SUPREME
COURT OF CANADA
Between:
Her Majesty The
Queen
Appellant
and
Dale
Sappier and Clark Polchies
Respondents
and between:
Her Majesty The
Queen
Appellant
and
Darrell
Joseph Gray
Respondent
‑ and ‑
Attorney
General of Canada, Attorney General of Ontario,
Attorney
General of Quebec, Attorney General of Nova Scotia,
Attorney
General of British Columbia, Attorney General of
Alberta,
Attorney General of 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,
Songhees
Indian Band, Malahat First Nation,
T’Sou‑ke
First Nation, and Snaw‑naw‑as (Nanoose) First Nation
and
Beecher Bay Indian Band (collectively Te’mexw Nations)
Interveners
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 73)
Concurring
Reasons:
(para. 74)
|
Bastarache J. (McLachlin C.J. and LeBel, Deschamps, Fish,
Abella, Charron and Rothstein JJ. concurring)
Binnie J.
|
______________________________
R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686, 2006
SCC 54
Her Majesty The Queen Appellant
v.
Dale Sappier and Clark Polchies Respondents
- and -
Her Majesty The Queen Appellant
v.
Darrell Joseph Gray Respondent
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of Nova Scotia,
Attorney General of British Columbia, Attorney General of
Alberta, Attorney General of 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) Interveners
Indexed as: R. v. Sappier; R. v. Gray
Neutral citation: 2006 SCC 54.
File Nos.: 30533, 30531.
2006: May 17, 18; 2006: December 7.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for new brunswick
Aboriginal law — Aboriginal
rights — Right to harvest wood for personal uses — Members
of Maliseet and Mi’kmaq First Nations charged in New Brunswick with unlawful
possession or unlawful cutting of Crown timber — Crown lands where
timber harvested forming part of First Nations’ traditional
territory — Whether Maliseet and Mi’kmaq have aboriginal right to
harvest wood for personal uses on Crown lands.
Aboriginal law — Van der Peet
test — Meaning of “distinctive culture”.
The respondents, S and P who are Maliseet and G who is
Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act
with unlawful possession of or cutting of Crown timber from Crown lands. The
logs had been cut or taken from lands traditionally harvested by the
respondents’ respective First Nations. Those taken by S and P were to be used
for the construction of P’s house and the residue for community firewood.
Those cut by G were to be used to fashion his furniture. The respondents had
no intention of selling the logs or any product made from them. Their defence
was that they possessed an aboriginal and treaty right to harvest timber for
personal use. They were acquitted at trial. S and P’s acquittals were upheld
by the Court of Queen’s Bench and the Court of Appeal. G’s acquittal was set
aside by the Court of Queen’s Bench but restored on appeal. G did not pursue
his treaty right claim before the Court of Appeal or before this Court.
Held: The
appeals should be dismissed. The respondents made out a defence of aboriginal
right.
Per McLachlin C.J.
and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.: Aboriginal rights are founded upon practices, customs, or
traditions which were integral to the distinctive pre‑contact culture of
an aboriginal people. Here, the way of life of the Maliseet and of the Mi’kmaq
during the pre‑contact period was that of migratory peoples who lived
from fishing and hunting and who used the rivers and lakes of Eastern Canada
for transportation. The record also showed that wood was used to fulfill the
communities’ domestic needs for such things as shelter, transportation, tools
and fuel. The relevant practice in the present cases, therefore, must be
characterized as a right to harvest wood for domestic uses as a member of the
aboriginal community. This right so characterized has no commercial dimension
and the harvested wood cannot be sold, traded or bartered to produce assets or
raise money, even if the object of such trade or barter is to finance the
building of a dwelling. Further, it is a communal right; it cannot be
exercised by any member of the aboriginal community independently of the
aboriginal society it is meant to preserve. Lastly, the right is site‑specific,
such that its exercise is necessarily limited to Crown lands traditionally
harvested by members’ respective First Nations. In these cases, the
respondents possessed an aboriginal right to harvest wood for domestic uses on
Crown lands traditionally used for that purpose by their respective First
Nations. [21] [24‑26] [72]
Although very little evidence was led with respect to
the actual harvesting practice, an aboriginal right can be based on evidence
showing the importance of a resource to the pre‑contact culture of an
aboriginal people. Courts must be flexible and be prepared to draw necessary
inferences about the existence and integrality of a practice when direct
evidence is not available. The evidence in these cases established that wood
was critically important to the pre‑contact Maliseet and Mi’kmaq, and it
can be inferred from the evidence that the practice of harvesting wood for
domestic uses was significant, though undertaken primarily for survival
purposes. [27‑28] [33]
A practice undertaken for survival purposes can be
considered integral to an aboriginal community’s distinctive culture. The
nature of the practice which founds an aboriginal right claim must be
considered in the context of the pre‑contact distinctive culture.
“Culture” is an inquiry into the pre‑contact way of life of a particular
aboriginal community, including means of survival, socialization methods, legal
systems, and, potentially, trading habits. The qualifier “distinctive”
incorporates an element of aboriginal specificity but does not mean
“distinct”. The notion of aboriginality must not be reduced to racialized
stereotypes of aboriginal peoples. A court, therefore, must first inquire into
the way of life of the pre‑contact peoples and seek to understand how the
particular pre‑contact practice relied upon by the rights claimants
relates to that way of life. A practice of harvesting wood for domestic uses
undertaken in order to survive is directly related to the pre‑contact way
of life and meets the “integral to a distinctive culture” threshold. [38] [45‑48]
The nature of the right cannot be frozen in its pre‑contact
form but rather must be determined in light of present‑day
circumstances. The right to harvest wood for the construction of temporary
shelters must be allowed to evolve into one to harvest wood by modern means to
be used in the construction of a modern dwelling. The site‑specific
requirement was also met. The Crown conceded in the case of S and P and the
evidence established in the case of G that the harvesting of trees occurred
within Crown lands traditionally used for this activity by members of their
respective First nations. [48] [52‑53]
The Crown either accepted or did not challenge before
the Court of Appeal that the relevant provisions of the Crown Lands and
Forests Act infringed the respondents’ aboriginal right, and it did not
attempt to justify the infringement in this Court. [54‑55]
The Crown did not discharge its burden of proving that
the aboriginal right had been extinguished by pre‑Confederation
statutes. The power to extinguish aboriginal rights in the colonial period
rested with the Imperial Crown and it was unclear whether the colonial
legislature had ever been granted the legal authority to do so. In any event,
the legislation relied upon by the Crown as proof of extinguishment was
primarily regulatory in nature. The regulation of Crown timber through a
licensing scheme does not meet the high standard of demonstrating a clear intent
to extinguish the aboriginal right to harvest wood for domestic uses. [57‑60]
Given this Court’s decision on the aboriginal right
issue, there was no need to decide whether S and P also would benefit from a
treaty right to harvest wood for personal uses. [3]
Per Binnie
J.: The reasons of Bastarache J. were agreed with except as to
his limitation of the exercise of aboriginal rights within modern aboriginal
communities. A division of labour existed in aboriginal communities, pre‑contact.
