Supreme Court of Canada –  2 S.C.R. 220
After their fishing rights were confirmed in the Marshall decisions, the Mi’kmaq tried to have their right to harvest lumber for commercial purposes recognized as well. The Supreme Court, however opened to the evolution of trading rights, did not accept their argument.
Commercial forest harvesting was not part of the Mi’kmaq’ traditional activities when the treaties were concluded. It started many years later. The evidence is not sufficient to prove the existence of a title where lumber had been gathered (unanimous decision).
R. v. Marshall
Between: the Crown of Nova Scotia
And: Stephen Frederick Marshall and others
Interveners: Canada, Ontario, Quebec, New Brunswick, British Columbia, Alberta, Newfoundland and Labrador, Forest Products Association of Nova Scotia, Keptin John Joe Sark and Keptin Frank Nevin (of the Mi’kmaq Grand Council), Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Congress of Aboriginal Peoples, Assembly of First Nations and Songhees Indian Band, Malahat First Nation, T’Sou‑ke First Nation, Snaw‑naw‑as (Nanoose) First Nation and Beecher Bay Indian Band (collectively the Te’mexw Nations)
R. v. Bernard
Between: the Crown of New Brunswick
And: Joshua Bernard
Interveners: Canada, Ontario, Quebec, Nova Scotia, British Columbia, Alberta, Newfoundland and Labrador, Union of New Brunswick Indians, New Brunswick Forest Products Association, Keptin John Joe Sark and Keptin Frank Nevin (of the Mi’kmaq Grand Council), Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Congress of Aboriginal Peoples, Assembly of First Nations and Songhees Indian Band, Malahat First Nation, T’Sou‑ke First Nation, Snaw‑naw‑as (Nanoose) First Nation and Beecher Bay Indian Band (collectively the Te’mexw Nations)
This appeal dealt with two cases involving similar facts. Both cases concerned Mi’kmaq Indians accused of logging timber unlawfully on Crown lands in Nova Scotia and New Brunswick.
In Marshall, from November 1998 to March 1999, a group of 35 Mi’kmaq Indians were accused of cutting down trees in Nova Scotia without proper authorization, contrary to sect. 29 of the Crown Lands Act.
The Bernard case involved a Mi’kmaq Indian from New Brunswick caught with 23 logs of spruce trees taken from Crown land contrary to provincial legislation (sect. 67 (1) (c) of the Crown Lands and Forest Act).
The Mi’kmaq: The “truckhouse clause” contained in the 1760-61 treaties granted them a treaty right to gather and trade any natural resources to ensure their survival. The logging of timber is the logical evolution of this trading practice. Also, they claimed an Aboriginal title over the Crown lands on which the logging occurred.
The Crown: The rights conferred by those treaties did not include the right to log timber commercially since it was not a practice that existed at the time of the conclusion of the treaty.
Nova Scotia Provincial Court (2001): Conviction verdict.
Nova Scotia Supreme Court (2002): The conviction is upheld.
Nova Scotia Court of Appeal (2003): The decision is reversed and the accused is acquitted.
New Brunswick Provincial Court (2000): Conviction verdict.
New Brunswick Court of Queen’s Bench (Trial Division) (2001): The conviction is upheld.
New Brunswick Court of Appeal (2003): The decision is reversed and the accused is acquitted.
McLachlin, Major, Bastarache, LeBel, Fish, Abella, Charron
The treaties of 1760‑61 did not entitle the Mi’kmaq to log contrary to the Crown Lands Act of Nova Scotia or the Crown Lands and Forest Act of New Brunswick.
Both treaties contained a “truckhouse clause” authorizing the Mi’kmaq to trade only with the British Crown. Its objective was to maintain the Mi’kmaq’s traditional trading activities. Since the wording of the clause only pertains to trade and not to harvesting, one must construct it in a liberal manner and understand it as the Mi’kmaq’s right to continue their traditional fishing and hunting activities for food. Both fish and game were customarily traded at the time of the treaties’ conclusion. As for timber, the evidence presented at trial showed that it was traded marginally by the Mi’kmaq since there were no logging activities on a commercial scale undertaken by the Mi’kmaq at that time. Forest harvesting developed after the arrival of Europeans in the Maritimes. Therefore, the Mi’kmaq cannot claim it as a treaty right.
As for the Aboriginal title claim, it can be made by an Aboriginal group on lands that were exclusively occupied by the group’s ancestors when they first came into contact with Europeans, that were never ceded to the Crown and that were exclusively occupied by the same group from the time of the British Sovereignty to this day. To determine the “exclusive occupation,” the courts must take into account both Aboriginal and European perspectives (use of oral evidence is permitted) and analyze the range of Aboriginal rights that could be affirmed. It is understood as the intention and the capacity of an Aboriginal group to retain exclusive control over a portion of land. If occasional trespass by other groups was tolerated, it does not negate the title. Also, shared exclusivity is not an obstacle to the establishment of an Aboriginal title, but can lead to a joint title shared by two or more Aboriginal groups. The degree of occupation needed to prove the Aboriginal title can vary according to the nature of the lands concerned and how they were normally used.
In this case, the Mi’kmaq are considered semi-nomadic peoples: they moved with the seasons but always in the same general area. They probably had an Aboriginal title to the lands nearest to their campsites. But there was no evidence that the Mi’kmaq ever established themselves on the Crown lands used today as cutting sites, where the illegal logging occurred. The claim of an Aboriginal title was rejected.
Lebel and Fish were in agreement with C.J. McLachlin’s ultimate conclusion, but disagreed on some issues.
In 2005, just after the ruling, First Nations leaders expressed their disappointment with the Supreme Court’s decision. Their main criticism concerned the criteria used by the Court to evaluate the burden of proof, which they felt were impossible for them to meet. Aboriginal groups often lack financial and material resources to present evidence, as their claims are rooted in a time some 250 years ago. If the Mi’kmaq’s claim had been recognized, it would have helped their economic development and improved their living conditions by putting an end to their dependence on aid from governments (CBC, 2005).
In Quebec, the Regional Chief of the Assembly of First Nations (AFN), Ghislain Picard, called the Supreme Court’s ruling a “definite setback” for Aboriginal people across the country. He was also concerned with the negative effects the ruling could have on the negotiation process undertaken by the federal government and provincial governments with First Nations (Radio-Canada, 2005c). However, he hoped that the pending trials relating to Aboriginal rights and titles would be settled more in their favour (Radio-Canada, 2005a).
The federal Justice Department stated that the ruling would not impinge on the conducting of ongoing negotiations between the government and First Nations. The federal government formally recognized that the Maritimes First Nations never surrendered their rights to the land and its resources with the Peace and Friendship Treaties of 1760-61.
At the time of the hearing, significant concerns were also voiced by the Atlantic forestry industry since the private companies leased the provinces’ Crown lands. If the Court had ruled in the Mi’kmaq’s favour, they said the forestry industry could have lost millions of dollars. Thousands of workers would have been at risk of losing their jobs (CBC 2005).
After the decision was made public, the government of New Brunswick and the government of Nova Scotia both maintained that they were still committed to including Aboriginal people in their logging industries. In addition, they claimed that the outcome of the decision would not affect the negotiations with Aboriginal communities. In recent years, they had collaborated with First Nations to allow their communities to partake in the forest industry. In New Brunswick, the Department of Natural Resources had reached agreements with the province’s fifteen First Nations concerning the harvesting and sale of timber. It had also assisted these communities by creating employment (about 300 new jobs for First Nations’ members) and skills development programs in that field of activity (Department of Natural Resources, 2007: 67). A trust was also established to distribute among these First Nations the royalties received from mills that purchased the timber harvested by them (Id.: 68).
In 2007, the Mi’kmaq of Nova Scotia, the government of Nova Scotia and the government of Canada concluded a Framework Agreement for the province’s First Nations, meaning that the parties agreed to enter into a negotiation process, rather than litigation, to address the Mi’kmaq’s treaty and Aboriginal rights and title, in order to find a fair and equitable solution for all of them. Today, the parties are trying to conclude an Agreement-in-Principle which would settle issues pertaining to governance, game and fish, natural resources and land management (INAC, 2009).
R. v. Morris,  2 S.C.R. 915
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R 388
R. v. Sappier; R. v. Gray,  2 R.C.S 686
Canadian Broadcasting Corporation. 2005. Logging fight not over, native leaders say. http://web.archive.org/web/20050722001742/http://www.cbc.ca/story/canada/national/2005/07/20/logging-aboriginal050720.html. Consulted December 16, 2009.
Department of Natural Resources of New Brunswick. 2007. Annual Report 2006-2007. Government of New Brunswick: Fredericton. On-line. http://www.gnb.ca/0078/publications/ AnnualReport06-07-ef.pdf#page=73. Consulted December 16, 2009.
Government of Canada, Government of Nova Scotia and Mi’kmaq of Nova Scotia. 2007. Framework Agreement for the Made-in-Nova Scotia Process. Government of Canada, Government of Nova Scotia and Mi’kmaq of Nova Scotia: Merbertou. On-line. http://www.ainc-inac.gc.ca/al/ldc/ccl/agr/nsf/nsfa-eng.asp. Consulted December 16, 2009.
Indian and Northern Affairs Canada. 2009. Fact Sheet – Progress Report on Aboriginal and Treaty Rights Negotiations in the Maritimes and the Gaspé. On-line. http://www.ainc-inac.gc.ca/al/hts/tng/ecn/fs-eng.asp. Consulted December 16, 2009.
Mi’kmaq Rights Initiative. 2009. Negotiations. On-line. http://www.mikmaqrights.com/ negotiations.php. Consulted December 19, 2009.
Office of Aboriginal Affairs of Nova Scotia. 2009. Frequently Asked Questions. On-line. http://www.gov.ns.ca/abor/resources/faqs. Consulted December 16, 2009.
Office of Aboriginal Affairs of Nova Scotia. 2008. Made-in-Nova Scotia Process Update. Government of Nova Scotia: Halifax.
Radio-Canada. 2005a. Coupe de bois: les autochtones déçus. On-line. http://www.radio-canada.ca/nouvelles. Consulted December 16, 2009.
Radio-Canada. 2005b. Québec tend la main aux autochtones. On-line. http://www.radio-canada.ca/nouvelles/Index/nouvelles/200507/23/001-Kelley-Lettre-Autochtones.shtml. Consulted December 16, 2009.
Radio-Canada. 2005c. Déception chez les premières nations du Québec et du Labrador. On-line. http://www.radio-canada.ca/regions/est-quebec/nouvelles/200507/20/011-cour-supreme.asp. Consulted December 16, 2009.
Robitaille Josée Marie, Cardinal Éric and André Binnette. 2006. Les Innus de Pessamit : des droits à connaître et à reconnaître. Pessamit: Conseil des Innus de Pessamit. On-line. http://www.pessamit.ca/communications/Document%20Droits.pdf. Consulted December 16, 2009.