"Salmon for Peanut Butter": Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights
Bibliographic record
Abstract
The recent case of R. v. Kapp marks a downward turning point in Aboriginal rights law in Canada. At issue was a federal ameliorative program that established an exclusive Native commercial fishery and whether such a program violated non-Native fishers’ guarantee of equality under s. 15(1) of the Charter. Judge Kitchen of the British Columbia Provincial Court found that the Native fishery was not a valid ameliorative program under s. 15(2) of the Charter and was “analogous to racial discrimination.” While the decision can be easily criticized on the grounds that the wrong s. 15(1) and s. 15(2) legal tests were applied (or that the correct tests were incorrectly applied), it is Kapp’s deafening silence on Aboriginal rights and ss. 25 and 35(1) of the Constitution that requires greater attention and creates alarm. A critical analysis of the legal and political context of the Kapp judgment, and of its unspoken assumptions about the nature of Aboriginal rights and struggles for justice, reveals two key issues that could have helped Judge Kitchen reach a more just resolution—recognition of these issues will also help appellate courts deal with the facts of the case in a more satisfactory way. By addressing (1) the possible modes of interaction between Charter equality rights and Aboriginal rights under the Constitution, and (2) the reluctance of courts and Canadians in general to recognize commercially-based Aboriginal rights, this paper offers an alternative lens through which the dispute in Kapp may be examined and resolved. In so doing, it also attempts to shed light on future problems and challenges in Canadian Aboriginal rights litigation more generally.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.007 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.001 |
| Science and technology studies | 0.020 | 0.020 |
| Scholarly communication | 0.009 | 0.003 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.009 | 0.007 |
| Insufficient payload (model declined to judge) | 0.010 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".