This case was heard in the Nova Scotia Provincial Court. 

Mr. Smith was charged with hunting wildlife during the closed season, hunting without a valid license or permit, and possessing a deer carcass, all of which violated the Nova Scotia Wildlife Act. Mr. Smith admitted to these actions but claimed that he had an Aboriginal right under section 35 of the Constitution Act, 1982 to engage in these activities without a license or permit. 

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It also defines Aboriginal peoples as being Indian, Métis, or Inuit. In this case, Mr. Smith had the onus (responsibility) to prove that he was Aboriginal and a member of an Aboriginal community that enjoyed the right to hunt for food. He tried to do so by arguing that he was Indian for the purposes of the Act because he was Mi’kmaq. Since Mr. Smith was not a status Indian under the Indian Act and was not a member of a recognized Band, he tried to prove he was Indian by providing evidence of his ancestry. 

The Court accepted that there was an Aboriginal right to hunt for food in Nova Scotia. However, the Court found that Mr. Smith could not provide enough evidence to establish that he belonged to an Aboriginal community that enjoyed this right. The Court also found that even if Mr. Smith had established that he belonged to such a community, there was no evidence that the community would be entitled to exercise its right to hunt in the area where the defendant was hunting. 

Mr. Smith was found guilty. 

View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2012/2012nspc84/2012nspc84.html

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