Barter (and, its modern equivalent, sale) within the reserve or other local
aboriginal community would reflect a more efficient use of human resources than
requiring all members of the community to do everything for themselves. Trade,
barter or sale outside the reserve or other local aboriginal community where
the person exercising the aboriginal right lives would represent a commercial
activity outside the scope of the aboriginal right established in this case.
[74]
Cases Cited
By Bastarache J.
Applied: R.
v. Van der Peet, [1996]
2 S.C.R. 507; referred to: R. v. Badger, [1996]
1 S.C.R. 771; R. v. Sparrow, [1990] 1 S.C.R. 1075; R.
v. Bernard (2003), 262 N.B.R. (2d) 1, 2003 NBCA 55; Mitchell v. M.N.R.,
[2001] 1 S.C.R. 911, 2001 SCC 33; R. v. Adams, [1996]
3 S.C.R. 101; R. v. Powley, [2003] 2 S.C.R. 207,
2003 SCC 43; R. v. Côté, [1996] 3 S.C.R. 139; R.
v. Pamajewon, [1996] 2 S.C.R. 821; R. v. Marshall, [2005]
2 S.C.R. 220, 2005 SCC 43; R. v. Gladstone, [1996]
2 S.C.R. 723; Delgamuukw v. British Columbia, [1997]
3 S.C.R. 1010; M. v. H., [1999] 2 S.C.R. 3; R. v.
Sioui, [1990] 1 S.C.R. 1025; Simon v. The Queen, [1985]
2 S.C.R. 387; Calder v. Attorney‑General of British Columbia,
[1973] S.C.R. 313; Newfoundland v. Drew (2006), 260 Nfld. &
P.E.I.R. 1, 2006 NLCA 53, aff’g (2003), 228 Nfld. & P.E.I.R. 1,
2003 NLSCTD 105.
Statutes and Regulations Cited
Act further to amend
Chapter 133, Title xxxiv, of the Revised Statutes, “Of trespasses on
lands, private property, and lumber”, S.N.B. 1862,
25 Vict., c. 24.
Constitution Act, 1982, s. 35 .
Crown Lands and Forests Act, S.N.B. 1980, c. C‑38.1, ss. 67(1)(a),
(c), 67(2).
Indian Act, R.S.C. 1985, c. I‑5 .
Authors
Cited
Barsh, Russel Lawrence, and
James Youngblood Henderson. “The Supreme Court’s Van der Peet
Trilogy: Naive Imperialism and Ropes of Sand” (1997), 42 McGill
L.J. 993.
Borrows, John, and
Leonard I. Rotman. “The Sui Generis Nature of Aboriginal
Rights: Does it Make a Difference?” (1997), 36 Alta. L.
Rev. 9.
Cheng, Chilwin Chienhan. “Touring
the Museum: A Comment on R. v. Van der Peet”
(1997), 55 U.T. Fac. L. Rev. 419.
Patterson, Stephen E.
“Anatomy of a Treaty: Nova Scotia’s First Native Treaty in
Historical Context” (1999), 48 U.N.B.L.J. 41.
Slattery, Brian. “Understanding
Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.
Wicken, William C. Mi’kmaq
Treaties on Trial. Toronto: University of Toronto Press, 2002.
APPEAL from a judgment of the New Brunswick Court
of Appeal (Daigle, Deschênes and Robertson JJ.A.) (2004), 273 N.B.R.
(2d) 93, 717 A.P.R. 93, 242 D.L.R. (4th) 433, [2004]
4 C.N.L.R. 252, [2004] N.B.J. No. 295 (QL),
2004 NBCA 56, affirming a decision of Clendening J. (2003), 267
N.B.R. (2d) 51, 702 A.P.R. 51, [2004] 2 C.N.L.R. 281, [2003] N.B.J.
No. 386 (QL), 2003 NBQB 389, affirming a decision of Cain Prov.
Ct. J. (2003), 267 N.B.R. (2d) 1, 702 A.P.R. 1, [2003]
2 C.N.L.R. 294, [2003] N.B.J. No. 25 (QL),
2003 NBPC 2. Appeal dismissed.
APPEAL from a judgment of the New Brunswick Court
of Appeal (Daigle, Deschênes and Robertson JJ.A.) (2004), 273 N.B.R.
(2d) 157, 717 A.P.R. 157, [2004] 4 C.N.L.R. 201,
[2004] N.B.J. No. 291 (QL), 2004 NBCA 57, setting aside a
decision of McIntyre J., 2003 CarswellNB 635, setting aside a
decision of Arsenault Prov. Ct. J. Appeal dismissed.
William B. Richards, Henry S. Brown, Q.C., and Iain R. W.
Hollett, for the appellant.
Richard Hatchette
and Maria G. Henheffer, Q.C., for the respondents
Dale Sappier and Clark Polchies.
Ronald E. Gaffney and Thomas J. Burke, for the respondent
Darrell Joseph Gray.
Mitchell R. Taylor and Mark Kindrachuk, Q.C., for the intervener
the Attorney General of Canada.
Owen Young and Ria Tzimas,
for the intervener the Attorney General of Ontario.
René Morin and Caroline Renaud,
for the intervener the Attorney General of Quebec.
Alexander MacBain Cameron, for the intervener the Attorney General of Nova Scotia.
