R v Tomah (E) et al (1999), 1999 CanLII 32995 (NB QB)

This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division. 

The appellants were Maliseet. They were members of St. Mary’s Maliseet Nation and lived on the St. Mary’s reserve in Fredericton, New Brunswick. They were convicted of unlawfully fishing with a net in the waters of the Miramichi River in violation of the federal Fisheries Act. In response, the appellants argued that they had a treaty right to fish the Miramichi River under the Treaty of 1725. 

Prior to this case, the trial judge had held that the Treaty of 1725 only gave the appellants the right to fish in areas that they could prove their ancestors historically occupied. The trial judge decided that the appellants could not prove that the Maliseet historically occupied the Miramichi River, so the judge rejected the argument that they had a treaty right to fish there and convicted them.

In this case, the appellants appealed the trial judge’s decision. The Court of Queen’s Bench upheld the trial judge’s decision. The Court held that the appellants had the onus (responsibility) of proving that they had a treaty right to fish and that this right was infringed by the Fisheries Act. The Court held that even if the appellants had treaty rights, these rights could only be exercised over territory that they could establish the Maliseet historically occupied. The Court decided that the appellants could not provide enough evidence to prove that the Maliseet had historically occupied the Miramichi River. Because of this, the Court rejected the argument that the appellants had a treaty right to fish there. 

The Court upheld the appellants’ conviction. 

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/1999/1999canlii32995/1999canlii32995.html

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