Paul v The Queen, 2002 NBQB 19

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

At trial, the appellants were found guilty of possessing timber harvested from government-owned land in contravention of the Crown Lands and Forest Act of New Brunswick. They had unsuccessfully argued that as Indigenous individuals—one of the Maliseet First Nation, the rest Mi’kmaq—they had a treaty right protected under section 35(1) of the Constitution Act 1982, which exempted them from the provisions of the  Act. For the Mi’kmaw appellants, the trial court deemed that the relevant treaties (those of 1760-1761), precluded harvesting of a commercial nature, which the trial court determined the harvesting in question had been. The Maliseet appellant was convicted on the basis that his treaty right did not extend to the area from which the timber had been harvested.

On appeal, the issue before the Court was whether the trial court was incorrect in concluding that the appellants did not have treaty rights which would exempt them from the legislation under which they were charged. The Court of Queen's Bench ultimately concluded that the trial court had not erred, and the appeal was dismissed. 

The reasons for the dismissal were as follows: first, the Court held that the appellants had failed to present evidence to suggest their harvesting was non-commercial, making that conclusion by the trial judge not unreasonable. Second, the Mi’kmaw appellants argued that commercial use was acceptable under the treaties, relying on the wording of “trade” and “lawful occasions” clauses: the Court rejected the "trade" clauses argument on the the basis that it failed the legal test established in R. v. Bernard, 2001 NSSC 19, which asks whether the parties to the treaty have reasonably contemplated the use in question and whether the use can be regarded as a logical evolution of the treaty right in its historical context. The Court rejected the "lawful occasions" clause argument on account of the decision in R. v. Paul (T.P.)(1998), 196 N.B.R. (2d) 292, which set out that such clauses did not cover commercial harvesting. Thirdly and finally, the Court found that regardless of the area covered under the Maliseet treaty, the trial court had not erred in finding against the Maliseet appellant, as his application of the treaty right had been commercial in nature and the Maliseet treaty (specifically the treaty of 1725), was also deemed to not protect commercial harvesting. 

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/2002/2002nbqb19/2002nbqb19.html

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