Patrick G. Foy, Q.C., and Robert J. C. Deane, for the
intervener the Attorney General of British Columbia.
Robert J. Normey
and Thomas G. Rothwell, for the intervener the Attorney General of
Alberta.
Donald H. Burrage,
Q.C., and Justin S. C. Mellor, for the intervener the Attorney
General of Newfoundland and Labrador.
Daniel R. Theriault, for the intervener the Union of New Brunswick Indians.
Thomas E. Hart and Jane O’Neill, for the intervener the Forest Products
Association of Nova Scotia.
D. Bruce Clarke, for the intervener Mi’gmawei Mawiomi.
Michael J. Wood, Q.C., for the intervener the New Brunswick Aboriginal
Peoples Council.
Bryan P. Schwartz and Jack R. London, Q.C., for the intervener
the Assembly of First Nations.
Mahmud Jamal and Neil Paris,
for the intervener the New Brunswick Forest Products Association.
Ronalda Murphy, Mary Jane Abram
and Douglas Brown, for the intervener the Assembly of Nova Scotia
Mi’kmaq Chiefs.
Clarine Ostrove
and Leslie J. Pinder, for the interveners the Okanagan Nation
Alliance and the Shuswap Nation Tribal Council.
Andrew K. Lokan and Joseph E. Magnet, for the intervener the
Congress of Aboriginal Peoples.
Robert J. M. Janes, for the interveners the Songhees Indian Band, the Malahat First
Nation, the T’Sou‑ke First Nation, the Snaw‑naw‑as (Nanoose)
First Nation and the Beecher Bay Indian Band (collectively Te’mexw Nations).
The judgment of McLachlin C.J. and Bastarache, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ. was delivered by
Bastarache J. —
1. Introduction
1
The three respondents were charged with unlawful possession or cutting
of Crown timber. Messrs. Sappier and Polchies are Maliseet, and Mr. Gray is
Mi’kmaq. All three respondents argued in defence that they possess an
aboriginal and treaty right to harvest timber for personal use. Mr. Gray has
since abandoned his treaty right claim.
2
The respondents submit that the practice of harvesting timber for
personal use was an integral part of the distinctive culture of the Maliseet
and Mi’kmaq peoples prior to contact with Europeans. The claimed right refers
to the practice of harvesting trees to fulfil the domestic needs of the
pre-contact communities for such things as shelter, transportation, fuel and
tools. The Maliseet and Mi’kmaq were migratory living from hunting and fishing,
and using the rivers and lakes of Eastern Canada for transportation. The
central question on appeal is how to define the distinctive culture of such
peoples, and how to determine which pre-contact practices were integral to that
culture. The Crown submits that the evidence of wood usage in pre-contact
Maliseet and Mi’kmaq societies was primarily a reference to the need for
harvesting wood on a daily basis in order to survive. In the Crown’s
submission, this is not sufficient to establish a defining practice, custom or
tradition that truly made the society what it was.
3
For the reasons that follow, I find that all three respondents have
established an aboriginal right to harvest wood for domestic uses. Given this
Court’s decision on the aboriginal right issue, I need not decide whether
Messrs. Sappier and Polchies also benefit from a treaty right to harvest wood.
2. Facts
2.1 R. v. Sappier and Polchies
4
The parties entered into an agreed statement of facts at the opening of
the trial. On January 12, 2001, at approximately 18:00 hours, a truck load of
timber driven by Mr. Sappier was stopped by Department of Natural Resources and
Energy officers at the junction of the Nashwaak Road and the wood access road
to the Native Harvest Block 1266 near Gorby Gulch, New Brunswick. Mr. Clark
Polchies was one of the passengers in the truck. Officer Wallace noticed that
there were 16 hardwood logs, 4 yellow birch and 12 sugar maple, in the truck.
5
During some preliminary questioning by Officer Wallace, Mr. Sappier was
asked as to where the wood had originated, to which he replied that it was
firewood and that it came from Harvest Block 1266. The officers determined that
the 16 hardwood logs did not come from Harvest Block 1266, but from Crown Lands
approximately 1.5 kilometres away from Harvest Block 1266. Officer Wallace
proceeded to read the Charter Notice and Police Caution to Messrs.
Sappier and Polchies and seized the truck and logs based on the respondents’
unauthorized possession of Crown timber. They were charged with unlawful
possession of Crown timber pursuant to s. 67(1)(c) and s. 67(2) of the Crown
Lands and Forests Act, S.N.B. 1980, c. C-38.1. Officer Collicott then
questioned Messrs. Sappier and Polchies regarding who had cut the timber on the
truck. Mr. Polchies indicated to Officer Collicott that it was he who had cut
all the timber on the truck.
6
The parties agreed that Messrs. Sappier and Polchies were not at the
time of their arrest authorized to be in possession of such timber pursuant to
the Crown Lands and Forests Act or by any other Act of New Brunswick or
regulations thereto, or by the Minister of Natural Resources and Energy of New
Brunswick. Messrs. Sappier and Polchies are both Maliseet and members of the
Woodstock First Nation. They are also registered under the provisions of the
Indian Act, R.S.C. 1985, c. I-5 .
7
Judge Cain of the Provincial Court of New Brunswick found that the 16
hardwood logs were to be used by Mr. Polchies in the construction of a house
and furniture on the Woodstock First Nation, with the residue’s being made
available to the Reserve for fire wood. The learned trial judge also found that
the hardwood logs represented an amount sufficient to make hardwood flooring
and furniture consisting of tables, beds and cabinets.
2.2 R. v. Gray
8
Mr. Gray was charged with unlawful cutting of Crown timber pursuant to
s. 67(1)(a) and s. 67(2) of the Crown Lands and Forests Act. On
December 9, 1999, two forest service officers with the New Brunswick Department
of Natural Resources and Energy saw Mr. Gray cut down a bird’s eye maple tree
on Crown lands. Mr. Gray, who was accompanied by two other men, proceeded to
cut a log from the tree. All three men were recognized and acknowledged to be
status Indians. The men were not asked the use to which the logs would be
put. Mr. Gray is Mi’kmaq and lives on the Pabineau First Nation, near
Bathurst, New Brunswick. Judge Arsenault of the Provincial Court of New Brunswick
accepted Mr. Gray’s evidence that four logs had been cut from trees from which
he intended to make cabinets, end tables, coffee tables and mouldings for his
home. The trial judge also accepted that Mr. Gray had no intention of selling
the logs or any product made from them.
