Paul et al v R, 2007 NBCA 15

This case was heard in the New Brunswick Court of Appeal.

This case was an appeal which was put forward to determine the legal effect of a stay of proceedings in the case of R. v. Sappier (D.M.) et al. (2004), 273 N.B.R. (2d) 93. In that case, the Indigenous defendants were determined to have both an ancestral and treaty right to harvest timber on specified government lands. In this case, an Aboriginal right and a treaty right were both recognized for the Maliseet people of New Brunswick to harvest natural resources for personal use. However, the Court also granted a stay of one year (which was later extended), for the purposes of allowing negotiation between the provincial government and the Maliseet over the implications of the recognition of those rights. This created a problem for the appellants in this case, who argued that they would be able to rely on the defence of harvesting for personal use on the basis of Aboriginal or treaty right recognized in Sappier if the stay had not been granted (they were Maliseet charged with illegally harvesting timber on government land in violation of section 67(1) of the New Brunswick Crown Lands and Forests Act).

The Court found that the purpose of the stay granted in R. v. Sappier “was not meant to deprive every [Indigenous] person in New Brunswick of the right to assert an ancestral or treaty right to harvest timber for personal or domestic use, during the time the stay was in effect.” The Court went on to state that the purpose of a stay in proceedings in such circumstances is twofold: to prevent re-ligating issues already settled before the Court, and to prevent efforts to get around a stay, the idea being to establish a low threshold that eliminates frivolous treaty or Aboriginal rights-based defences that are not going to be realistically pursued should the case proceed. Finally, and most crucially for the appellants, the Court found that the treaty argued by the appellants in this case was a different treaty from that discussed in Sappier, and therefore could not be subject to the stay. For these reasons, the appeal was allowed, the convictions set aside, and a new trial ordered.  

View the Decision on CanLII: https://www.canlii.org/en/nb/nbca/doc/2007/2007nbca15/2007nbca15.html

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