Lewis F. Harvey

The appeal concerned whether status Indians in New Brunswick had to pay provincial sales tax on goods purchased off reserve but intended for use on reserve.

The majority held that s. 87 of the Indian Act protects only property physically situated on a reserve, or exceptionally property whose paramount location is on a reserve, at the time the tax attaches.

The court characterized the New Brunswick scheme, in the context of retail sales, as a sales tax triggered at the point of sale rather than a true consumption tax.

Because the goods were purchased off reserve and the tax attached there, the statutory exemption did not apply and the provincial legislation was not rendered inoperative.

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.