R. v. Peter-Paul (T.), (1996) 182 N.B.R.(2d) 270 (PC)

• Judge: Arsenault, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: August 27, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 182 N.B.R.(2d) 270 (PC)

R. v. Peter-Paul (T.) (1996), 182 N.B.R.(2d) 270 (PC);

    182 R.N.-B.(2e) 270; 463 A.P.R. 270

MLB headnote and full text

[French language version follows English language version]

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

....................

Her Majesty The Queen v. Thomas Peter-Paul

Indexed As: R. v. Peter-Paul (T.)

(formerly called R. v. Paul (T.P))

New Brunswick Provincial Court

Arsenault, P.C.J.

August 27, 1996.

Summary:

The accused, a status MicMac Indian, was charged with unlawfully removing timber from Crown lands, contrary to s. 67(1)(b) of the Crown Lands and Forests Act, thereby committing an offence pursuant to s. 67(2) of the Act. The issue in this case was whether the timber was "unlawfully" re­moved, since the defence was that the ac­cused, being a status Indian, had a treaty right to harvest timber on Crown lands.

The New Brunswick Provincial Court found the accused not guilty of the offence charged.

Forests and Forest Products - Topic 5246

Offences - Illegal cutting or removal of timber - Removal of timber from Crown lands - The accused, a status MicMac Indian, was charged with unlawfully re­moving timber from Crown lands, contrary to s. 67(1)(b) of the Crown Lands and Forests Act, thereby committing an offence pursuant to s. 67(2) of the Act - The accused and three other status Indians had removed three logs for the purpose of selling them - The New Brunswick Pro­vincial Court acquitted the accused - The court found that the Province's exercise of power under the Crown Lands and Forests Act did not override or extinguish aborig­inal or treaty rights, that the accused was covered by various treaties which were within the ambit of s. 88 of the Indian Act, that the activity of harvesting trees came within the purview of the treaties and that the accused was therefore exempt from prosecution under ss. 67(1)(b) and 67(2) of the Crown Lands and Forests Act.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - [See Forests and Forest Products - Topic 5246 ].

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - Extinguish­ment - [See Forests and Forest Products - Topic 5246 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - The New Brunswick Provincial Court referred to the principle that treaties are to receive a fair, large and liberal construc­tion in favour of the Indians - See para­graphs 52 and 54.

Indians, Inuit and Métis - Topic 4417

Treaties and proclamations - Existing aboriginal and treaty rights - [See Forests and Forest Products - Topic 5246 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - [See Forests and Forest Products - Topic 5246 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - The New Brunswick Provincial Court stated that "[t]he broadly stated principle is that an aboriginal right will not be extinguished by provincial legislation but can suffer interference by being affected, regulated, diminished, impaired or suspended. Before such interference can occur, however, the use which the native will make of the resource should be shown to be incompat­ible with Crown occupancy to the extent that the realization of the purpose of such occupancy is being prevented" - See para­graph 67 - The court held that the removal of three logs from Crown lands by a status Indian did not prevent the realization of the purpose for which access had been granted by the Province to the holder of a timber licence - See paragraph 63.

Indians, Inuit and Métis - Topic 6025

Aboriginal rights - Particular rights - Harvesting trees - [See Forests and For­est Products - Topic 5246 and second Indians, Inuit and Métis - Topic 6018 ].

Cases Noticed:

Delgamuukw et al. v. British Columbia et al. (1993), 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), consd. [para. 7].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 56 C.C.C.(3d) 225, consd. [para. 7].

R. v. Pelletier (D.) et al. (1996), 175 N.B.R.(2d) 70; 446 A.P.R. 70 (T.D.), consd. [para. 7].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15; 23 C.C.C.(3d) 238, consd. [para. 7].

R. v. Paul and Polchies (1988), 90 N.B.R.(2d) 332; 228 A.P.R. 332 (T.D.), consd. [para. 7].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 34].

R. v. Fullerton (M.) (1996), 182 N.B.R.(2d) 138; 463 A.P.R. 138 (Prov. Ct.), refd to. [para. 43].

Statutes Noticed:

Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1, sect. 67(1)(b), sect. 67(2) [para. 4].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 25].

Counsel:

Counsel not disclosed.

This case was heard at Bathurst, New Brunswick, before Arsenault, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on August 27, 1996.