Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Aboriginal law - Constitutional law - Constitution Act, 1982, s. 35 - Aboriginal rights - Indian band - Fishing - Claims dismissed in lower courts - Whether the courts below erred by reversing the approach to identifying an underlying practice and to characterizing an Aboriginal right, as set out by this Court in R. v. Marshall, [1999] 3 S.C.R. 456, and R. v. Bernard, [2005] 2 S.C.R. 220, and followed in R. v. Sappier, [2006] 2 S.C.R. 686 - Whether the courts below erred in their identification of pre contact practices, in respect of a commercial right - Whether the courts below erred by refusing to consider whether Aboriginal fishing rights of consumption and sale were established on the evidence - Whether, in dismissing the claim based on the honor of the Crown, the courts below erred by concluding that the allotment of fishing station reserves by the Crown did not imply a promise of fishing opportunities.

The appellants comprise several tribes or houses known prior to European contact as the Coast Tsimshian who inhabited territories and fishing sites along the northwest coast of British Columbia. They commenced proceedings in 2002, seeking inter alia declarations that they have existing Aboriginal rights under s. 35(1) of the Constitution Act, 1982 to harvest all species of “Fisheries Resources” (defined to mean all species of fish, shellfish and aquatic plants) in their “Tribal Territories” (as shown on a map attached to the Statement of Claim) and to “sell [them] on a commercial scale” in Canada. This case arises not as a result of an alleged regulatory offence, but in an action brought by the Aboriginal group for declaratory relief against the federal and provincial governments. Before trial, an order was made that severed from the proceeding the question of Aboriginal title: 2006 BCSC 1463. At trial, all of the appellants’ claims not severed pursuant to the Severance Order were dismissed. The Court of Appeal dismissed the appeal.