This case involved four first nations accuseds, who were charged with harvesting clams in a closed area, namely, the Nanaimo estuary. At trial, evidence was led that that the Nanaimo First Nations Band and the Federal Government had entered into an agreement to suspend the treaty rights to harvest in that area because of pollutants in the area creating a health hazard for persons consuming the clams.
At trial, the case was defended based upon an alleged infringement of their treaty right to fish.
In rejecting this defence, the court held as follows:
1. Given the evidence that suspension of the fishing rights was made with the agreement of the Band Council for safety and health reasons, the court found no infringement;
2. In the alternative, if there was an infringement the court held that it was justified for the follow reasons:
a. The suspension was reasonable because of health and safety concerns
b. Despite the fact that it was now necessary to take a car or ferry to find harvesting grounds, the suspension did not impose undue hardship
c. With respect to whether or not the preferred means of exercising an aboriginal right had been denied, the court concluded that this right did not include a right to exercise the right in a preferred location; and
d. There was extensive consultations.