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HUNTING, FISHING AND LOGGING RIGHTS - Hunting, fishing or trapping - Purpose - For sale - Offences and penalties - Constitutional issues - Recognition of existing aboriginal and treaty rights

Thursday, September 21, 2017 @ 8:42 AM  

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Appeal by the Crown from a decision staying charges against Reynolds under the Fish and Wildlife Act. Reynolds was an Aboriginal person entitled to hunt and trade in moose. In 2012, he killed a moose and traded it to Knox for a car. Knox was not an Aboriginal and did not have a transfer permit authorizing his possession of the moose meat. He pleaded guilty to unlawful trading and possessing moose meat. Reynolds was charged as an accessory to the offences Knox committed. Shortly before his trial, Reynolds applied for a stay based on a 2003 decision by the Department of Natural Resources providing that no transfer permits would issue for moose meat harvested by Aboriginal hunters. He claimed that this decision constituted an end-run around his treaty right to trade, such that the charges against him amounted to an abuse of process. The Crown argued that the Chiefs of the various New Brunswick First Nations had, in 2003, agreed to forbear the exercise of their right to trade in moose with non-Aboriginals. The Crown also asserted the valid conservation objective of the 2003 decision. The Provincial Court judge considered the entirety of the circumstances surrounding Reynolds’ prosecution and concluded that its continuation would amount to an abuse of process. He found that the Crown could not justify the infringement of Reynolds’ treaty right, noting that the 2003 decision effectively denied Aboriginals the ability to trade in moose, while leaving the non-Aboriginal moose hunt unchanged. The Crown’s appeal to the Summary Conviction Appeal Court was dismissed, but on different grounds. The appeal judge held that the Provincial Court was not the proper forum to determine the complex issues raised in relation to Reynolds’ treaty rights.

HELD: Appeal dismissed. The positions advanced by the Crown to overcome Reynolds’ treaty rights were not triable issues. The Crown failed to prove the existence of the forbearance agreement it asserted in claiming that First Nations agreed not to trade with Non-Aboriginals in moose subsequent to 2003. There was no authority for the proposition that the Chiefs could alter communal treaty rights and bind their bands as the Crown claimed they had. The fact that the 2003 decision altered Aboriginal treaty rights while not impacting the hunting rights of non-Aboriginals meant that it was unreasonable. The application of the Fish and Wildlife Act to Reynolds’ circumstances constituted an adverse and unreasonable interference with his treaty right to hunt and trade as an Aboriginal.

R. v. Reynolds, [2017] N.B.J. No. 214, New Brunswick Court of Appeal, J.C.M. Richard, B.V. Green and R.T. French JJ.A., August 31, 2017. Digest No. TLD-Sept182017009