R v Vienneau, 2014 NBQB 92 (CanLII)
This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division.
Yvon and Michel Vienneau were charged with hunting moose during the closed season in violation of section 32(1)(a) of the New Brunswick Fish and Wildlife Act. In response, the Vienneaus argued that they had an Aboriginal right to hunt moose that was protected by section 35 of the Constitution Act, 1982. Prior to this case, the Provincial Court had decided that the Vienneaus could not prove that they had Aboriginal rights under section 35 and convicted them.
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 people as being Indian, Métis, or Inuit. The Vienneaus argued that they were Aboriginal because they were Indian (specifically, Mi’kmaq). In the current case, the Vienneaus argued that the Provincial Court had erred in deciding that they could not prove that they were Aboriginal for the purposes of section 35.
To prove that they were Indian for the purpose of section 35, the Vienneaus needed to prove three main things as set out in the test developed by the Supreme Court of Canada in R v Powley 2003 SCC 43 (CanLII). The Vienneaus needed to prove that they were of Indian ancestry, that they identified as Indian, and that they were accepted by a modern Indian community. The Provincial Court decided that the Vienneaus could prove that they were of Indian descent because they had Indigenous ancestors. However, the Provincial Court found that the Vienneaus could not demonstrate community acceptance, which meant that they could not prove that they were Indians for the purposes of section 35.
The main issue in this appeal was whether the Provincial Court had erred in deciding that the Vienneaus could not prove community acceptance. The Provincial Court had decided that to prove community acceptance, the Vienneaus had to prove that they were accepted by a specific community, specifically the Pabineau Falls Indian reserve. The Vienneaus argued that this was too strict. They argued that they should only have to prove acceptance in a broader Indigenous community whose members may live on or off the reserve. In this case, the Court decided that the Provincial Court had not erred in deciding that the Vienneaus had to prove they were accepted by a specific community. The Provincial Court had also decided that the Vienneaus had to prove that they actively participated in a specific Indigenous community. The Vienneaus provided evidence that they were members of the New Brunswick Aboriginal Peoples Council, that they practiced such activities as hunting and fishing, and that they attended powwows. The Provincial Court decided that this evidence did not prove that the Vienneaus participated in an Indigenous community. In the current case, the Court decided that the Provincial Court had not erred in its decision.
The appeal was dismissed.
This decision was appealed in Vienneau et al v R, 2017 NBCA 20 (CanLII).
View the Decision on CanLII: www.canlii.org/en/nb/nbqb/doc/2014/2014nbqb92/2014nbqb92.html
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