In R. v. Paul, a New Brunswick Provincial Court (Woodstock) determined that an aboriginal right to hunt does not necessarily include the right to build a private hunting cabin on Crown lands.
I accept that the Defendant, as a Maliseet, had a aboriginal right to hunt and that the establishment of shelters are reasonably incidental to that right. However the cases are clear that this is a collective right and the evidence here points to the fact that Mr. Paul constructed the camp himself in his favourite hunting area, with his personal resources and that it was used by his family, their friends and other persons from St. Mary’s First Nation who were invited and taken there by Mr. Paul. There is no evidence of a communal use of the camp. There was a suggestion that there was a guest book which could establish that others used the camp, however such evidence was not lead by the Defendant. The evidence here is remarkably similar to that in both Baker and Landry in that the camp was constructed by the Defendant, primarily used by him, his family and guests and was in close proximity to both a secondary residence at Davidson Lake, some 42 kilometers away, and to his primary residence on St. Mary’s First Nation, some 70 kilometers further away. Accordingly I find that the evidence does not establish that the construction of his camp was reasonably incidental to his aboriginal right to hunt; rather he constructed a camp on his favourite hunting area in which he could have, and previously did, hunt without the aid of a shelter.
Turtle Talk 