The appellants were convicted of attempting to sell herring spawn on kelp without the required licence and argued that the prohibition infringed an aboriginal right protected by s. 35(1) of the Constitution Act, 1982.
The majority held that the conduct amounted to an attempt to sell and that the Heiltsuk had established an aboriginal right to trade herring spawn on kelp on a commercial basis, grounded in pre-contact practices integral to their distinctive culture.
The majority further held that the right had not been extinguished and that the regulatory scheme prima facie infringed it.
However, the evidentiary record was insufficient to determine whether the infringement was justified, so a new trial was ordered on guilt or innocence and on justification.
A dissent would have found either no applicable aboriginal right in the circumstances or that any such right had been extinguished.
