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[VAGAbond]

There was a recent string started by a young fella asking about the history of the aboriginals legal right to fish.   Some pretty good answers were posted starting back with King George III's proclamations and proceeding through to the Sparrow case,  I suspect by some lawyer types.

At the Cohen Enquiry this summer there was an exchange about the rights of the rest of us to fish.    A negotiator for the Feds maintained the aboriginals have a right, the rest of us have a privilege.   This was questioned by somebodies lawyer, perhaps the BCWF man.

Can somebody explain on what legal grounds we do or don't have a right to fish?

[Dogbreath]

It's quite simple-there is nothing in law that says recreational fishing is a right-your licence grants a privilege nothing more.

(BTW-Some musty proclamation signed in another country a thousand years ago is worth the paper it's written on.)

[Sandman]

It's quite simple-there is nothing in law that says recreational fishing is a right-your licence grants a privilege nothing more.

(BTW-Some musty proclamation signed in another country a thousand years ago is worth the paper it's written on.)

Like it or not, since Canadian law and our Constitution are both based on those "musty proclamations signed in another country a thousand years ago," they are indeed often of force in our courts.  

As for the public's right to fish, this has a rather complex legal history, some of which is discussed in Tom Appleby's paper "THE PUBLIC RIGHT TO FISH: IS IT FIT FOR PURPOSE?"  (http://www.sacn.org.uk/Articles/The_Public_Right_to_Fish.html).  In his article, he outlines the history of the public's right to fish (at least in tidal waters) in Great Britain, and how this right is predicated on a faulty interpretation of the Magna Carta.  Since our own laws and constitution are formed out of British Common Law, these ideas apply here.

This latter view of a Canadian's right to fish is expressed in another article where Phil Eisvik claims (perhaps erroneously) that the Magna Carta has secured our own right to fish, (http://blogs.vancouversun.com/2011/01/19/the-right-to-fish-is-an-inheritance-for-all-canadians/).  Whether the original charter did indeed establish a public right to fish, the influence this interpretation of a "common right to fish" has had on later court decisions is significant.

[Sandy]

yea it's a touchy and convoluted one. I think It was meant to stop one landowner from completely blocking the upstream travel of fish in traps, and therefore allowing all (landowners) a chance of fish. I doubt it was meant that the commoner would have taken fish considering people were hung for taking small game.

[Sandman]

yea it's a touchy and convoluted one. I think It was meant to stop one landowner from completely blocking the upstream travel of fish in traps, and therefore allowing all (landowners) a chance of fish. I doubt it was meant that the commoner would have taken fish considering people were hung for taking small game.

It was actually meant to remove impediments to navigation (the weirs blocked shipping lanes), but has since been interpreted as a removal of the King's title over the fishery (making the government a trustee over the fishery, not the owner).  The public right to fish has now become rooted in common law. 

As for being hung over taking small game, the Magna Carta also curtailed the King's "evil customs" relating to forests and warrens.  These "evil customs" were to be "investigated" and "abolished completely and irrevocably".  These, of course, were also meant to protect the landowner's rights as the King had a tendency to extend the boundaries of the "forests" at the detriment of the landowner's rights. It should also be noted that the charter was an agreement between the King and the Barons (not the commoners), however, since the development of our constitutional monarchy has made "all men equal,"  the rights reserved for the Barons are since extended to the commoners.

[Sandy]

It was actually meant to remove impediments to navigation (the weirs blocked shipping lanes), but has since been interpreted as a removal of the King's title over the fishery (making the government a trustee over the fishery, not the owner).  The public right to fish has now become rooted in common law. 

As for being hung over taking small game, the Magna Carta also curtailed the King's "evil customs" relating to forests and warrens.  These "evil customs" were to be "investigated" and "abolished completely and irrevocably".  These, of course, were also meant to protect the landowner's rights as the King had a tendency to extend the boundaries of the "forests" at the detriment of the landowner's rights. It should also be noted that the charter was an agreement between the King and the Barons (not the commoners), however, since the development of our constitutional monarchy has made "all men equal,"  the rights reserved for the Barons are since extended to the commoners.

did it become common law after the fact?Navigation may have been the issue on larger rivers, but not all rivers.
the barons etc. still controlled law and punishment well into the 16th century employed as pseudo judges. This can be argued every which way.
I think that despite people wanting this to be a fair to all type event, it was simply a bunch of hereditary land owners trying to protect themselves and their from retribution from a King should the disagree with him or find themselves on his wrong side.
They could care less about the rights of his vassals or the common folk, not to be confused with those who lived on the common.
strange how a contract such as this, has been used as the basis of democracy and human right charters for close to a thousand years. Did Manx law adopt those principles?

