R. v. Polchies; R. v. Paul; R. v. Paul; R. v. Paul and Paul, (1981) 37 N.B.R.(2d) 546 (PC)

• Judge: Harper, J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: December 02, 1981
• Jurisdiction: New Brunswick
• Citations: (1981), 37 N.B.R.(2d) 546 (PC)

R. v. Polchies (1981), 37 N.B.R.(2d) 546 (PC);

         37 R.N.-B.(2e) 546; 97 A.P.R. 546

MLB headnote and full text

Sommaire et texte intégral

R. v. Polchies; R. v. Paul; R. v. Paul; R. v. Paul and Paul

Indexed As: R. v. Polchies; R. v. Paul; R. v. Paul; R. v. Paul and Paul

Répertorié: R. v. Polchies; R. v. Paul; R. v. Paul; R. v. Paul and Paul

New Brunswick Provincial Court

Criminal Division

Harper, J.

December 2, 1981.

Summary:

Résumé:

The accused Maliseet Indians were charged with offences under the Fish and Wildlife Act, R.S.N.B. 1973, c. F-14, including hunting with a light, possessing a loaded firearm in a vehicle and the illegal possession of dead moose or deer. The only defence of the accused was that, as New Brunswick Indians, they were entitled to hunt for food in New Brunswick under the Proclamation of 1763 and were exempt from the provisions of the Fish and Wildlife Act.

The New Brunswick Provincial Court acquitted the accused and held that Indians could hunt for food at any time on all undeveloped land upon which an ordinary hunter would have the right to enter to hunt during the applicable seasons.

Compare R. v. Perley (1981), 37 N.B.R.(2d) 591; 97 A.P.R. 591.

Civil Rights - Topic 201

Life - The New Brunswick Provincial Court held that there is a paramount right to life or survival, which supersedes both the B.N.A. Act and s. 88 of the Indian Act, rendering most provisions of provincial fish and game legislation inoperative against Indians, if they need to hunt and fish for food - See paragraphs 98 to 103, 134.

Constitutional Law - Topic 6350

Federal jurisdiction - Indians and lands reserved for Indians - General - The New Brunswick Provincial Court held that under s. 91(24) of the B.N.A. Act "Indians" and "lands reserved for Indians" were distinct and that hunting rights come within the ambit of legislation respecting "Indians" and aboriginal title to land and any incidental rights come within the ambit of "lands reserved for Indians" - See paragraph 40.

Evidence - Topic 2259

Special modes of proof - Judicial notice - Historical facts - The New Brunswick Provincial Court held that it could take judicial notice of the facts of history, whether past or contemporaneous - See paragraphs 14 to 15.

Fish and Game - Topic 841

Indian and Eskimo rights - Right to hunt for food - General - The New Brunswick Provincial Court held that Indians had the right to hunt and fish for food at any time in New Brunswick on undeveloped land where people were entitled to hunt and fish during the appropriate seasons - The court held that Indians were bound only by those parts of the Fish and Wildlife Act, R.S.N.B. 1973, c. F-14, which were directed to the protection of human life rather than the protection of game or the regulation of hunting - See paragraphs 134(1), 135 to 137, 140.

Indians, Inuit and Métis - Topic 4402

Treaties and proclamations - What constitutes a treaty - In 1778 the British Government and representatives of the Indians of New Brunswick and part of Nova Scotia made an agreement in which the Indians renounced their support for the American rebels and swore allegiance to the Crown - The New Brunswick Provincial Court held that the agreement constituted a treaty - See paragraphs 108 to 132.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - The New Brunswick Provincial Court held that a treaty need not create rights in Indians, but may merely recognize a preexisting right, in order to have a paramount effect over laws of general application in a province - See paragraphs 65 to 67.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - The New Brunswick Provincial Court held that the proclamation of 1763 was never repeated and has the force of statute, guaranteeing New Brunswick Indians the right to hunt and fish for food at any time on all undeveloped land upon which the general public has the right to hunt in season - See paragraphs 33, 104 to 106, 134(b).

Indians, Inuit and Métis - Topic 4406

Treaties and proclamations - When applicable - The New Brunswick Provincial Court held that the Treaty of 1779 confirmed a preexisting right of Micmac Indians to hunt and fish and could still be relied on by them - See paragraphs 66, 134(c).

Indians, Inuit and Métis - Topic 4406

Treaties and proclamations - When applicable - The New Brunswick Provincial Court held that an agreement in 1778 between the British Government and representatives of New Brunswick and Nova Scotia Indians was a treaty and guaranteed New Brunswick Indians the right to hunt and fish - See paragraphs 108 to 132.

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - Where applicable - The New Brunswick Provincial Court held, following R. v. Paul (1980), 30 N.B.R.(2d) 545; 70 A.P.R. 545 (N.B.C.A.), that the Treaty of 1725 was not applicable to New Brunswick regarding the right of Indians to hunt and fish, but doubted the correctness of the decision - See paragraphs 83 to 97.

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - Where applicable - The New Brunswick Provincial Court held that the Proclamation of 1763 was never repealed and has the force of statute, guaranteeing New Brunswick Indians the right to hunt and fish for food at any time on undeveloped land - See paragraphs 33, 104 to 106, 134(b).

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - The New Brunswick Provincial Court held that an Indian treaty should be construed according to the understanding the Indians had of it as unlettered people and that the language used in a treaty should never be construed to the Indians' prejudice - See paragraphs 90 to 91 - The court further held that in determining the import of a treaty regard ought to be had to its historical context - See paragraphs 1 to 6.

Indians, Inuit and Métis - Topic 6265

Government of Indians - What laws govern - Federal law - Migratory Birds Convention Act - The New Brunswick Provincial Court held that Indians are bound by the Migratory Birds Convention Act - See paragraphs 57, 134(i).

Indians, Inuit and Métis - Topic 6265

Government of Indians - What laws govern - Federal law - The New Brunswick Provincial Court held that under s. 91(24) of the British North America Act the Parliament of Canada may by the Indian Act or other legislation abrogate or otherwise amend aboriginal hunting rights in Canada - See paragraphs 57, 134(j).

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - The New Brunswick Provincial Court held that a treaty need not create rights in Indians, but may merely recognize a preexisting right, in order to have a paramount effect over laws of general application in a province - See paragraphs 65 to 67.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - Indian Act, s. 88 - Effect of - The New Brunswick Provincial Court held that s. 88 of the Indian Act destroys all aboriginal rights to hunt not preserved by either treaty or federal-provincial agreement - See paragraphs 39, 72 to 77.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - The New Brunswick Provincial Court held that Indians had the right to hunt and fish for food at any time in New Brunswick on undeveloped land where people were entitled to hunt and fish during the appropriate seasons - The court held that Indians were bound only by those parts of the Fish and Wildlife Act, R.S.N.B. 1973, c. F-14, which were directed to the protection of human life rather than the protection of game or the regulation of hunting - See paragraphs 134(1), 135 to 137, 140,

Cases Noticed:

Monarch Steamship Co. Ltd. v. Karlshamns Olejefabriker, [1949] A.C. 196, appld. [para. 14].

Read v. Bishop of Lincoln, [1892] A.C. 644, appld. [para. 15].

R. v. White and Bob, 50 D.L.R.(2d) 613, (B.C.C.A.), affd. 52 D.L.R.(2d) 481 (S.C.C.) appld. [paras. 15, 26, 91, 104, 125].

R. v. Isaac (1976), 13 N.S.R.(2d) 460; 9 A.P.R. 460, appld. [para. 15].

R. v. Lady McMaster, [1926] Ex.C.R. 68, appld. [para. 33].

R. v. Kruger and Manuel (1977), 15 N.R. 495; 34 C.C.C. 377, appld. [para. 44].

Cardinal v. Attorney-General of Alberta, [1974] S.C.R. 695, consd. [para. 46].

R. v. Wesley, [1932] 2 W.W.R. 337, consd. [para. 53].

R. v. Paul (1980), 30 N.B.R.(2d) 545; 70 A.P.R. 545; 54 C.C.C.(2d) 506, consd. [paras. 65, 83].

R. v. Frank (1977), 15 N.R. 487; 34 C.C.C.(2d) 209, consd. [para. 68].

R. v. Simon (1958), 43 M.P.R. 101, dist. [para. 83].

R. v. Francis, [1970] 3 C.C.C. 165, dist. [para. 83].

St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46, appld. [para. 105].

Worcester v. Georgia (1832), 8 Law Ed. 512, appld. [para. 91].

Warman v. Francis (1958), 20 D.L.R.(2d) 627, appld. [para. 104].

R. v. Myran, Meeches et al., [1976] 1 W.W.R. 196; 5 N.R. 551, appld. [para. 136].

R. v. Jorden, [1964] 2 C.C.C. 243, appld. [para. 37].

Statutes Noticed:

British North America Act, 1867, sect. 91(24) [para. 39]; sect. 109 [paras. 50, 105].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. l(b) [para. 81].

Fish and Wildlife Act, R.S.N.B. 1973, c. F-14, sect. 33(1), sect. 43(1), sect. 58 [para. 5].

Indian Act, R.S.C. 1970, c. I-6, sect. 88 [para. 39].

Migratory Birds Convention Act, R.S.C. 1970, c. M-12 [para. 57].

Proclamation of 1763, R.S.C. 1970, App. II [para. 32].

Treaty of 1725 [para. 87].

Treaty of 1779 [paras. 65, 134(c)].

Treaty of 1778 [para. 108].

Authors and Works Noticed:

Cameron, Annotation on Indian Lands In Canada, 13 S.C.R. 45, 50 [paras. 34, 106].

Raymond, W.O., The River St. John (2d Ed. 1950) [paras. 13, 93].

Webster, Clarence, Historical Guide to New Brunswick (1944) [paras. 13, 96].

Counsel:

Keith McCormick, for the Crown;

Graydon Nicholas, for the accused.

This case was heard before HARPER, J., of the New Brunswick Provincial Court, Criminal Division, who delivered the following judgment on December 2, 1981: