R v Paul, 1998 CanLII 12246 (NB CA)

This case was heard in the New Brunswick Court of Appeal. It followed the decisions in R v Paul, 1996 CanLII 12436 (NB PC), and R v Paul (TP), 1997 CanLII 17799 (NB QB).

At trial, the respondent Thomas Peter Paul had been acquitted of the charge of harvesting timber from government land in violation of section 67 of the New Brunswick Crown Lands and Forests Act. Mr. Paul argued that he had a treaty right to harvest and sell timber under the Treaty of 1725 (sometimes called Drummer’s Treaty or the Treaty of Boston), the Treaty of Peace with the Eastern Mick-Mack Tribes of 1752, and a number of promises that had been made surrounding these treaties. Mr. Paul argued that this treaty right was protected by section 35 of the Constitution Act, 1982 and excepted him from the terms of the Crown Lands and Forests Act. The New Brunswick Provincial Court had accepted Mr. Paul’s argument and acquitted him. The Crown had appealed this decision to the New Brunswick Court of Queen’s Bench, which upheld Mr. Paul’s acquittal. 

In the current case, the Crown again tried to appeal Mr. Paul’s acquittal. The Crown’s appeal was successful. The Court found that Court of Queen’s Bench had relied upon its own research in making its decision when it should have only used the evidence that was raised at trial. Also, the Court found that the evidence had not established that Mr. Paul was exempted from the Act by a treaty right because he had specifically harvested timber for the purpose of selling it. The Court decided that the two lower courts had incorrectly interpreted the treaties and that they did not grant Mr. Paul the right to harvest trees commercially. Finally, the Court considered whether Mr. Paul may have Aboriginal rights under the Constitution Act, 1982 that would exempt him from the Crown Lands and Forests Act. The court had decided in R v Van der Peet, 1996 CanLII 216 (SCC), that for someone to have an Aboriginal right to practice an activity, that activity must have been integral to the distinctive culture of the relevant Indigenous group at the relevant moment in history (for First Nations groups, before contact with Europeans). The Court decided that Mr. Paul could not prove that selling timber was integral to distinctive Mi’kmaw culture before contact. 

The Court allowed the appeal. It convicted Mr. Paul and sent the matter back to the provincial court for sentencing.

View the Decision on CanLII: https://www.canlii.org/en/nb/nbca/doc/1998/1998canlii12246/1998canlii12246.html

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