R. v. Fowler (J.), (1993) 134 N.B.R.(2d) 361 (PC)

• Judge: Clendening, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: February 19, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 134 N.B.R.(2d) 361 (PC)

R. v. Fowler (J.) (1993), 134 N.B.R.(2d) 361 (PC);

    134 R.N.-B.(2e) 361; 342 A.P.R. 361

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Joseph Fowler

Indexed As: R. v. Fowler (J.)

New Brunswick Provincial Court

Clendening, P.C.J.

February 19, 1993.

Summary:

The accused was charged with hunting without a licence contrary to s. 41 of the Fish and Wildlife Act, S.N.B. 1980, c. F-14.1. He pleaded in defence that he was an Indian and entitled to hunt, notwithstanding that he was not registered under the Indian Act.

The New Brunswick Provincial Court acquitted the accused upon finding that his Indian ancestry through his mother gave him "a sufficient and substantial connection" with the Maliseet tribe to entitle him to the bene­fit of the treaty right to hunt. The court held that registered status under the Indian Act was not necessary for treaty protection.

Constitutional Law - Topic 6351

Federal jurisdiction - Indians and lands reserved for Indians - Indian - What constitutes - A man charged with hunting without a licence pleaded in defence that he was a Maliseet and entitled to hunt by treaty, notwithstanding that he was not registered under the Indian Act - His father was white, but his mother was Mal­iseet, both of her parents having been reserve residents with well-known Mal­iseet names - The New Brunswick Provi­ncial Court acquitted the accused upon finding that his Indian ancestry through his mother gave him "a sufficient and sub­stantial connection" with the Maliseet tribe to entitle him to the benefit of the treaty right to hunt - The court held that regis­tered status under the Indian Act was unnecessary for treaty protection under the Constitution Act, s. 35.

Fish and Game - Topic 824

Indian and Inuit rights - Definitions - Indian - Defined - [See Constitutional Law - Topic 6351 ].

Fish and Game - Topic 841

Indian and Inuit rights - Right to hunt for food - General - Status not required - [See Constitutional Law - Topic 6351 ].

Cases Noticed:

Eskimos, Re, [1939] 2 D.L.R. 417 (S.C.C.), consd. [para. 10].

R. v. Augustine et al.; R. v. Barlow (1986), 74 N.B.R.(2d) 156; 187 A.P.R. 156 (C.A.), consd. [para. 11].

R. v. Chevrier, [1988] 1 C.N.L.R. 128 (Ont. Dist. Ct.), appld. [para. 22].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 10].

Constitution Act, 1982, sect. 35 [para. 8].

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 41 [para. 4].

Indian Act, R.S.C. 1985, c. I-5, sect. 2(1) [para. 5].

Counsel:

[Not available]

This case was heard at Fredericton, N.B., before Clendening, P.C.J., of the New Bruns­wick Provincial Court, who delivered the following judgment on February 19, 1993: