This case involved three aboriginal fishermen charged with fishing the early Stuart run in the Fraser River without a licence.
At trial, the Crown conceded that their aboriginal right to fish had been infringed. Accordingly, the issue before the court was whether or not the Crown was justified in imposing the closure of the fishery for conservation purposes.
At trial, the defence argued that the infringement could not be justified because, amongst other things, D.F.O. had allowed both an in river test fishery and a sports fishery. After reviewing the test set out in R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.), the trial court concluded that the infringement could not be justified and entered stays of proceedings.
Upon summary conviction appeal to the British Columbia Supreme Court, the decision of the trial court was reversed and the stays were lifted. In doing so, the court reasoned as follows:
1. The trial judge made palpable and overriding errors with respect to his findings regarding the impact of the sports fishery;
2. With respect to whether or not there was a valid legislative objective for the infringement;
3. Given the fact that very small numbers of fish were caught in the test fishery and non-tidal sports fishery, top priority was given to the aboriginal fishery after conservation measures;
4. There was a little infringement as possible; and
5. There was adequate consultation.