This case was heard in the Nova Scotia Court of Appeal. 

The appellants were Mi’kmaq. They were accused of fishing in a time, manner, and place that violated the terms of the federal Fisheries Act. The appellants had been fishing for food. The appellants had also been fishing in the vicinity of reserve land and there had been a surplus in the local fisheries population at the time. 

The accused were found guilty at trial. They appealed their convictions. They argued that as Aboriginal individuals they had a right to fish for food in that area, that under section 35(1) of the Constitution Act they were immune from prosecution under the Fisheries Act because of their status as Aboriginal people, and that under section 35 they also had a right to share in fisheries resources in times where there was a surplus in the fish population. 

The Court determined that the appellants had Aboriginal rights that were protected by section 35(1) of the Constitution Act, 1982 because their rights had not been terminated by treaty or legislation. They had the right to fish for food in the waters in which they had been found fishing. They also had the right to an allocation of the surplus in fisheries resources which could only be limited by conservation efforts. 

The appeal was allowed, and the appellants were acquitted.

View the Decision on CanLII: https://www.canlii.org/en/ns/nsca/doc/1990/1990canlii2412/1990canlii2412.html

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