This motion was heard in the New Brunswick Provincial Court. 

In this motion, the Applicants, Olive Landry and Fabien Huard, requested a stay of proceedings regarding their trials for the offence of having illegally fished for trout outside of the fishing season. This is an offence under both section 106 of the Maritimes Provinces Fishery Regulations and subsection 78(a) of the Fisheries Act. While the Applicants did challenge whether they had been fishing, they argued that, as protected by section 35 of the Constitution Act, 1982, they had an Aboriginal and treaty right to fish as they had. The basis for the stay, they argued, was that questions of Aboriginal and treaty right are better heard before the Federal Court of Canada than the provincial courts.

The Court held that this argument failed for three reasons. First, the Applicants had already twice tried and failed to seek leave to have their case heard before the Federal Court. The Federal Court did not recognize them as Indigenous persons. Second, the Applicants had to have established their status as Indigenous persons before making an Aboriginal and treaty rights claim. They had not done this. Third, the Court noted that a lower court is capable of deciding whether two individuals could claim Indigenous status, but is not able to do so for a group, community, or organization claiming status.

Ultimately, the stay of proceedings was denied, and the question of the Indigenous status of the Applicants was to proceed before the Provincial Court. 

View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2012/2012nbpc18/2012nbpc18.html

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