This case was heard in the New Brunswick Provincial Court.
The three accused were found in possession of two Atlantic salmon that did not have tags attached to them, which violated section 57(1) of the New Brunswick Fish and Wildlife Act. All three accused were Mi’kmaq.
The accused argued that they could not be charged under the Fish and Wildlife Act because they had a treaty right to hunt and fish under the Treaty of 22 September 1779. They argued that because they had rights under this treaty, section 88 of the Indian Act exempted them from the Fish and Wildlife Act. Section 88 of the Indian Act states that Indians are governed by all provincial laws in their province, unless a treaty and/or Act of Parliament had nullified it (made that law invalid for them). The Court had to decide whether the Fish and Wildlife Act had been nullified for the accused by the Treaty of September 1779.
The Court first had to decide whether the Treaty of 1779 could nullify the Fish and Wildlife Act. The Court found that the Treaty of 1779 was a valid treaty, which meant that under section 88 of the Indian Act the Fish and Wildlife Act was inapplicable to certain people.
The Court then had to decide whether the Fish and Wildlife Act had been nullified for the accused specifically. In R v Paul, 1980 CanLII 2819 (NB CA) the Treaty of 1779 was interpreted as recognizing and affirming that the signatories to the treaty and their descendants (“Indians having the right to live on the reserves”) had the right to hunt and fish on Mi’kmaw reserves between Cape Tourmentine and Bay DeChaleurs without interference from the Crown. This meant that the Act was null for people who were fishing on a reserve in this area and who had the right to live on that reserve.
The defendants were fishing in the Tabusintac Indian Reserve. This reserve is in the area covered by the treaty, so if the accused could prove they had the right to live on the reserve they would successfully prove that the Fish and Wildlife Act did not apply to them and that they must be acquitted. The defendants went about proving they had the right to live on the reserve by providing testimony from two witnesses that were knowledgeable in matters of Indigenous genealogy and tradition. The witnesses provided evidence that the defendants were born to Mi’kmaw parents in the territory and were accepted as Mi’kmaq in Mi’kmaw communities. Based on this evidence, the Court decided the accused successfully proved that they were Mi’kmaq and had the right to live on the Tabusintac Indian Reserve.
The Fish and Wildlife Act was found to be null for the defendants. They were found not guilty.