9
In both cases, the critical issue at trial was whether the cutting or
possession of Crown timber was unlawful within the meaning of the Act. All
three defendants claimed an aboriginal and treaty right to harvest timber for
personal use.
3. Judicial History
3.1 R. v. Sappier and Polchies
3.1.1 New Brunswick Provincial Court, [2003]
2 C.N.L.R. 294, 2003 NBPC 2
10
Cain Prov. Ct. J. held that the defendants did not benefit from an
aboriginal right to harvest timber for personal use. Cain Prov. Ct. J. opined
that any human society living on the same lands at the same time would have
used wood and wood products for the same purposes. On this basis, Cain Prov.
Ct. J. held that the practice of using wood to construct shelters or to make
furniture was not in any way integral to the distinctive culture of the
ancestors of the Woodstock First Nation. The learned trial judge ultimately
concluded that the culture of this pre‑contact society would have not
been fundamentally altered had wood not been available for use because the
Maliseet would probably have found some other available material to use in its
place.
11
Cain Prov. Ct. J. concluded, however, that the defendants benefited from
a valid treaty right to harvest timber for personal use. He held that the Crown
Lands and Forests Act infringed the treaty right, and that the Crown had
not succeeded in justifying the infringement. Accordingly, the defendants were
acquitted.
3.1.2 New Brunswick Court of Queen’s Bench,
[2004] 2 C.N.L.R. 281, 2003 NBQB 389
12
In a relatively short decision, Clendening J. dismissed the Crown’s
appeal and affirmed the decision of the trial judge.
3.1.3 New Brunswick Court of Appeal (2004),
273 N.B.R. (2d) 93, 2004 NBCA 56
13
Robertson J.A., writing on behalf of the Court of Appeal, held that the
defendants benefited from both an aboriginal right and a treaty right to
harvest timber for personal use. He emphasized that a practice need not be
distinct in order to found an aboriginal right claim — it need only be integral
to a distinctive culture. In his view, the fact that tree harvesting was
undertaken for survival purposes, and that perhaps any human society would have
done the same, was not determinative. Moreover, in direct response to Cain
Prov. Ct. J.’s reasons, Robertson J.A. queried what other resource could have
been used had timber not been available.
14
Before the Court of Appeal, the Crown no longer alleged that the right
was extinguished by either pre- or post‑Confederation legislation. The
Crown also accepted that the relevant provisions of the Crown Lands and
Forests Act infringed the alleged right and that the infringement could not
be justified under the R. v. Badger, [1996] 1 S.C.R. 771, and R.
v. Sparrow, [1990] 1 S.C.R. 1075, test.
3.2 R. v. Gray
3.2.1 New Brunswick Provincial Court (No.
03190311, August 27, 2001)
15
Arsenault Prov. Ct. J. held that the defendant benefited from an
aboriginal right to gather and harvest wood for personal use. In finding an
aboriginal right, Arsenault Prov. Ct. J. relied heavily on the evidence of Mr.
Sewell, a Mi’kmaq and status Indian, recognized as an elder and historian, and
declared as an expert, “regarding oral traditions and customs which have been
passed down through the generations and more particularly in the field of
describing practices and customs relating to the use of and gathering of wood
by aboriginals in the geographical area encompassed by the terms of the charge”
(p. 3). Mr. Sewell’s evidence was not contradicted by the Crown on cross‑examination
or by the introduction of any other documentary or historical evidence. The
Crown did not lead evidence to justify the infringement of the aboriginal
right.
16
Arsenault Prov. Ct. J. also held that Mr. Gray did not benefit from a
treaty right to harvest timber for personal use.
3.2.2 New Brunswick Court of Queen’s Bench,
2003 CarswellNB 635
17
McIntyre J. allowed the Crown’s appeal and found the defendant guilty.
In finding that the claim for an aboriginal right had not been made out,
McIntyre J. cited a portion of Judge Cain’s reasons in R. v. Sappier and
Polchies. He found that Mr. Sewell’s evidence was insufficient to
conclude that furniture making for personal use was a central defining feature
of the Mi’kmaq culture. He agreed with Cain Prov. Ct. J. that any human society
would have done the same.
3.2.3 New Brunswick Court of Appeal (2004),
273 N.B.R. (2d) 157, 2004 NBCA 57
18
On behalf of a unanimous Court of Appeal, Robertson J.A., relying on his
reasons in R. v. Sappier and Polchies, allowed Mr. Gray’s appeal and
found that a successful claim for an aboriginal right to harvest timber for
personal use had been made out. Robertson J.A. further held that his concurring
opinion and that of Daigle J.A. in R. v. Bernard (2003), 262 N.B.R. (2d)
1, 2003 NBCA 55, were sufficient to dispose of the Crown’s extinguishment
argument. The Crown did not dispute that the Crown Lands and Forests Act infringed
the alleged right, nor did it challenge the trial judge’s finding that the
Crown had failed to justify the infringement.
19
Mr. Gray did not pursue his treaty right claim before the Court of
Appeal or before this Court.
4. The Aboriginal Right Claim
4.1 Characterization of the Respondents’
Claim
20
In order to be an aboriginal right, an activity must be an element of a
practice, custom or tradition integral to the distinctive culture of the
aboriginal group claiming the right: R. v. Van der Peet, [1996] 2 S.C.R.
507, at para. 46. The first step is to identify the precise nature of the
applicant’s claim of having exercised an aboriginal right: Van der Peet,
at para. 76. In so doing, a court should consider such factors as the nature of
the action which the applicant is claiming was done pursuant to an aboriginal
right, the nature of the governmental regulation, statute or action being
impugned, and the practice, custom or tradition being relied upon to establish
the right: Van der Peet, at para. 53. In this case, the respondents were
charged with the unlawful cutting and possession of Crown timber. They claimed
an aboriginal right to harvest timber for personal use so as a defence to those
charges. The statute at issue prohibits the unauthorized cutting, damaging,
removing and possession of timber from Crown lands. The respondents rely on the
pre-contact practice of harvesting timber in order to establish their
aboriginal right.
