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

John Peter Francis and Frank Augustine were convicted in the New Brunswick Provincial Court for possessing undersized lobster, which was an offence under subsection 57(2) of the Atlantic Fishery Regulations. They then appealed that conviction in the New Brunswick Court of Queen's Bench.

The Appellants were Mi'kmaq, and they argued that they had Aboriginal or treaty rights to fish for lobster, and that those rights could not be limited by the relevant restrictions in the Atlantic Fishery Regulatons.

The Court of Queen's Bench found that the evidence that the Appellants had put before the Provincial Court supported their argument that they had an Aboriginal right to fish for lobster, and it found that the restrictions imposed by the Atlantic Fishery Regulations did infringe that right. However, the Court also found that the infringement was justified, because preventing the fishing of undersized lobster was necessary to conserve the lobster resource, and the Supreme Court of Canada has stated that conservation concerns can justify the infringement of Aboriginal rights.

For these reasons, the Court dismissed the appeal.

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/1996/1996canlii12018/1996canlii12018.html

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