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2005 No. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR


BETWEEN:


HER MAJESTY THE QUEEN

RESPONDENT

AND:

GEORGE NICHOL and RICHARD BOUZAN
APPELLANTS

NOTICE OF APPEAL


Take Notice that the Appellants intend to appeal and hereby appeal from the conviction entered by Judge Harold Porter at St. John's, 2005.


The offence of which the Appellants were convicted was that they:

i)         Did on or about the 12th day of September, 2004, A.D., at or near Little Bay East, Fortune Bay, Newfoundland an Labrador, in NAFO Sub-Division 3Ps, being Canadian Fishery Waters, while engaged in the groundfish food fishery and fishing under the authority of an Atlantic Recreational Fishing Licence, failed to comply with a condition of that licence to wit: did not tag codfish immediately after harvesting codfish, contrary to Section 22(7) of the Fishery General Regulations, thereby committing an offence punishable under section 78 (a) of the Fisheries Act, R.S., c. F-14, s.l. as amended.

The Appeal is from the conviction registered on October 28, 2005 on the grounds that Learned Provincial Court Judge made the following errors:

i)         He erred in finding that Newfoundland was a colony or province at the time of Confederation being March 31,1949 when, in fact, Newfoundland was a Dominion. Its status as a Dominion was confirmed in 1926 by the Balfour

Declaration;

ii)        He erred in finding that the Terms of Union recognize existing legislation and

jurisprudence of Canada when Term 3 clearly states the Constitution Acts 1867 to 1940 apply to the Province of Newfoundland "as if the Province of Newfoundland had been one of the provinces originally united except in so far as varied by these Terms and except such provisions as are in terms made or by reasonable intendment may be held to be specifically applicable to or only to affect one or more and not all of the provinces originally united."


iii)       He erred in finding that Newfoundland transferred jurisdiction of the Fishery to Canada when Term 22(1) states "In this Term, the expression "Fisheries Laws' means the Act No. 11 of 1936, entitled "An Act for the creation of the Newfoundland Fisheries Board", the Act No. 14 of 1936, entitled "An Act to Prevent the Export of Fish Without Licence", the Act No. 32 of 1936, entitled "An Act to Amend the Newfoundland Fisheries Board Act (No. 11 of 1936)", the Act No. 37 of 1938, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 10 of 1942, entitled "An Act Respecting Permits for the Exportation of Salt Fish", the Act No. 39 of 1943, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 16 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Acts, 193638", and the Act No. 42 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", in so far as they relate to the export marketing of salted fish from Newfoundland to other countries or to other provinces of Canada";

iv)       He erred in finding on entry into Confederation, Newfoundland assumed the same position as if Confederation had been achieved in 1867. The legal relationship between Newfoundland and Labrador and Canada is subject to the Terms of Union. It has no dispute resolution mechanism and no amending formula but for a referendum of the people of the Province which must then be approved by the Parliament of Canada to become law.

v)        He erred in finding that the territory of Newfoundland did not include a three mile territorial sea calculated from proper baselines prior to Confederation in 1949 when all applicable pre-Confederation legislation of the Dominion of Newfoundland stated otherwise, as stated by the Newfoundland Court of Appeal in Reference Re Mineral and other Natural Resources of the Continental Shelf (1983), 145 D.L.R. (3d) 9.

vi)       He erred in finding that there is no headland to headland rule applicable to

Newfoundland territorial waters when a Government of Canada document titled "Statements on Questions Raised by the Newfoundland Delegation During the Negotiations for the Union of Newfoundland with Canada" states otherwise.

The Appellants ask for the following order or other relief:

i)         An order setting aside the convictions registered on August 18, 2005 and quashing the Informations sworn in this matter on September 20, 2004.

DATED at Daniel's Harbour in the Province of Newfoundland and Labrador this ___day of November, 2005.


___________________
T. James Bennett
Solicitor for the Appellants
Whose address for service is:
9 Terra Nova Road
P.O. Box 10
Daniel's Harbour, NL
AOK 2CO

Telephone: (709) 898-2060
Fax: (709) 898-2047



TO:

Supreme Court of Newfoundland and Labrador
P.O. Box 910 Grand Bank, NL
AOE 1WO


Attention: Court Registry


AND TO:


Department of Justice Canada
Box 62, Atlantic Place
812-215 Water Street
St. John's, NL
A1C 6C9


Via Facsimile: (709) 772-8055 Attention: Mark A. Stares