Queen v. Drew et al, 2003 NLSCTD 105 (CanLII)

This case was heard in the Supreme Court of Newfoundland and Labrador, Trial Division. 

The Crown accused the defendants of being in wrongful possession of Crown lands. It argued that the defendants did not have Aboriginal or treaty rights to fish, hunt, or trap on the land. 

The defendants in this case were Mi'kmaq and were members of the Miapukek Band. They had hunting cabins located on the Bay du Nord Wilderness Reserve in the area of the Bay d'Espoir on the south coast of the Island of Newfoundland. They hunted, fished, and trapped in this area. The defendants argued that they had Aboriginal and treaty rights to have cabins, hunt, and fish in the area. They argued they had Aboriginal rights because their Mi’kmaw ancestors had been present in that area before European contact. They also argued that these rights were protected by multiple treaties the Mi’kmaq had entered into with the British in the eighteenth century.  

The Court decided that the defendants were in wrongful possession of Crown lands. The Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. In this case, the Court found that the defendants did not have Aboriginal or treaty rights to hunt, fish, or trap on the land. The Court found that the defendants did not have treaty rights to hunt, fish, and trap in the area because they could not prove that any of the treaties they referenced included this right. 

The Court also found that the defendants did not have an Aboriginal right. In R v Van der Peet, 1996 CanLII 216 (SCC), the court laid out a test for deciding whether an individual has an Aboriginal right to do something. For a person to have an Aboriginal right to practice an activity, that activity must have been practiced before contact with Europeans and must have been integral to the distinctive culture of the Indigenous group to which the individual belongs. The Court decided that the defendants could not prove that their ancestors had hunted, fished, and trapped in the area they had been in prior to European contact, so these activities were not protected Aboriginal rights.

The defendants were found guilty and were ordered to remove their cabins.

This decision was later appealed in Drew v Newfoundland and Labrador (Minister of Government Services and Lands), 2006 NLCA 53 (CanLII).

View the Decision on CanLII: https://www.canlii.org/en/nl/nlsctd/doc/2003/2003nlsctd105/2003nlsctd105.html

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