Stuart Rush

Appeal in a major Aboriginal title claim involving hereditary chiefs asserting rights over a large area of British Columbia.

The Court held that Aboriginal title is a sui generis right in land protected by s. 35(1), conferring exclusive use and occupation for a variety of purposes subject to an inherent limit against uses irreconcilable with the group’s attachment to the land.

The Court also held that oral histories must be given due weight in Aboriginal litigation and that the trial judge erred in his treatment of such evidence, requiring a new trial.

On the cross-appeal, the Court held that the province lacked constitutional authority after 1871 to extinguish Aboriginal rights, either directly or through s. 88 of the Indian Act.

The appellants appealed from a judgment of the British Columbia Court of Appeal that dismissed an appeal from a judgment continuing an interlocutory injunction.

The injunction restrained the appellants and members of their bands from fishing in accordance with Tribal Council by-laws.

The Supreme Court of Canada dismissed the appeal, finding no error in the Court of Appeal's decision not to interfere with the Chambers Judge's disposition.