R. v. Nicholas (W.) and Bear (G.) et al., (1988) 91 N.B.R.(2d) 248 (TD)

• Judge: Dickson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 22, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 248 (TD)

R. v. Nicholas (W.) (1988), 91 N.B.R.(2d) 248 (TD);

    91 R.N.-B.(2e) 248; 232 A.P.R. 248

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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Wayne Nicholas, Gerald Bear, Dwight Bear and Roger Hugh Bear (appellants) v. R. (respondent)

(W/CM/39/84)

Indexed As: R. v. Nicholas (W.) and Bear (G.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

Dickson, J.

March 22, 1988.

Summary:

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 submitted that they were not subject to the legislation under which they were charged.

The New Brunswick Provincial Court in a judgment reported 55 N.B.R.(2d) 413; 144 A.P.R. 413, held that the Fisheries Act applied to the accused Indians and convicted and sentenced them on all the charges. They appealed.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

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 - They submitted that because s. 35 of the Constitution Act, 1982, affirmed native rights, treaty fishing rights were also affirmed, notwithstanding that the treaty rights may have been changed by legislation - The New Brunswick Court of Queen's Bench, Trial Division, affirmed their convictions and held that the enactment of s. 35 did not change Indian rights, but recognized and affirmed constitutionally such rights as they stood as affected by valid legislation and case law on the date the Constitution was enacted.

Fish and Game - Topic 964

Indian rights - Right to fish - Canadian Charter of Rights and Freedoms - Effect of - Section 25 of the Charter provided that the guarantee in the Charter of certain rights and freedoms "shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples" - The New Brunswick Court of Queen's Bench, Trial Division, stated that s. 25 "confers no new substantive rights or freedoms other than the right not to have aboriginal rights or freedoms derived from a treaty or otherwise abrogated or derogated from by any other guarantee, of general application, contained in the Charter".

Indians, Inuit and Métis - Topic 505

Rights - Constitution Act - Effect of - [see Fish and Game - Topic 963 above].

Indians, Inuit and Métis - Topic 4417

Treaties and proclamations - General - Existing aboriginal and treaty rights - [see Fish and Game - Topic 963 above].

Cases Noticed:

R. v. Martin et al. (1986), 65 N.B.R.(2d) 21; 167 A.P.R. 21, folld. [para. 9].

R. v. Eninew (1983), 28 Sask.R. 168; 7 C.C.C.(3d) 443, consd. [para. 9].

A.G. for Ontario v. Bear Island Foundation et al.; Potts et al. v. A.G. for Ontario (1984), 15 D.L.R.(4th) 321, consd. [paras. 9, 10].

R. v. Steinhauer (1985), 63 A.R. 381, refd to. [para. 9].

R. v. Hare et al., 14 W.C.B. 161, refd to. [para. 9].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 9].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 6]; sect. 25 [para. 5].

Constitution Act, 1982, sect. 35 [para. 5].

Fisheries Act, R.S.C. 1970, c. F-14, generally.

New Brunswick Fishery Regulations, C.R.C. 1978, c. 844, generally.

Royal Proclamation of 1763.

Treaty of 1725.

Authors and Works Noticed:

Hogg, Canada Act 1982, Annotated, pp. 82-83 [para. 7].

Counsel:

Graydon Nicholas, for the appellants;

Graeme Shaw, for the respondent.

This case was heard at Woodstock, N.B., before Dickson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following judgment on March 22, 1988.