This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division
The appellants in this case were Dwight Bear, Gerald Bear, and Mr. Nicholas. Dwight Bear was charged with violating section 38 of the federal Fisheries Act by willfully obstructing a fisheries officer in the execution of his duty. Gerald Bear and Mr. Nicholas were charged with similar offences. Gerald Bear was also charged with fishing using a gill net in non-tidal waters in violation of section 7(1) of the New Brunswick Fisheries Regulations, and Mr. Nicholas was also charged with a similar offence.
The appellants argued that they had been exercising a treaty right to fish. They argued they had the right to fish anywhere in New Brunswick under the Royal Proclamation of 1763 and a 1725 treaty called the Submission and Agreement of the Delegates of the Eastern Indians. The appellants argued that sections 25 and 35(1) of the Constitution Act, 1982 protect these rights, so they could not be limited by the Fisheries Act or the New Brunswick Fisheries Regulations.
Prior to this case, the Provincial Court had rejected the appellants’ argument and convicted them. In the current case, the appellants appealed the Provincial Court’s decision to the Court of Queen’s Bench. The Court of Queen’s Bench affirmed the Provincial Court’s decision and the reasoning leading up to it.
The Provincial Court’s first main reason for rejecting the appellants’ argument had to do with what constitutionally protected rights the appellants actually had. Section 35(1) of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. The Provincial Court decided that this meant that section 35(1) only covers rights that existed when the Constitution Act, 1982 came into force. The Fisheries Act came into effect before the Constitution Act, 1982 did. The Provincial Court decided that this meant that when the terms of the Fisheries Act conflicted with the appellants’ Aboriginal and treaty rights, the appellant’s Aboriginal and treaty rights were limited by the Act and they had to fish in accordance with the Act. The Provincial Court held that these limited rights were the ones that existed when Constitution Act, 1982 came into force, so it was only these limited rights that were protected by section 35(1). This meant that even if the appellants had Aboriginal and treaty rights that were protected by section 35(1) of the Constitution Act, 1982, they did not have the right to fish in violation of the Fisheries Act. In the current case, the Court of Queen’s Bench upheld this decision.
The appellants also argued that the Provincial Court had erred in finding that section 25 of the Constitution Act, 1982, which enshrines the rights conferred by the Royal Proclamation of 1763, was subordinate to section 1 of the Charter of Rights. In the current case, the Court decided that it was not necessary to consider this issue. It decided that any rights that had been conferred by the Royal Proclamation of 1763 had been limited by the Fisheries Act before the Constitution Act, 1982 came into force, which meant that any rights the appellants may have under section 25 did not include the right to fish in violation of the Fisheries Act.
The Court dismissed the appeal and upheld the conviction of each appellant.