[Sandman]

did it become common law after the fact?

Well, common law is, by definition, "after the fact" as it is based on the the practice and rulings of the courts, which, as I said, were influenced by a certain interpretation of the charter that some have since argued was erroneous to begin with. 

I think that despite people wanting this to be a fair to all type event, it was simply a bunch of hereditary land owners trying to protect themselves and their from retribution from a King should the disagree with him or find themselves on his wrong side.
They could care less about the rights of his vassals or the common folk, not to be confused with those who lived on the common.
strange how a contract such as this, has been used as the basis of democracy and human right charters for close to a thousand years.

While the Magna Carta was designed to protect the Lords, the "common" man inherited these "rights" when the British Parliament, which had split into a House of Lords and the House of "Commons" (knights and burgessess) in the "Model Parliament" of 1295, was then purged by Cromwell of the House of Lords in the "Rump Parliament".  While the House of Lord's was later restored, the power of the Commons was now firmly established.  Since the Lords and Commons were now "equal" (at least politically), and since the Lords did not want to give up their own rights, they would have to extend their rights to the rest of the Commons which now had the most power in the Government.

[RalphH]

In Provincial Law yes you do:

http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_02079_01a

The Hunting and Fishing Heritage Act
[SBC 2002] CHAPTER 79
Assented to November 26, 2002


Contents
  1  Right to hunt and fish

Preamble
WHEREAS hunting and fishing are an important part of British Columbia's heritage and form an important part of the fabric of present-day life in British Columbia;

WHEREAS hunters and anglers contribute to the understanding, conservation, and management of fish and wildlife in British Columbia;

WHEREAS hunting and fishing should be recognized as legitimate forms of recreation and as legitimate tools with which to effectively manage the fish and wildlife of British Columbia;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Right to hunt and fish
1  A person has the right to hunt and fish in accordance with the law.

[Sandman]

In Provincial Law yes you do:
...  A person has the right to hunt and fish in accordance with the law...

Unfortunately, the BC government, especially the Liberals, have a way of changing laws at will to fit their agenda, so enjoy the provincial right while it lasts.

[lovetofish]

Unfortunately, the BC government, especially the Liberals, have a way of changing laws at will to fit their agenda, so enjoy the provincial right while it lasts.

And you think that the NDP won't change a bunch of laws to fit their agenda?  Maybe not in the fishing area, but for sure in the hunting area.

[Burbot]

It's quite simple-there is nothing in law that says recreational fishing is a right-your licence grants a privilege nothing more.

(BTW-Some musty proclamation signed in another country a thousand years ago is worth the paper it's written on.)

No ones license grants you a right to fish and keep fish providing you fish within regulations.

However we should all have the same rights as FN.  What would the government do if we all started to?

The FN need to end being victims.

[Sandman]

And you think that the NDP won't change a bunch of laws to fit their agenda?  Maybe not in the fishing area, but for sure in the hunting area.

No, I don't think that.  The NDP can't change any laws, since they are not in power.  I said "the BC government," which means whomever is in power.  Try to keep up.

[blacktail2]

It's quite simple-there is nothing in law that says recreational fishing is a right-your licence grants a privilege nothing more.

(BTW-Some musty proclamation signed in another country a thousand years ago is worth the paper it's written on.)

Well said Dogbreath !

[Riverman]

IMHO We have a right to fish recreationally but only under provincial law.We only have a freedom to fish from the Federal point of view.The Charter of Rights and Freedoms gifted to us by Trudeau appears to due a good job before the Supreme Court of protecting our Rights but a damn poor job of protecting our freedoms.Like I said just my 2cents.

[Sandy]

IMHO We have a right to fish recreationally but only under provincial law.We only have a freedom to fish from the Federal point of view.The Charter of Rights and Freedoms gifted to us by Trudeau appears to due a good job before the Supreme Court of protecting our Rights but a damn poor job of protecting our freedoms.Like I said just my 2cents.

actualy the gift was from Diefenbaker, Trudue just put on the wrapping and tinsel