21
The difficulty in the present cases is that the practice relied upon to
found the claims as characterized by the respondents was the object of very
little evidence at trial. Instead, the respondents led most of their evidence
about the importance of wood in Maliseet and Mi’kmaq cultures and the many uses
to which it was put. This is unusual because the jurisprudence of this Court
establishes the central importance of the actual practice in founding a claim
for an aboriginal right. Aboriginal rights are founded upon practices, customs,
or traditions which were integral to the distinctive pre-contact culture of an
aboriginal people. They are not generally founded upon the importance of a
particular resource. In fact, an aboriginal right cannot be characterized as a
right to a particular resource because to do so would be to treat it as akin to
a common law property right. In characterizing aboriginal rights as sui
generis, this Court has rejected the application of traditional common law
property concepts to such rights: Sparrow, at pp. 1111-12. In my view,
the pre-contact practice is central to the Van der Peet test for two
reasons.
22
First, in order to grasp the importance of a resource to a particular
aboriginal people, the Court seeks to understand how that resource was
harvested, extracted and utilized. These practices are the necessary
“aboriginal” component in aboriginal rights. As Lamer C.J. explained in Van
der Peet, at para. 20:
The task of this Court is to define aboriginal
rights in a manner which recognizes that aboriginal rights are rights
but which does so without losing sight of the fact that they are rights held by
aboriginal people because they are aboriginal. The Court must neither
lose sight of the generalized constitutional status of what s. 35(1) protects,
nor can it ignore the necessary specificity which comes from granting special
constitutional protection to one part of Canadian society. The Court must
define the scope of s. 35(1) in a way which captures both the aboriginal
and the rights in aboriginal rights. [Emphasis in original.]
Section 35 of
the Constitution Act, 1982 seeks to provide a constitutional framework
for the protection of the distinctive cultures of aboriginal peoples, so that
their prior occupation of North America can be recognized and reconciled with
the sovereignty of the Crown: Van der Peet, at para. 31. In an
oft-quoted passage, Lamer C.J. acknowledged in Van der Peet, at para.
30, that, “the doctrine of aboriginal rights exists, and is recognized and
affirmed by s. 35(1) , because of one simple fact: when Europeans arrived in
North America, aboriginal peoples were already here, living in communities on
the land, and participating in distinctive cultures, as they had done for
centuries” (emphasis deleted). The goal for courts is, therefore, to determine
how the claimed right relates to the pre-contact culture or way of life of an
aboriginal society. This has been achieved by requiring aboriginal rights
claimants to found their claim on a pre-contact practice which was integral to
the distinctive culture of the particular aboriginal community. It is
critically important that the Court be able to identify a practice that
helps to define the distinctive way of life of the community as an aboriginal
community. The importance of leading evidence about the pre-contact practice
upon which the claimed right is based should not be understated. In the absence
of such evidence, courts will find it difficult to relate the claimed right to
the pre-contact way of life of the specific aboriginal people, so as to trigger
s. 35 protection.
23
Second, it is also necessary to identify the pre-contact practice upon
which the claim is founded in order to consider how it might have evolved to
its present-day form. This Court has long recognized that aboriginal rights are
not frozen in their pre-contact form, and that ancestral rights may find modern
expression: Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, at
para. 13; Van der Peet, at para. 64.
24
In the present cases, the relevant practice for the purposes of the Van
der Peet test is harvesting wood. It is this practice upon which the
respondents opted to found their claims. However, the respondents do not claim
a right to harvest wood for any and all purposes — such a right would not
provide sufficient specificity to apply the reasoning I have just described.
The respondents instead claim the right to harvest timber for personal uses; I
find this characterization to be too general as well. As previously explained,
it is critical that the Court identify a practice that helps to define the way
of life or distinctiveness of the particular aboriginal community. The claimed
right should then be delineated in accordance with that practice: Van der
Peet, at para. 52. The way of life of the Maliseet and of the Mi’kmaq
during the pre-contact period is that of a migratory people who lived from
fishing and hunting and who used the rivers and lakes of Eastern Canada for
transportation. Thus, the practice should be characterized as the harvesting of
wood for certain uses that are directly associated with that particular way of
life. The record shows that wood was used to fulfill the communities’ domestic
needs for such things as shelter, transportation, tools and fuel. I would
therefore characterize the respondents’ claim as a right to harvest wood for
domestic uses as a member of the aboriginal community.
25
The word “domestic” qualifies the uses to which the harvested timber can
be put. The right so characterized has no commercial dimension. The harvested
wood cannot be sold, traded or bartered to produce assets or raise money. This
is so even if the object of such trade or barter is to finance the building of
a dwelling. In other words, although the right would permit the harvesting of
timber to be used in the construction of a dwelling, it is not the case that a
right holder can sell the wood in order to raise money to finance the purchase
or construction of a dwelling, or any of its components.
26
The right to harvest wood for domestic uses is a communal one.
Section 35 recognizes and affirms existing aboriginal and treaty rights in
order to assist in ensuring the continued existence of these particular
aboriginal societies. The exercise of the aboriginal right to harvest wood for
domestic uses must be tied to this purpose. The right to harvest (which is
distinct from the right to make personal use of the harvested product even
though they are related) is not one to be exercised by any member of the
aboriginal community independently of the aboriginal society it is meant to
preserve. It is a right that assists the society in maintaining its distinctive
character.
4.2 The Integral to a Distinctive Culture
Test
4.2.1 The Evidentiary Problem
27
The question before the Court at this stage is whether the practice of
harvesting wood for domestic uses was integral to the distinctive culture of
the Maliseet and Mi’kmaq, pre-contact. As previously explained, very little
evidence was led with respect to the actual harvesting practice. Nevertheless,
this Court has previously recognized an aboriginal right based on evidence
showing the importance of a resource to the pre-contact culture of an
aboriginal people. In R. v. Adams, [1996] 3 S.C.R. 101, this Court
recognized an aboriginal right to fish for food in Lake St. Francis despite the
fact that “[t]he fish were not significant to the Mohawks for social or
ceremonial reasons” (para. 45). The Court based its holding on the fact that
“[the fish] were an important and significant source of subsistence for the
Mohawks” (para. 45). In other words, the Court recognized a right to fish for
food based on the importance of the resource. Fishing was such a significant
practice as to constitute a way of life. In this sense, it was part of what
made the pre-contact Mohawk community distinctive.
