R v Hopper, 2004 NBPC 7 (CanLII)
This case was heard in the New Brunswick Provincial Court.
Mr. Hopper was charged with violating the New Brunswick Fish and Wildlife Act by possessing the carcass of a deer. Mr. Hopper argued that he was exempt from the Act because he had both Aboriginal and treaty rights to hunt that 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 the Aboriginal people of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. To prove he had an Aboriginal right to hunt, Mr. Hopper needed to prove that he belonged to a distinctive Indigenous group that had hunted in the area where he had been found. The Court decided that he could not prove his ancestors had lived as a distinctive people with their own customs, traditions, or way of life. Because of this, the Court decided that Mr. Hopper could not prove that he qualified for Aboriginal rights under the Constitution Act, 1982.
Mr. Hopper also argued that he had a treaty right to hunt because he was a direct descendent of Grand Chief Madowkowando, who signed a treaty with the Crown in 1693. The Court held that Mr. Hopper did not have rights under this treaty. The Court decided that being the genealogical descendant of an historic treaty signatory is not enough to establish contemporary treaty rights. The Court found that treaty rights are held communally by identifiable communities and are not determined by genealogy alone.
The Court rejected Mr. Hopper’s defence. He was found guilty.
View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2004/2004nbpc7/2004nbpc7.html
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