SCC Finds Mi'kmaq do not have Treaty Right to Log

The Supreme Court of Canada Decisions in R. v. Marshall; R. v. Bernard

I.       INTRODUCTION

In July, 2005, the Supreme Court of Canada (SCC) issued its judgment in R. v. Marshall; R. v. Bernard, [2005] S.C.C. 43. These two cases were on appeal from the Nova Scotia Court of Appeal and the New Brunswick Court of Appeal, respectively, and were heard together.

In the Marshall case, Stephen Frederick Marshall and 34 other Mi'kmaq Indians were charged with cutting timber on Crown lands, in Nova Scotia, without authorization, contrary to s.29 of the Crown Lands Act, R.S.N.S. 1989, c. 114. The accused admitted all the elements of the offence, except lack of authorization.

In the Bernard case, Joshua Bernard, a Mi'kmaq Indian in New Brunswick, was charged with unlawful possession of 23 spruce logs he was hauling from the cutting site to the local saw mill in contravention of s.67(1)(c) of the Crown Lands and Forest Act, S.N.B. 1980, c. C-38.1, as amended. Bernard argued that as a Mi'kmaq, he was not required to obtain authorization to log.

These cases dealt with the same issue: whether Mi'kmaq Indians have treaty rights or aboriginal title entitling them to log on Crown land without authorization.

II.       EXECUTIVE SUMMARY

In a unanimous decision, the SCC allowed the Crown's appeal, restored the convictions of the respondents, and dismissed the cross-appeal by the respondents in R. v. Marshall.

The majority of the SCC (McLachlin, C.J. and Major, Bastarache, Abella and Charron JJ) held that the treaties of 1760-61 do not confer a modern Mi'kmaq a right to log contrary to provincial regulation. The right that is found in the treaty is a right to trade. The SCC upheld the trial judge's findings that the respondents' treaty rights did not extend to commercial logging and that the respondents' claim for aboriginal title in the relevant areas should be rejected.

In her reasons, Chief Justice Beverly McLachlin made findings on the following issues related to aboriginal title: a) exclusivity of occupation, b) application of this requirement to nomadic peoples, and c) continuity. McLachlin, C.J. also detailed the SCC's task in evaluating a claim for an aboriginal right as being "to examine the pre-sovereignty aboriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right" (para. 48).

LeBel J. (Fish J. concurring) delivered concurring reasons. LeBel finds that the protected treaty right includes not only a right to trade but also a corresponding right of access to resources for the purpose of engaging in trading activities. On the facts of these cases, however, LeBel found that the parties to the treaties did not contemplate that the forest resources to which the Mi'kmaq had a right of access would be used to engage in logging activities. LeBel also found that the approach adopted by the majority, on the issue of aboriginal title, was too narrowly focused on common law concepts relating to property interests.

III.       KEY POINTS FROM THE CASES

1. Treaty Right
   • The SCC held, as decided in the earlier cases of Marshall 1 (R. v. Marshall, [1999] 3 S.C.R. 456) and Marshall 2 (R. v. Marshall, [1999] 3 S.C.R. 533) that the truckhouse clause, in the treaties, was a trade clause. "The right conferred is not the right to harvest, in itself, but the right to trade" (para. 19). Thus, the SCC held that there is no general treaty right to harvest or gather all natural resources that were used.
   • The issue is whether the modern activity (i.e. the logging activity) could be seen as being a logical evolution of a traditional Mi'kmaq trading practice that was within the contemplation of the parties to the treaties.
   • "Logical evolution" means the same sort of activity, carried on in the modern economy by modern means" (para. 25). The activity must be essentially the same.
   • The "treaty protects the right to practice a traditional 1760 trading activity in the modern way and modern context" (para. 26).
   • The facts did not support that the Mi'kmaq had traded in wood products and timber at the time of the 1760-61 treaties. Thus, commercial logging was not the logical evolution of traditional Mi'kmaq trading activity protected by the treaties of 1760-61.
2. Aboriginal Title
   • The respondents claimed that they did not need provincial authorization to log because they held aboriginal title to the lands that they logged.
   • In evaluating a claim for an aboriginal right, the task of a Court is to examine the pre-sovereignty aboriginal practice and translate that practice into a modern legal right. (para. 48)
   • At paragraph 48, McLachlin, C.J. describes a two step process that determines the nature and extent of the modern right and reconciles the aboriginal and European perspectives:
     1. Examine the nature and extent of the pre-sovereignty aboriginal practice in question.
     2. Seek a corresponding common law right.
   • It would be wrong to look for evidence of aboriginal title in deeds or Euro-centric assertions of ownership. "Rather, we must look for the equivalent in the aboriginal culture at issue" (para. 61).
   • The SCC upheld the trial judge's findings in Marshall that "the Mi'kmaq of the 18th century on mainland Nova Scotia probably had Aboriginal title to lands around their local communities, but not to the cutting sites"(para. 80 quoting R. v. Marshall, [2001] 2 C.N.L.R. 256 para. 143).
   • The SCC upheld the trial judge's findings in Bernard that the accused had not established title.
   • The respondents also argued that the Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1. reserved, to the Mi'kmaq, title in all unceded, unpurchased land in the former Nova Scotia colony, which is now the provinces of Nova Scotia and New Brunswick. The SCC rejected this argument.
   • The respondents also argued aboriginal title under (former Colonial Governor of Nova Scotia) Governor Belcher's Proclamation. The SCC rejected this argument as well.
   • The SCC went on to make some explanatory statements about aboriginal title and in particular exclusive occupation, claims by nomadic and semi-nomadic peoples, and continuity:
     1. Exclusive Occupation
        • "Occupation" means "physical occupation. This may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources" (para. 56).
        • Requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law.
        • "To establish title, documents must prove exclusive pre-sovereignty occupation of the land by their forebears" (para. 55). It is clear from the balance of the decision that this proof may be by way of either documentary or oral history evidence (see below).
        • "It follows from the requirement of exclusive occupation that exploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and fishing rights exercised in a particular area will translate to a hunting or fishing right" (para. 58).
        • "All that is required [to establish aboriginal title] is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so… This is what is meant by the requirement of aboriginal title that the lands have been occupied in an exclusive manner" (para. 65).
     2. Claims of Aboriginal Title by Nomadic and Semi-Nomadic Peoples
        • Nomadic and semi-nomadic peoples could have a claim of aboriginal title if the facts show that they enjoyed sufficient physical possession to give them title to the land. This will depend on all the circumstances including, in particular, the nature of the land and the manner in which it is commonly used. (para. 66)
        • "In each case, the question is whether a degree of physical occupation or use equivalent to common law title had been made out" (para. 66).
     3. Continuity
        • "Claimants must establish that they are right holders" (para. 67).
        • "Modern-day claimants must establish a connection with the pre-sovereignty group upon whose practices they rely to assert title or claim to a more restricted aboriginal right" (para. 67).
        • The aboriginal right is based on pre-sovereignty aboriginal practices and to claim this right, "a modern claimant must show that the right is the descendant of those practices" (para. 67).
        • In order to claim title, it must be shown that the pre-sovereignty group's connection with the land was "of a central significance to their distinctive culture" (para. 67 quoting R. v. Adams, [1996] 3 S.C.R. 101 at para. 26)
     4. Oral Evidence
        • Oral histories must be accepted as evidence to establish aboriginal rights and title provided that the conditions of usefulness (whether the oral history provides evidence that would not otherwise be available or evidence of the aboriginal perspective on the right claimed) and reasonable reliability (ensuring that the witness represents a credible source of the particular people's history) are respected. (para. 68)
        • Both oral and documentary evidence must be evaluated from the aboriginal perspective; i.e. what would a certain practice or event have signified in their world and value system? (para. 69)
        The SCC summarizes their judgment on Aboriginal title at paragraph 70:
        • "In summary, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources: Delgamuukw, at para. 149. Less intensive uses may give rise to different rights. The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law: Delgamuukw, at para. 156. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the group's descent from the pre-sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability. The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved."
        The SCC goes on to talk about the application of these legal principles:
        • "As discussed, the task of the court is to sensitively assess the evidence and then find equivalent modern common law right. The common law right to title is commensurate with exclusionary rights of control. That is what it means and has always meant. If the ancient aboriginal practices do not indicate that type of control, then title is not the appropriate right. To confer title in the absense of evidence of sufficiently regular and exclusive pre-sovereignty occupation, would transform the ancient right into a new and different right. It would also obliterate the distinction that this Court has consistently made between lesser aboriginal rights like the right to fish and the highest aboriginal right, the right to title to the land: Adams, Côté" (para. 77).
3. Concurring Judgment Findings
   • While the judgment of LeBel J. (Fish J. concurring) concurs, based on the facts, with the final result of the majority, this judgment makes some different findings that are worth taking note:
     • The treaty right comprises both a right to trade and a right of access to resources. The right to trade implies a corresponding right of access to resources for trade.
     • "Aboriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the aboriginal and common law approaches" (para. 127).
     • "The patterns and nature of aboriginal occupation of land should inform the standard necessary to prove aboriginal title. The common law notion that ‘physical occupation is proof of possession' remains, but the nature of the occupation is shaped by the aboriginal perspective, which includes a history of nomadic or semi-nomadic modes of occupation" (para. 131).
     • "The fact that a tract of land was used for hunting instead of agriculture does not mean that the group did not possess the land in such a way as to acquire aboriginal title. Taking into account the aboriginal perspective on the occupation of land means that the physical occupation as understood by the modern common law is not the governing criterion. The group's relationship with the land is paramount. To impose rigid concepts and criteria is to ignore aboriginal social and cultural practices that may reflect the significance of the land to the group seeking title. The mere fact that the group travelled within its territory and did not cultivate the land should not take away from its title claim" (para. 136).
     • Occupation should be proved by evidence not of regular and intensive use of the land but of the traditions and culture of the group that connect it with the land. Intensity of use is related to the aboriginal perspective as well as to common law notions of possession. (para. 140)
   • LeBel J. also took the opportunity to make some comments on the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials. He believes that the criminal process is inadequate and inappropriate for dealing with such claims.
   • LeBel J. suggests that when issues of aboriginal treaty, rights and title claims arise in the context of summary conviction proceedings, it may be beneficial to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in civil courts, after which the Crown could decide whether or not to proceed with criminal charges.

IV.       COMMENTARY

While this judgment is an unfortunate one for the Mi'kmaq defendants, it appears as though the comments on aboriginal title could be beneficial to First Nations generally. The case was decided on the facts and the evidence put before the trial court. The SCC does not rule out the possibility of aboriginal title for the Mi'kmaq, but states that the evidence put before the trial court was not enough to establish aboriginal title.

First Nations should not be disheartened by the fact that the Mi'kmaq defendants lost their argument for aboriginal title. This case was brought in the context of a criminal trial, a situation that LeBel, J. views as inappropriate. In a criminal trial context, there are both evidentiary and procedural issues that make litigating aboriginal title claims very difficult, including the scope of an appeal court's review of the trial judge's findings of fact. Criminal cases also may not allow an adequate opportunity for expert evidence and other interested parties to be heard. An aboriginal title claim brought through a civil court for that purpose alone, will provide First Nations with an opportunity to present a more thorough body of evidence in support of their claim.

The SCC took the opportunity to explain key concepts such as "exclusive occupancy" and the need to reconcile aboriginal perspectives with the common law. This helps to flesh-out the test for aboriginal title as outlined in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

British Columbia and Canada will certainly latch onto the phrase "physical occupation" in an attempt to minimize the scope of aboriginal title claims. The best response to this would be: a) to insist that the judgment be read as a whole as opposed to focusing on one phrase without taking the context of the judgment into account; and b) for First Nations to continue to amass documentary and oral evidence that shows evidence of their traditional occupation and use of their territory.