The New Brunswick Provincial Court had acquitted Mr. Lavigne of two charges related to hunting moose without a permit. He had successfully argued that he was Aboriginal and had hunting rights protected by section 35 of the Constitution Act, 1982. The Crown appealed this acquittal, claiming that the trial judge had erred in deciding Mr. Lavigne was an Aboriginal person, that he was a member of the Pabineau First Nation community, and that he was not required to obtain permission to hunt in the community’s territory.

In response to the first two claims, the Court reviewed the evidence that Mr. Lavigne had used to prove that he was Aboriginal. Mr. Lavigne had provided evidence showing that he had Aboriginal ancestry, that he identified as Mi’kmaq, and that he was accepted by the community of Pabineau First Nation. The Court decided that the trial judge was correct in finding that the evidence proved both that Mr. Lavigne was Mi’kmaq and as such Aboriginal for the purposes of the Constitution Act, 1982 and that Mr. Lavigne was accepted by the Pabineau First Nation community.

The Court then considered whether Mr. Lavigne had acted illegally by hunting without the permission of the Pabineau First Nation community. The Court found that Aboriginal rights are communal and do not belong individual members of the community. However, Pabineau First Nation had not imposed restrictions on its members’ Aboriginal right to hunt moose on their territory, so the Court held that the trial judge was correct in holding that Mr. Lavigne could lawfully hunt on the Pabineau First Nation’s territory without the community’s permission. 

The appeal was dismissed. Mr. Lavigne’s acquittal was upheld.

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/2007/2007nbqb171/2007nbqb171.html

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