This case is the first post Marshall decision (digested herein) involving aboriginal fishing for lobster by members of the Burnt Church First Nation in Miramichi Bay. After the release of the Marshall decision, the accused was charged with illegal fishing for lobster in Miramichi Bay.
After a trial upon an agreed state of facts, the court ruled as follows:
1) With some reluctance, it accepted an agreed statement of facts to the effect that the Burnt Church First Nation had an aboriginal right to fish for food and ceremonial purposes;
2) The accused was not exercising his right to fish for food and ceremonial purposes because the fishery he was participation in was for commercial purposes. Accordingly, he was guilty of illegal fishing; and
3) No evidence was led to lay a foundation for a defence based upon Marshal treaty rights.