R v Fowler (J) (1993), 1993 CanLII 15520 (NB PC)

This case was heard in the New Brunswick Provincial Court. 

Mr. Fowler was charged with violating section 41 of the New Brunswick Fish and Wildlife Act by having a firearm in his possession in resort of wildlife during hunting season without a license. 

Mr. Fowler argued that he was exempt from section 41 of the Fish and Wildlife Act because he had a treaty right to hunt under the Treaty of 1725 and that this right was protected by section 35 of the Constitution Act, 1982. Mr. Fowler also claimed that he had Aboriginal rights, but the Court did not focus on this claim.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. Since section 35 only protects the rights of Aboriginal people, for Mr. Fowler to have treaty rights protected by this section, he had to prove that he was Aboriginal for the purposes of section 35. Mr. Fowler argued that he was Aboriginal because he was Indian (specifically, Maliseet). The Court had to decide whether section 35 referred only to people that fell under the definition of Indian that is given in the Indian Act. The federal Indian Act defines Indians as people that are registered or are qualified to register as Indians. Mr. Fowler was not registered under the Indian Act, so according to the definition of Indian given in the Indian Act he was not Indian. 

The Court decided that being registered as an Indian under the Indian Act was not necessary to have protected treaty rights as an Indian person. The Court decided that to have protected treaty rights, Mr. Fowler had to show a substantial connection to the Indigenous group that had signed Treaty of 1725. It held that Mr. Fowler was able to establish a substantial connection by providing a large amount of testimony and documentary evidence about his ancestry. As such, even though Mr. Fowler was not a registered Indian, the Court held that he had hunting rights under the Treaty 1725 which were protected by section 35 and that these rights exempted him from the Fish and Wildlife Act.

Mr. Fowler was found not guilty. 

View the Decision on CanLII: https://www.canlii.org/en/nb/nbpc/doc/1993/1993canlii15520/1993canlii15520.html

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