28
In the present cases, the evidence established that wood was critically
important to the Maliseet and the Mi’kmaq, pre-contact. The learned trial judge
in the Sappier and Polchies prosecution found that the Maliseet people
used wood or wood products from the forest in which they lived to construct
shelters, implements of husbandry and perhaps in the construction of what might
be called rude furnishings (para. 12). Cain Prov. Ct. J. also referred to
evidence that was led to the effect that the pre‑European Maliseet
society revered wood and considered it sacred (para. 13). Referring to the Gray
prosecution, Cain Prov. Ct. J. stated that, “[t]here is no question that
the evidence of Mr. Sewell in Gray (supra) clearly established an
historical pattern and tradition of the use of wood from Crown lands for the
construction of furniture and housing” (para. 27). He went on to comment that
“[s]imilar evidence was led in the case at bar” (para. 27).
29
In the Gray prosecution, the trial judge declared the defence
witness, Mr. Sewell, an expert “regarding oral traditions and customs
which have been passed down through the generations and more particularly in
the field of describing practices and customs relating to the use of and
gathering of wood by aboriginals in the geographical area encompassed by the
terms of the charge” (Arsenault Prov. Ct. J., at p. 3). As previously
mentioned, Mr. Sewell is Mi’kmaq and a status Indian who is recognized as an
elder and historian within his community. Arsenault Prov. Ct. J. stated that:
I have found and I do find that the evidence of Mr. Sewell was reliable
and extremely useful to this court and I might point out that it was in no way
diminished by cross-examination nor did the Crown in this case elect to
contradict it by any documentary evidence or the evidence of any historian. [p.
23]
30
Mr. Sewell testified about the many uses to which wood was and continues
to be put. He spoke of using the inner bark of a cedar tree for rope, and of
cutting strips of it to be used in the construction of the old birch bark
canoes. Birch bark and ash were used to make baskets. Birch, poplar and black
spruce were fashioned into paddles. Any leftover birch or maple was used for
firewood. He spoke of using cedar to make drums, and of how the aboriginal
peoples were also carvers. He testified that some of the figureheads on the
first ships to arrive in Canada were done by aboriginals. Mr. Sewell spoke
of building camps and making pots out of wood. He testified that the pots were
made out of large logs, using fire first to burn out the centre and then
chiselling it out. He spoke of using bird’s eye maple and curly maple in the
construction of axe handles and boat paddles, either for sale or for gifts. He
confirmed that the extraction of sap from maple and birch trees had been known
to the Mi’kmaq for centuries (testimony of Gilbert Sewell, presented during
examination-in-chief, October 4, 2000, pp. 16-19 (A.R., vol. I, at
pp. 80-83)). Finally, he spoke of the practice of fashioning spears for
fishing out of ash (A.R., vol. I, at p. 94).
31
Mr. Sewell concluded that, “[s]o, as far back as I can read in history
or the oral tradition that has been passed down to me, it’s been — we’ve been
always gathering and we’ve been always using wood as, as, as a way of life”
(A.R., vol. I, at p. 81). This evidence detailing the many uses to which wood
was put by the Mi’kmaq as a whole is important given the communal nature of
aboriginal rights. The trial judge accepted this evidence as proof that the
practice of harvesting wood for domestic uses was integral to the pre-contact
Mi’kmaq way of life.
32
Before this Court, the Crown conceded in the Sappier and Polchies appeal
that wood was important to the Maliseet for survival purposes in the
pre-contact period (appellant’s factum, at para. 46). The Crown also
acknowledged that “wood was undeniably used in many facets of aboriginal life”
(ibid.). In the Gray appeal, the Crown similarly conceded that
“wood was used in Mi’kmaq society to ensure survival” (ibid., at para.
44).
33
As in Adams, I infer from this evidence that the practice of
harvesting wood for domestic uses was also significant, though undertaken
primarily for survival purposes. Flexibility is important when engaging in the Van
der Peet analysis because the object is to provide cultural security and
continuity for the particular aboriginal society. This object gives context to
the analysis. For this reason, courts must be prepared to draw necessary
inferences about the existence and integrality of a practice when direct
evidence is not available.
34
Flexibility is also important in the present cases with regard to the
relevant time frame during which the practice must be found to have been
integral to the distinctive culture of the aboriginal society in question. It
is settled law that the time period courts consider in determining whether the Van
der Peet test has been met is the period prior to contact with the
Europeans (see R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43, which
modified the Van der Peet test insofar as it applies to the Métis
although it affirmed it otherwise). As Lamer C.J. explained in Van der Peet,
“[b]ecause it is the fact that distinctive aboriginal societies lived on the
land prior to the arrival of Europeans that underlies the aboriginal rights
protected by s. 35(1), it is to that pre‑contact period that the courts
must look in identifying aboriginal rights” (para. 60). Before this Court, the
Attorney General of Nova Scotia, intervener, objected to some of Mr. Sewell’s
evidence insofar as he did not specify to which time period he was referring
when describing the uses to which harvested wood was put by the Mi’kmaq. In other
words, it was respectfully submitted that it was unclear whether he was always
describing pre‑contact practices. In dismissing this concern, I need only
repeat what was said in Van der Peet, and reiterated more recently in Mitchell
at para. 29, about the adapted rules of evidence applicable in aboriginal
rights litigation and the use of post-contact evidence to prove the existence
and integrality of pre-contact practices:
That this is the relevant time should not suggest,
however, that the aboriginal group claiming the right must accomplish the next
to impossible task of producing conclusive evidence from pre‑contact
times about the practices, customs and traditions of their community. It would
be entirely contrary to the spirit and intent of s. 35(1) to define aboriginal
rights in such a fashion so as to preclude in practice any successful claim for
the existence of such a right. The evidence relied upon by the applicant and
the courts may relate to aboriginal practices, customs and traditions post‑contact;
it simply needs to be directed at demonstrating which aspects of the aboriginal
community and society have their origins pre‑contact. It is those
practices, customs and traditions that can be rooted in the pre‑contact
societies of the aboriginal community in question that will constitute
aboriginal rights. [para. 62]
4.2.2 Whether a Practice Undertaken for
Survival Purposes Can Be Considered Integral to an Aboriginal Community’s
Distinctive Culture
35
The principal issue on appeal is whether a practice undertaken for
survival purposes can meet the integral to a distinctive culture test. The
learned trial judge in the Sappier and Polchies trial concluded that it
could not. Cain Prov. Ct. J. was of the view that:
The practice of using wood to construct shelters, irrespective of
whether they were wigwams or wooden building or of using wood to make
furniture, was not in any way integral to the distinctive culture of the
ancestors of the Woodstock First Nation in pre-European times. From the
evidence adduced it is clear that they used wood or wood products from the
forest in which they lived to construct shelters, implements of husbandry and
perhaps in the construction of what might be called rude furnishings. Any
humane society who would have been living on the same lands in New Brunswick at
the same time would have used wood and wood products for the same purpose.
