The appellant, a member of the Musqueam Indian Band, was charged under the Fisheries Act with fishing with a drift net longer than permitted by the Band's Indian food fishing licence.
He defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction was inconsistent with s. 35(1) of the Constitution Act, 1982.
The Supreme Court of Canada established a framework for analyzing s. 35(1) claims, holding that an aboriginal right is not extinguished by mere regulation and that any government regulation infringing upon an aboriginal right must be justified.
The Court dismissed the appeal and cross-appeal, ordering a new trial to determine whether the net length restriction constituted a prima facie infringement and, if so, whether it was justified.
