Supreme Court of Canada –  2 S.C.R. 686
This case was delivered a few days before Morris. It clarifies the criteria of the “distinctive culture” established in Van der Peet in order to recognize the existence of an aboriginal right. The traditional activity must not be unique or exclusive, but rather must be an integral part of the distinctive culture.
To understand what this culture represents, one must study the way of life of an aboriginal community before contact with the Europeans, “including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits.” (par. 45 of the decision).
…I think it necessary to discard the notion that the pre-contact practice upon which the right is based must go to the core of the society’s identity, i.e. its single most important defining character. This has never been the test for establishing an aboriginal right. (par. 40 of the decision).
Do the respondents have an Aboriginal right or a treaty right to harvest wood from Crown lands for their personal use?
The right to harvest wood for personal use is crucial to these Aboriginals, and it constituted an aboriginal right. They could therefore harvest wood on Crown lands within their traditional territory (unanimous decision).
Between: the Crown of New Brunswick
And: Dale Sappier and Clark Polchies (Respondents)
Between: the Crown of New Brunswick
And: Darrell Joseph Gray
Interveners: Canada, Ontario, Quebec, Nova Scotia, British Columbia, Alberta, Newfoundland and Labrador, Union of New Brunswick Indians, Forest Products Association of Nova Scotia, Mi’gmawei Mawiomi, New Brunswick Aboriginal Peoples Council, Assembly of First Nations, New Brunswick Forest Products Association, Assembly of Nova Scotia Mi’kmaq Chiefs, Okanagan Nation Alliance and Shuswap Nation Tribal Council, Congress of Aboriginal Peoples, and Songhees Indian Band, Malahat First Nation, T’Sou‑ke First Nation, Snaw‑naw‑as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te’mexw Nations)
R. v. Sappier:
Sappier and Polchies are both of Maliseet descent and members of the Woodstock First Nation; the Woodstock First Nation’s reserve is located west of Fredericton, New Brunswick.
In 2001, Sappier and Polchies’ truck was stopped by forest service officers near the access road to the Native Harvest Block 1266, on which Mi’kmaq were allowed to harvest firewood. They were travelling with thirty-two logs. The officer in charge determined that sixteen logs of the lot did not originate from Harvest Block 1266 but from unoccupied Crown lands located some 1.5 kilometres away. The truck was seized on site and both occupants were charged with unlawful possession of Crown timber under sections 67 (1) (c) and 67 (2) of the Crown Lands and Forest Act.
When interrogated, both accused admitted to cutting the Crown timber, but only to use as material for the construction of a house and furniture. The rest was to be used for firewood by the other members of the First Nations.
R v. Gray:
Gray is of Mi’kmaq descent and a member of the Pabineau First Nation. Its reserve is located near Bathurst, New Brunswick.
In 1999, Gray, accompanied by two other Aboriginal people, cut a maple tree on Crown lands. Forest officers spotted him sawing logs from that tree. Without asking Gray for what purpose the timber was being harvested, the two forest officers charged him with unlawful possession and cutting of Crown timber. He intended to build furniture for his house with the four logs cut.
Sappier, Polchies and Gray: They claimed to have an Aboriginal right to harvest wood for their personal use since before contact with the Europeans, their people already used wood to build shelters and tools, amongst other things. Also, they claimed to have a treaty right protecting this activity and claimed that the Crown Lands and Forest Act infringed on this right.
The Crown: The respondents do not have such an Aboriginal right because the use of wood for the building of shelter or furniture was done out of pure necessity and the practice was common for all human societies, making it indistinctive for both the Maliseet and Mi’kmaq. If the Court concludes that the Maliseet and Mi’kmaq have an Aboriginal right to harvest timber for their personal use, this right was repealed by legislation adopted in the pre-Confederation era.
R. v. Sappier:
Provincial Court (2003): The sixteen logs in question were enough to build a house and furniture. The accused did not possess an Aboriginal right to harvest timber for their personal use since the practice of constructing shelters or assembling furniture was not part of their distinctive culture prior to contact with Europeans. However, they were beneficiaries of a treaty right to harvest timber for their personal use. Since the Crown Lands and Forest Act infringed upon that right without justification, they must be acquitted of the offence.
New Brunswick Court of Queen’s Bench (2004): The trial judge’s decision is affirmed.
New Brunswick Court of Appeal (2004): Sappier and Polchies had both an Aboriginal right and a treaty right to harvest timber for their personal use, since the practice was integral to their culture even though it was not distinct. That right was never extinguished and the Crown Lands and Forest Act poses an unjustified infringement upon that right.
R. v. Gray:
New Brunswick Court of Queen Bench (2003): The trial judge found that Gray did not hold an Aboriginal right to harvest timber in order to make furniture since this practice did not play an important part in Mi’kmaq culture because other human societies would have used wood for their survival.
McLachlin, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein
The Van der Peet case established that in order to prove an aboriginal right, the aboriginal group must establish that the activity was an integral part of its “distinctive culture”.
If the practice itself was undertaken to ensure the survival of a group, it can be considered an integral part of a distinctive culture. However, there is no aboriginal right to “subsistence”. It is the traditional means of subsistence, the practices upon which survival relied, that can be recognized as aboriginal rights. The practice does not have to be distinct or unique, only distinctive, meaning that wood harvesting was characteristic of the Maliseet or Mi’kmaq culture before they came into contact with Europeans. It was the case.
When evaluating the “distinctive culture” criteria, the Court must evaluate whether the practice in question was an integral part of the Aboriginal group’s way of life in a pre-contact era. If it considered only cultural practices, such as canoe-building or basket-making, Aboriginal people’s customs would be reduced to stereotypes. A means of subsistence, such as timber harvesting for personal use, is considered part of an Aboriginal group’s distinctive culture because it was part of their traditional way of life in the pre-contact era.
The nature of the Aboriginal right must be examined in consideration of contemporary circumstances, meaning that the traditional activity must be allowed to evolve and to be practiced in a modern economy with modern means. This means that the right to harvest timber for building temporary shelter with wood must today include the construction of a habitable permanent structure. The activity must be conducted on specific sites traditionally used by the Aboriginal group. Here, the beneficiary must use either traditional Maliseet or Mi’kmaq lands to gather timber. Since, in both cases, the Crown lands were located inside the boundaries of traditional Maliseet or Mi’kmaq territory, the site-specific requirement has been fulfilled.
The Crown did not dispute that the Crown Lands and Forest Act infringed upon the respondents’ Aboriginal right and failed to justify it. Also, it did not discharge itself from the burden of proving extinguishment of the Aboriginal rights concerned. There never was a clear intent expressed by the Imperial Crown to extinguish these rights with pre-Confederation legislation since it merely regulated Aboriginal rights by imposing a licence system for harvesting Crown timber instead of prohibiting the conduct. Therefore, the Aboriginal right to harvest timber for personal use has never been extinguished.
As for the treaty right claim, it was not necessary to examine it in detail since the Court already recognized an Aboriginal right of the same nature.
Binnie: A beneficiary of an Aboriginal right to harvest wood for personal use should be allowed to sell and barter the resource to finance his individual activity. For example, he should be able to sell timber to buy the necessary equipment to build his house or barter with another member of the group.
The original Van der Peet test was deemed difficult to pass by Aboriginal groups and legal scholars alike, since culture is ever-changing in nature, in adapting to new realities and absorbing elements from other cultures (Olthuis, Kleer and Townshend, 2008: 35). By being more flexible in accepting to constitutionally protect traditional activities carried out for the purpose of survival, the Supreme Court complied with the purpose of the Van der Peet test, which is to protect the culture of the Aboriginal group concerned (Charlton, 2008: 325). Also, the analysis of the Aboriginal rights claim has shifted its focus from the centrality of the practice within the group’s culture to a more global examination of the group’s activities before the Europeans’ arrival and how these relate to their way of life (Ibid: 328-329).
In New Brunswick, the Office of the Attorney General issued a policy statement concerning the Maliseet’s and the Mi’kmaq’s Aboriginal right to harvest timber on Crown lands for their personal use and how provincial authorities, mainly the Department of Natural Resources, will accommodate them. It specified that the wood must be collected exclusively for personal use and must benefit the community. It also cannot be sold, traded or bartered. The volume, the quality and the species harvested must be in conformity with the purpose for which they will be used. Any individual who wishes to claim that right must have an authorization from his communal authority beforehand. If not, he risks prosecution. The right is not transferable to non-Aboriginal individuals helping a beneficiary in the course of his harvesting activity (Government of New Brunswick, 2007).
In the rest of Canada, the implications are different. For the areas covered by numbered treaties, the beneficiaries signed away their right to their traditional territory in exchange for which they received permission to hunt, fish and trap on unoccupied Crown lands. Some scholars believe that an argument can be made that wood harvesting for personal use can be considered as part of the traditional way of life of the First Nations signatories and is therefore constitutionally protected as an Aboriginal right, since the issue was not addressed in the numerous treaties (Imai, 2007).
R. v. Van der Peet,  2 S.C.R. 507
R. v. Sappier and Polchies, 2003 NBPC 2
Charlton Guy C. 2008. “Letting Go of Culture: A Comment on R. v. Sappier; R. v. Gray,” in Ottawa Law Review 39: 317-332.
Government of New Brunswick. 2007. Policy Statement on Cases Involving an Aboriginal Right to Harvest Crown Timber for Domestic Use. On-line. http://www.gnb.ca/0227/PPOM/PDF/ Aboriginal%20Right%20to%20Harvest%20Timber_Charging%20Policy.pdf. Retrieved on April 21, 2010.
Imai Shin. 2007. “Bulletin: SCC Upholds Logging for ‘Domestic Uses,’” in The Court. On-line. http://www.thecourt.ca/2007/01/30/bulletin-scc-upholds-logging-for-domestic-uses/. Retrieved on April 21, 2010.
Olthuis John, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook, 3rd ed. Toronto: Carswell.