[para. 12]
36
In making these comments, Cain Prov. Ct. J. relied on a statement made
by Lamer C.J. in Van der Peet, at para. 56:
To recognize and affirm the prior occupation of Canada by distinctive
aboriginal societies it is to what makes those societies distinctive that the
court must look in identifying aboriginal rights. The court cannot look at
those aspects of the aboriginal society that are true of every human society
(e.g., eating to survive), nor can it look at those aspects of the
aboriginal society that are only incidental or occasional to that society; the
court must look instead to the defining and central attributes of the
aboriginal society in question. It is only by focusing on the aspects of the
aboriginal society that make that society distinctive that the definition of
aboriginal rights will accomplish the purpose underlying s. 35(1). [Emphasis
added; emphasis in original deleted.]
Relying on
this passage, Cain Prov. Ct. J. concluded that harvesting timber to construct a
shelter was akin to eating to survive. This statement by Lamer C.J. appears to
have resulted in considerable confusion as to whether a practice undertaken
strictly for survival purposes can found an aboriginal right claim. However,
further in his decision, Lamer C.J. clarifies that the pre‑contact
practice, custom or tradition relied on need not be distinct; it need only be
distinctive. In so doing, he confirms that fishing for food can, in certain
contexts, meet the integral to a distinctive culture test:
That the standard an aboriginal community must meet
is distinctiveness, not distinctness, arises from the recognition in Sparrow,
supra, of an aboriginal right to fish for food. Certainly no aboriginal
group in Canada could claim that its culture is “distinct” or unique in fishing
for food; fishing for food is something done by many different cultures and
societies around the world. What the Musqueam claimed in Sparrow, supra,
was rather that it was fishing for food which, in part, made Musqueam culture
what it is; fishing for food was characteristic of Musqueam culture and,
therefore, a distinctive part of that culture. Since it was so it constituted
an aboriginal right under s. 35(1). [Emphasis deleted; para. 72.]
37
More recently, this Court has recognized a right to fish for food in Adams
and in R. v. Côté, [1996] 3 S.C.R. 139. In Adams, the Court
specifically noted that fish were only important as a source of subsistence. In
Côté, Lamer C.J. emphasized that “[f]ishing was significant to the
Algonquins, as it represented the predominant source of subsistence during the
season leading up to winter” (para. 68). Moreover, this Court has previously
suggested that the scope of s. 35 should extend to protect the means by which
an aboriginal society traditionally sustained itself, and that the Van der Peet
test emphasizes practices that are vital to the life of the aboriginal
society in question: see R. v. Pamajewon, [1996] 2 S.C.R. 821, at
para. 28, and Mitchell, at para. 12, respectively. I wish to clarify,
however, that there is no such thing as an aboriginal right to sustenance.
Rather, these cases stand for the proposition that the traditional means
of sustenance, meaning the pre-contact practices relied upon for survival, can
in some cases be considered integral to the distinctive culture of the particular
aboriginal people.
38
I can therefore find no jurisprudential authority to support the
proposition that a practice undertaken merely for survival purposes cannot be
considered integral to the distinctive culture of an aboriginal people. Rather,
I find that the jurisprudence weighs in favour of protecting the traditional
means of survival of an aboriginal community.
39
McLachlin C.J. explained in Mitchell that in order to satisfy the
Van der Peet test, the practice, custom or tradition must have been
integral to the distinctive culture of the aboriginal peoples, in the sense
that
it distinguished or characterized their traditional culture and lay at
the core of the peoples’ identity. It must be a “defining feature” of the
aboriginal society, such that the culture would be “fundamentally altered”
without it. It must be a feature of “central significance” to the peoples’
culture, one that “truly made the society what it was” (Van der Peet, supra,
at paras. 54-59 . . .). [Emphasis deleted; para. 12.]
40
As I have already explained, the purpose of this exercise is to
understand the way of life of the particular aboriginal society, pre-contact,
and to determine how the claimed right relates to it. This is achieved by
founding the claim on a pre-contact practice, and determining whether that
practice was integral to the distinctive culture of the aboriginal people in
question, pre-contact. Section 35 seeks to protect integral elements of the way
of life of these aboriginal societies, including their traditional means of
survival. Although this was affirmed in Sparrow, Adams and Côté,
the courts below queried whether a practice undertaken strictly for survival
purposes really went to the core of a people’s identity. Although intended as a
helpful description of the Van der Peet test, the reference in Mitchell
to a “core identity” may have unintentionally resulted in a heightened
threshold for establishing an aboriginal right. For this reason, 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. This Court has clearly held that a claimant need
only show that the practice was integral to the aboriginal society’s
pre-contact distinctive culture.
