This case was heard in the New Brunswick Court of Appeal, and it followed the decisions in R v Richard Hopper, 2004 NBPC 7, and R c Hopper, 2005 NBBR 399. 

The appellant, Richard Hopper, had been charged with unlawful possession of a deer carcass contrary to section 58 of the New Brunswick Fish and Wildlife Act. Mr. Hopper was a direct descendant of one of the signatories to the Treaty of 1693 with the Tribes of Massachusetts Bay and Rivers Area, and in his defence he argued that, as a direct descendant of a treaty signatory, he had treaty rights that authorized activities that would otherwise be prohibited by the Fish and Wildlife Act. Mr. Hopper was found guilty at trial, and his conviction was upheld by the New Brunswick Court of Queen's Bench.

In this appeal, the issues before the Court of Appeal were boiled down to whether the appellant was Indigenous for the purposes of section 35 of the Constitution Act, 1982, and, if so, whether the treaty that his ancestor had signed applied to the area where Mr. Hopper was caught. On the first point, the Court found that “descendancy” alone was insufficient to establish his claim, and it held that Mr. Hopper could not establish a connection to a contemporary Indigenous community that had a treaty right to hunt as he had done. On the second issue, the Court found that the treaty Mr. Hopper’s ancestor signed did not apply to the territory contained in modern-day New Brunswick and so was inapplicable. For these reasons, the Court dismissed the appeal. 

View the Decision on CanLII: https://www.canlii.org/en/nb/nbca/doc/2008/2008nbca42/2008nbca42.html

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