R. v. Paul (V.J.) and Moulton (D.B.), (1988) 91 N.B.R.(2d) 231 (TD)

• Judge: Dickson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 15, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 231 (TD)

R. v. Paul (V.J.) (1988), 91 N.B.R.(2d) 231 (TD);

    91 R.N.-B.(2e) 231; 232 A.P.R. 231

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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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Vinol Joseph Paul (appellant) v. Her Majesty the Queen (respondent); Donald Bernard Moulton (appellant) v. Her Majesty the Queen (respondent)

(W/CM/34/85)

Indexed As: R. v. Paul (V.J.) and Moulton (D.B.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

Dickson, J.

March 15, 1988.

Summary:

Two Indians were convicted of unlawfully fishing with a gill net in nontidal waters contrary to s. 7(1) of the New Brunswick Fishery Regulations. The Indians appealed, arguing that because of s. 35 of the Constitution Act, 1982, they were entitled to fish under a 1725 Treaty and the Royal Proclamation of 1763.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal and affirmed the convictions, holding that the Indians had to comply with the Fisheries Act and the Regulations thereunder.

Fish and Game - Topic 963

Indian rights - Right to fish and regulation of Indian fishery - Constitution Act - Effect of - Two Indians were convicted of unlawfully fishing with a gill net contrary to the New Brunswick Fishery Regulations - They appealed, alleging that s. 35(1) of the Constitution Act, 1982, gave a 1725 Treaty and the Royal Proclamation of 1763 precedence over the federal Fisheries Act and Regulations thereunder - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeals, rejecting the contention that s. 35(1) revived rights which had been modified before April 17, 1982, when s. 35(1) came into force.

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35 - Interpretation - The Constitution Act, 1982, s. 35(1), recognized the existing aboriginal and treaty rights of the aboriginal people of Canada - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 35(1) did not revive rights retroactively, but rather recognized only those rights existing or in being at the time of the enactment of the Constitution Act (i.e., April 17, 1982) - See paragraph 7.

Cases Noticed:

R. v. Nicholas and Bear et al. (1984), 55 N.B.R.(2d) 413; 144 A.P.R. 413, refd to. [para. 4].

R. v. Martin et al. (1985), 65 N.B.R.(2d) 21; 167 A.P.R. 21, folld. [para. 6].

R. v. Eninew (1983), 28 Sask.R. 168; 7 C.C.C.(3d) 443, folld. [para. 6].

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. 7].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1).

Fisheries Act Regulations, New Brunswick Fishery Regulations, C.R.C. 1978, c. 844, sect. 7(1).

Fisheries Act, R.S.C. 1970, c. F-14, sect. 34.

Authors and Works Noticed:

Hogg, P.W., Canada Act 1982 Annotated [para. 5].

Counsel:

Graydon Nicholas, for the appellants;

Roland V. Levesque, for the Crown.

These appeals were heard before Dickson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following decision on March 15, 1988.