R. v. Perley, (1980) 33 N.B.R.(2d) 231 (PC)

• Judge: Tomlinson, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: December 01, 1980
• Jurisdiction: New Brunswick
• Citations: (1980), 33 N.B.R.(2d) 231 (PC)

R. v. Perley (1980), 33 N.B.R.(2d) 231 (PC);

    33 R.N.-B.(2e) 231; 80 A.P.R. 231

MLB headnote and full text

Sommaire et texte intégral

R. v. Perley

Indexed As: R. v. Perley

Répertorié: R. v. Perley

New Brunswick Provincial Court

Tomlinson, P.C.J.

December 29, 1980.

Summary:

Résumé:

This headnote contains no summary.

Fish and Game - Topic 968

Indian and Eskimo rights - Right to fish - Application of Fisheries Act to treaty rights - The accused, a status Indian, was charged with fishing with a gill net contrary to the Fisheries Act, R.S.C. 1970, c. F-14 - The New Brunswick Provincial Court convicted the accused and held that the Fisheries Act and regulations thereunder were applicable to treaty Indians fishing in contravention of the Act in waters within or adjacent to a reserve and were paramount to treaty rights - See paragraphs 8 to 18.

Fish and Game - Topic 970

Indian and Eskimo rights - Right to fish - On reserve - Statutory regulation of - The accused, a status Indian, was charged with fishing with a gill net contrary to the Fisheries Act, R.S.C. 1970, c. F-14 - The accused was fishing at a place within or adjacent to an Indian reserve - The accused alleged that "legislative jurisdiction" over the alleged offence fell outside the Fisheries Act, and was within the jurisdiction of the Indian Act, R.S.C. 1970, c. I-6 - The New Brunswick Provincial Court convicted the accused and held that the Fisheries Act and regulations thereunder were applicable to treaty Indians fishing in contravention of the Act in waters within or adjacent to a reserve and were paramount to treaty rights - The court further held that the provisions of ss. 73(1)(a) and 81(o) of the Indian Act did not negate the Fisheries Act and the regulations made thereunder - See paragraphs 7, 8, 16 and 17.

Cases Noticed:

R. v. Sacobie (1980), 30 N.B.R.(2d) 70; 70 A.P.R. 70, consd. [para. 3].

R. v. Derricksan (1977), 16 C.R.N.S. 231; 16 N.R. 231 (S.C.C.), consd. [para. 10].

Francis v. The Queen (1969), 2 N.B.R.(2d) 14, consd. [para. 11].

R. v. Nicholas et al. (1979), 26 N.B.R.(2d) 54; 55 A.P.R. 54, consd. [para. 12].

R. v. Elk (1980), 16 C.R.(3d) 284 (S.C.C.), consd. [para. 14].

Statutes Noticed:

Fisheries Act, R.S.C. 1970, c. F-14 [paras. 1 to 4, 5 to 17, 19].

Indian Act, R.S.C. 1970, c. I-6, sect. 73(1)(a); sect. 81(o) [paras. 5 to 8, 16, 17].

Counsel:

Graeme S. Shaw, for the Attorney General of Canada;

Daniel L. Watters, for the defence.

This case was heard before TOMLINSON, P.C.J., of the New Brunswick Provincial Court at Perth-Andover, N.B., on December 1, 1980. The judgment of TOMLINSON, P.C.J., was delivered at Perth-Andover, N.B., on December 29, 1980: