This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division, and was an appeal of R v Daigle, 2003 NBPC 4 (CanLII).

At trial, Mr. Daigle had been found guilty of violating section 23(1.1)(b) of Regulation 82-103 of the New Brunswick Fish and Wildlife Act. In response, Mr. Daigle argued that he was exempt from these regulations because he had Aboriginal and treaty rights to fish which were protected by section 35 of the Constitution Act, 1982.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. For Mr. Daigle to prove that he had protected Aboriginal and treaty rights, he had to prove that he was Aboriginal for the purposes of section 35. When Mr. Daigle’s case was heard before the Provincial Court, he had argued that he was Aboriginal for the purposes of section 35 because he was Métis. The Provincial Court had decided that Mr. Daigle could not show enough evidence to prove that he was Métis for the purposes of section 35. 

In the current case, Mr. Daigle changed his claim that he had rights under section 35 of the Constitution Act, 1982 because he was Métis to claiming that he was Aboriginal more generally. His claim that he was an Aboriginal person also failed. Mr. Daigle’s closest full-blooded Aboriginal relative was ten generations removed, and the Court held that this was not enough to establish that he was Aboriginal. The Court also upheld the Provincial Court’s decision that even if the regulations infringed any rights under section 35 of the Constitution Act, 1982, this infringement would be justified because of its purpose of conserving the trout population. 

The appeal was dismissed.

View the Decision on CanLII: www.canlii.org/en/nb/nbqb/doc/2004/2004nbqb79/2004nbqb79.html

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