R. v. Perley and Perley, (1982) 37 N.B.R.(2d) 591 (PC)

• Judge: Tomlinson, J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: January 11, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 37 N.B.R.(2d) 591 (PC)

R. v. Perley (1982), 37 N.B.R.(2d) 591 (PC);

    37 R.N.-B.(2e) 591; 97 A.P.R. 591

MLB headnote and full text

Sommaire et texte intégral

R. v. Perley and Perley

Indexed As: R. v. Perley and Perley

Répertorié: R. v. Perley and Perley

New Brunswick Provincial Court

Tomlinson, J.

January 11, 1982.

Summary:

Résumé:

The accused Maliseet Indians were charged with hunting deer at night contrary to s. 33(1)(a) of the Fish and Wildlife Act, R.S.N.B. 1973, c. F-14. The only defence of the accused was that, as New Brunswick Indians, they had an aboriginal right to hunt anywhere in New Brunswick at any time by any means and were exempt from the provisions of the Fish and Wildlife Act. They were not hunting on an Indian reserve at the time.

The New Brunswick Provincial Court convicted the accused. The court held that the right to hunt or fish by Indians is restricted to the right to hunt or fish for food on reserves only, subject to legislative control by the Parliament of Canada.

Compare R. v. Polchies (1981), 37 N.B.R.(2d) 544; 97 A.P.R. 544.

Constitutional Law - Topic 6350

Federal jurisdiction - Indians and lands reserved for Indians - General - The New Brunswick Provincial Court held that the enactment of the British North America Act abrogated all aboriginal or treaty rights of Indians except those relating to lands reserved for Indians, where the rights became subject to federal legislative control - See paragraphs 17 to 18.

Fish and Game - Topic 841

Indian and Eskimo rights - Right to hunt for food - General - The New Brunswick Provincial Court held that Indians did not have the right to hunt and fish for food at any time in New Brunswick on lands other than Indian reserves and that off reserves Indians were bound by the Fish and Wildlife Act.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - The New Brunswick Provincial Court held that the enactment of the British North America Act abrogated all aboriginal or treaty rights of Indians except those related to lands reserved for Indians, where the rights became subject to federal legislative control - See paragraphs 17 to 18.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - The New Brunswick Provincial Court held that s. 88 of the Indian Act makes applicable to Indians all laws of general application in a province, including provincial game laws, subject to the terms of any treaty or statutes of the Parliament of Canada - See paragraph 17.

Cases Noticed:

R. v. Jorden, [1964] 2 C.C.C. 243, refd to. [para. 15].

Frank v. The Queen (1977), 15 N.R. 487; 34 C.C.C.(2d) 209, consd. [para. 17].

R. v. Kruger and Manuel (1977), 15 N.R. 495; 34 C.C.C.(2d) 377, consd. [para. 17].

R. v. Simon (1958), 43 M.P.R. 101, appld. [para. 17].

R. v. Francis, [1970] 3 C.C.C. 165, appld. [para. 17].

R. v. Paul (1980), 30 N.B.R.(2d) 545; 70 A.P.R. 545; 54 C.C.C.(2d) 506, appld. [para. 17].

R. v. Isaac (1976), 13 N.S.R.(2d) 460; 9 A.P.R. 460, appld. [para. 25].

Statutes Noticed:

British North America Act, 1867, sect. 91(24), sect. 92(13), sect. 92(16) [para. 9].

ConstitutIon Act, 1981, sect. 25, sect. 26 [para. 21].

Fish and Wildlife Act, R.S.N.B. 1973, c. F-14, sect. 33(1)(a) [para. 1]; sect. 109 [para. 4].

Act to Confirm an Agreement Between Canada and New Brunswick Respecting Indian Reserves, S.N.B. 1958, c. 4 [paras. 22 to 24].

Counsel:

Graydon Nicholas, for the accused;

Roland Levesque, for the Crown.

This case was heard at Perth-Andover, New Brunswick, before TOMLINSON, J., of the New Brunswick Provincial Court, who delivered the following judgment on January 11, 1982: