This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division.

The appellants in this case were Mi’kmaq. Mr. Augustine was a member of the Red Bank Indian Reserve. The others were members of the Eel Ground Indian Reserve. 

The appellants were fishing on their respective reserve lands when they were charged with violating regulations that had been made been made under the federal Fisheries Act. Mr. Barnaby, Mr. Ward, Mr. Patles, and Mr. Augustine were charged with illegally fishing with a net in violation of section 13(6) of the New Brunswick Fishing Regulations. Mr. McKay was charged with illegal fishing other than with an artificial fly in violation of section 18(21)(a) of the New Brunswick Fishing Regulations. 

Prior to this case, the trial judge had found that federal legislation had authority over treaty and Aboriginal rights. The trial judge found that because of this, treaty and Aboriginal rights offered the accused no protection from fishing in violation of the regulations that had been made under the federal Fisheries Act. 

In this case, the Court of Queen’s Bench overturned the trial judge’s decision. The Court decided that the issue was not whether federal legislation overruled treaty and Aboriginal rights. Rather, it decided that the real issue was how the provisions of two federal statutes, the Fisheries Act and the Indian Act, could be reconciled. 

Section 81(1)(o) of the Indian Act states that Band Councils can make bylaws for, among other things, the management of fish on reserve. The appellants argued that they were fishing according to the bylaws made by their respective Band Councils. The Court accepted that the Band bylaws dealt with the management of fish, so they were valid, and as such had the force of law under the Indian Act. The appellants were fishing in accordance with these bylaws, so according to the Indian Act they were not breaking the law. However, according to the Fisheries Act they were breaking the law. 

The Court had to decide which legislative provision should prevail. The Court applied the rule of law that in cases of conflict between provisions, the more special (specific to a particular issue) provision should prevail over the more general one. The Band bylaws were very specific. They specifically stated such things as where fishing was allowed, what methods could be used, what equipment could be set up and for how long, what kinds of fish could be killed, and what size fish could be caught. In contrast, the Fisheries Act was an act of general application. It dealt with all Indigenous peoples, whether on reserve or otherwise. Because of this, the Court found that the bylaws were more special than the Fisheries Act, so the bylaws prevailed.

The appellants were found not guilty.