R. v. Nicholas and Bear et al., (1984) 55 N.B.R.(2d) 413 (PC)

• Judge: Desjardins, J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: June 04, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 55 N.B.R.(2d) 413 (PC)

R. v. Nicholas (1984), 55 N.B.R.(2d) 413 (PC);

    55 R.N.-B.(2e) 413; 144 A.P.R. 413

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[French language version follows English language version]

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

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R. v. Nicholas and Bear et al.

Indexed As: R. v. Nicholas and Bear et al.

Répertorié: R. v. Nicholas and Bear et al.

New Brunswick Provincial Court

County of Victoria

Desjardins, J.

June 4, 1984.

Summary:

Résumé:

Four Maliseet Indians from the Tobique Indian Reserve were charged with obstructing a fisheries officer in the execution of his duty contrary to s. 38 of the Fisheries Act. Two of the Indians were also charged with unlawfully fishing with the use of a gill net in non-tidal waters contrary to s. 7 of the New Brunswick Fishery Regulations. The Indians argued that they were not subject to the legislation under which they were charged.

The New Brunswick Provincial Court held that the fisheries legislation applied to the accused Indians, and convicted and sentenced them on all charges.

Fish and Game - Topic 961

Indian rights - Right to fish - General - The Royal Proclamation of 1763 reserved to Indians their "hunting grounds" - The New Brunswick Provincial Court held that under the Proclamation, the term "hunting grounds" included a recognition of the right of the Indians to also use the land reserved to them for fishing - See paragraphs 17, 18.

Fish and Game - Topic 963

Indian rights - Right to fish - Constitution Act - Effect of - Four Indians were charged with offences contrary to the Fisheries Act and the New Brunswick Fishery Regulations - The Indians argued that because of s. 35 of the Constitution which affirmed native rights, treaty fishing rights were also affirmed, notwithstanding that the treaty rights may have been changed by legislation - In convicting the Indians, the New Brunswick Provincial Court stated that the enactment of s. 35 did not change Indian rights but recognized and affirmed constitutionally such rights as they stood as effected by valid legislation and case law on the date the Constitution was enacted - See paragraphs 30 to 35.

Fish and Game - Topic 964

Indian rights - Right to fish - Canadian Charter of Rights and Freedoms - Effect of - Four Indians were charged with offences contrary to the Fisheries Act and the New Brunswick Fishery Regulations - The Indians argued that their aboriginal rights to fish pursuant to the Royal Proclamation of 1763 were now guaranteed by s. 25(a) of the Charter - In convicting the Indians, the New Brunswick Provincial Court stated that although Indian fishing rights are recognized by s. 25(a), the rights are by virtue of s. 1 of the Charter subject to reasonable limits prescribed by law, for example fisheries legislation - See paragraphs 15 to 29.

Fish and Game - Topic 968

Indian rights - Right to fish - Application of Fisheries Act to treaty rights - The Treaty of 1725 and the Peace Treaty of 1778 granted certain rights to Indians to hunt and fish - The New Brunswick Provincial Court held that the rights in these two treaties were in conflict with and therefore overridden by s. 7(1) of the New Brunswick Fishery Regulations made under s. 34 of the Fisheries Act - See paragraphs 13 to 15.

Fish and Game - Topic 2718

Fines and penalties - Obstruction of officer - Four accused were convicted of wilfully obstructing a fisheries officer in the execution of his duty contrary to s. 38 of the Fisheries Act, R.S.C. 1970, c. F-14 - The New Brunswick Provincial Court fined each accused $100.00 or ten days in jail in default - See paragraph 36.

Fish and Game - Topic 2719

Fines and penalties - Fishing with a gill net - Two accused were convicted of fishing with a gill net in non-tidal waters contrary to s. 7(1) of the New Brunswick Fishery Regulations made pursuant to s. 34 of the Federal Fisheries Act - The New Brunswick Provincial Court imposed a fine of $100.00 on each accused or ten days in jail in default - See paragraph 36.

Indians, Inuit and Métis - Topic 505

Rights - Constitution Act - Effect of - The New Brunswick Provincial Court referred to a textbook discussion of three possible interpretations of s. 35 of the Constitution Act, 1982, which affirmed aboriginal and treaty rights of native people - See paragraph 33.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - Royal Proclamation of 1763 - The New Brunswick Provincial Court applied a liberal interpretation when it considered the meaning of the Royal Proclamation of 1763 - See paragraph 19.

Indians, Inuit and Métis - Topic 5464

Land - Surrender of - What constitutes - Four Indians were charged with offences contrary to the Federal Fisheries Act and the New Brunswick Fishery Regulations - The Indians argued that the land upon which the offences occurred was never properly surrendered to the Crown and therefore was reserve land whereupon the Indians could fish unrestricted by fisheries legislation - The New Brunswick Provincial Court rejected the defence's argument respecting the issue of surrender and convicted the Indians as charged - See paragraphs 8 to 12.

Indians, Inuit and Métis - Topic 6265

Government of - What law governs - Federal law - The New Brunswick Provincial Court stated that Indian treaties were of no effect where the rights therein are found to be in conflict with federal laws and regulations - See paragraph 13.

Words and Phrases

Hunting grounds - The New Brunswick Provincial Court discussed the phrase "hunting grounds" as it appeared in the Royal Proclamation of 1763 - See paragraphs 17, 18.

Cases Noticed:

R. v. Nicholas et al. (1978), 22 N.B.R.(2d) 285; 39 A.P.R. 285, folld. [para. 10].

R. v. George, [1966] S.C.R. 267, folld. [paras. 13, 32].

R. v. Kruger and Manuel (1977), 15 N.R. 495; 34 C.C.C.(2d) 377, folld. [paras. 14, 32].

R. v. Francis (1970), 2 N.B.R.(2d) 14; 3 C.C.C.(2d) 165, refd to. [para. 15].

R. v. Sikyea, [1964] S.C.R. 642, refd to. [paras. 15, 32].

R. v. Jacques (1978), 20 N.B.R.(2d) 576; 34 A.P.R. 576, not folld. [para. 18].

Nowegijick v. Minister of National Revenue et al. (1983), 46 N.R. 41, folld. [para. 19].

R. v. Paul (1980), 30 N.B.R.(2d) 545; 70 A.P.R. 545, folld. [para. 20].

R. v. Jack (1979), 28 N.R. 162, refd to. [para. 26].

R. v. Derricksan (1976), 16 N.R. 231; 31 C.C.C.(2d) 575, folld. [para. 32].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 25(a) [paras. 6, 16 to 29].

Constitution Act 1982, Part II, sect. 35 [paras. 6, 30 to 35]; sect. 37 [para. 35].

Fisheries Act, R.S.C. 1970, c. F-14, generally [paras. 26, 29, 32]; sect. 34 [paras. 1, 15]; sect. 38 [paras. 1, 36].

Indian Act, R.S.C. 1886, sect. 39 [para. 8].

Indian Act, S.C. 1959, c. 47 [para. 11].

Indian Act, R.S.C. 1970, c. I-16, generally [para. 5]; sect. 73(1)(a) [para. 28]; sect. 88 [para. 14].

New Brunswick Fishery Regulations, Cons. Regs. Can. 1978, c. 844, generally [paras. 5, 26, 29, 32]; sect. 6.1 [para. 28]; sect. 7(1) [paras. 1, 15, 36].

Treaty of 1778 [paras. 7, 13].

Royal Proclamation of 1763 [paras. 7, 17 to 19, 21, 22].

Treaty of 1725 [paras. 7, 13].

Treaty of 1779 [para. 20].

Authors and Works Noticed:

Hogg, Peter W., Canada Act 1982, Annotated, pp. 82, 83 [para. 33].

Moses Perley Report of 1841 [paras. 7, 23, 24].

Counsel:

[None disclosed.]

This case was heard before Desjardins, J., of the New Brunswick Provincial Court, who delivered the following decision on June 4, 1984: