This case was heard in the New Brunswick Provincial Court

The defendant was found hunting at night with the assistance of a light in violation of section 33(1)(b) of the New Brunswick Fish and Wildlife Act. He had been hunting off-reserve.

Mr. McCoy was Maliseet. He argued that he was exempted from section 33(1)(b) of the Fish and Wildlife Act because he had a treaty right to hunt under the Treaty of 1725 and the Treaty of 1726.

The Court had to decide three things. It had to decide whether Mr. McCoy could prove that the Treaty of 1725 and 1726 were valid treaties and whether Mr. McCoy had rights under these treaties. The Court also had to decide whether Mr. McCoy could prove that these treaties gave him the right to hunt at night with a light. Finally, the Court had to decide if the right to hunt at night with a light applied to hunting off-reserve.

The Court held that Mr. McCoy was covered by the Treaty of 1725 and the Treaty of 1726, which were found to be valid treaties, and which affirmed his right to hunt. The Court also found that the right to hunt included the right to hunt at night. The Crown had argued that night hunting was inherently dangerous and should not be allowed. However, the Court held that since Mr. McCoy had the treaty right to hunt, he was exempt from all the provisions of any provincial Game Act of general application (in this case, the Fish and Wildlife Act), so if the Crown wanted to challenge the way he was hunting, it had to do so under the federal Criminal Code. 

Further, the Court held that Mr. McCoy’s treaty right to hunt was not limited to hunting on reserve for three main reasons. It would be unconscionable to hold that he could only hunt on reserve. Reserves were not contemplated by the parties to the Treaties of 1725 and 1726 because reserves did not exist when the treaties were signed. It would also be impractical and dangerous to limit hunting to reserves because some reserves are in densely populated areas where hunting is impossible or very dangerous. Finally, it would make the right to hunt nearly impossible to exercise. This would in practice extinguish this treaty right, which would violate the fundamental principles of justice.

Mr. McCoy was found not guilty. 

View the Decision on CanLII: https://www.canlii.org/en/nb/nbpc/doc/1991/1991canlii12196/1991canlii12196.html

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