section 35 of the Canadian Constitution, which is part of the supreme law of Canada.

. The argument that the Musqueam band’s Defence used was made up of four points first, that they had an aboriginal right to fish in the waters where they had fished for centuries; second, Musqueam aboriginal rights had never been extinguished by treaty or otherwise; third, that section 35 was a constitutional guarantee of their aboriginal fishing rights; fourth, that section 35 guarantee operated to invalidate any government regulation that infringed on the free exercise of aboriginal fishing rights unless the regulation was justified by government as a necessary and reasonable conservation measure; The reasonableness of the net length restriction w...

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...es , The Open University)

It is clear that the Musqueam Band are a cultural group as they observe the same traditions and values and have the same outlook on life. So the exemption was the right thing to do as to deny them it would have discriminated against them culturally as a community and religiously as they not only use what they catch in the fisheries for food as it is the principle staple of their diet but also for ceremonial purposes, which is important for them to be able to observe as well as preserve their unique culture.

Difference blind liberalism would reject the exemption on the basis that the law should apply equally to everyone. And the granting of such exemptions is clearly not applying the law equally. This is why such importance is placed upon discrimination, equality, autonomy and cultural groups when policies and laws are formulated.