41
The notion that the pre-contact practice must be a “defining feature” of
the aboriginal society, such that the culture would be “fundamentally altered”
without it, has also served in some cases to create artificial barriers to the
recognition and affirmation of aboriginal rights. The trial judge in the Sappier
and Polchies prosecution concluded that Maliseet culture would not have
been fundamentally altered had wood not been available to it. In his opinion,
“[t]he society would in all probability have used some other available
material” (para. 14). In response, I would adopt the following comments made by
Robertson J.A., on behalf of the Court of Appeal:
. . . I am at a loss to speculate on what other natural resource might
have been used had wood not been available. Snow houses would have provided New
Brunswick’s aboriginal societies with adequate shelter during the winter months
only. Whether fish and wildlife by‑products would have served as an
alternative source of fuel, and an adequate one, is a question on which I need
not speculate. There is also the question as to how the aboriginal societies of
New Brunswick would have traversed the lakes and rivers of this Province, in
pursuit of fish and wildlife, without the traditional means of transportation:
canoes. [para. 91]
I further
agree with Robertson J.A. that courts should be cautious in considering whether
the particular aboriginal culture would have been fundamentally altered had the
gathering activity in question not been pursued. The learned judge correctly
notes that “[a] society that fishes for sustenance will survive even if it does
not consume meat and the converse is equally true” (para. 92).
4.2.3 Applying the Van der Peet Test:
the Meaning of “Distinctive Culture”
42
This brings us to the question of what is meant by “distinctive
culture”. As previously explained, this Court in Van der Peet set out to
interpret s. 35 of the Constitution in a way which captures both the aboriginal
and the rights in aboriginal rights. Lamer C.J. spoke of the “necessary
specificity which comes from granting special constitutional protection to one
part of Canadian society” (para. 20). It is that aboriginal specificity which
the notion of a “distinctive culture” seeks to capture. However, it is clear
that “Aboriginality means more than interesting cultural practices and
anthropological curiosities worthy only of a museum” (C. C. Cheng, “Touring the
Museum: A Comment on R. v. Van der Peet” (1997), 55 U.T. Fac. L. Rev.
419, at p. 434). R. L. Barsh and J. Y. Henderson argue that as a result of
the Van der Peet decision, “‘culture’ has implicitly been
taken to mean a fixed inventory of traits or characteristics” (“The Supreme
Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand”
(1997), 42 McGill L.J. 993, at p. 1002).
43
Many of these concerns echo those expressed by McLachlin J. (as she then
was) and by L’Heureux-Dubé J. in dissenting opinions in Van der Peet.
L’Heureux-Dubé J. was of the view that “[t]he approach based on aboriginal
practices, traditions and customs considers only discrete parts of aboriginal
culture, separating them from the general culture in which they are rooted”
(para. 150). McLachlin J. opined that “different people may entertain different
ideas of what is distinctive”, thereby creating problems of indeterminacy in
the Van der Peet test (para. 257).
44
Culture, let alone “distinctive culture”, has proven to be a difficult
concept to grasp for Canadian courts. Moreover, the term “culture” as it is
used in the English language may not find a perfect parallel in certain
aboriginal languages. Barsh and Henderson note that “[w]e can find no precise
equivalent of European concepts of ‘culture’ in Mi’kmaq, for example. How we
maintain contact with our traditions is tan’telo’tlieki‑p. How we
perpetuate our consciousness is described as tlilnuo’lti’k. How we
maintain our language is tlinuita’sim. Each of these terms connotes a
process rather than a thing” (p. 1002, note 30). Ultimately, the concept of
culture is itself inherently cultural.
45
The aboriginal rights doctrine, which has been constitutionalized by s.
35 , arises from the simple fact of prior occupation of the lands now forming
Canada. The “integral to a distinctive culture” test must necessarily be
understood in this context. As L’Heureux-Dubé J. explained in dissent in Van
der Peet, “[t]he ‘distinctive aboriginal culture’ must be taken to refer to
the reality that, despite British sovereignty, aboriginal people were the
original organized society occupying and using Canadian lands: Calder v.
Attorney‑General of British Columbia, supra, at p. 328, per
Judson J., and Guerin, supra, at p. 379, per Dickson J.
(as he then was)” (para. 159). The focus of the Court should therefore be on
the nature of this prior occupation. What is meant by “culture” is
really an inquiry into the pre-contact way of life of a particular aboriginal
community, including their means of survival, their socialization methods,
their legal systems, and, potentially, their trading habits. The use of the
word “distinctive” as a qualifier is meant to incorporate an element of
aboriginal specificity. However, “distinctive” does not mean “distinct”, and
the notion of aboriginality must not be reduced to “racialized stereotypes of
Aboriginal peoples” (J. Borrows and L. I. Rotman, “The Sui Generis
Nature of Aboriginal Rights: Does it Make a Difference?” (1997), 36 Alta. L.
Rev. 9, at p. 36).
46
In post‑hearing submissions to the Court of Appeal in the Sappier
and Polchies case, the Crown admitted that gathering birch bark for the
construction of canoes or hemlock for basket-making were practices likely
integral to the distinctive Maliseet culture (para. 94). But it would be a
mistake to reduce the entire pre-contact distinctive Maliseet culture to
canoe-building and basket-making. To hold otherwise would be to fall in the
trap of reducing an entire people’s culture to specific anthropological
curiosities and, potentially, racialized aboriginal stereotypes. Instead, the
Court must first inquire into the way of life of the Maliseet and Mi’kmaq,
pre-contact. As previously explained, these were migratory communities using
the rivers and lakes of Eastern Canada for transportation and living
essentially from hunting and fishing. The Court must therefore seek to
understand how the particular pre-contact practice relied upon relates to that
way of life. In the present cases, the practice of harvesting wood for domestic
uses including shelter, transportation, fuel and tools is directly related to
the way of life I have just described. I have already explained that we must
discard the idea that the practice must go to the core of a people’s culture.
The fact that harvesting wood for domestic uses was undertaken for survival
purposes is sufficient, given the evidence adduced at trial, to meet the
integral to a distinctive culture threshold.
47
I therefore conclude that the practice of harvesting wood for domestic
uses was integral to the pre-contact distinctive culture of both the Maliseet and
Mi’kmaq peoples.
4.3 Continuity of the Claimed Right With
the Pre-Contact Practice
48
Although the nature of the practice which founds the aboriginal
right claim must be considered in the context of the pre-contact distinctive
culture of the particular aboriginal community, the nature of the right
must be determined in light of present-day circumstances. As McLachlin C.J.
explained in R. v. Marshall, [2005] 2 S.C.R. 220, 2005 SCC 43, at para.
25, “[l]ogical evolution means the same sort of activity, carried on in the
modern economy by modern means.” It is the practice, along with its associated
uses, which must be allowed to evolve. The right to harvest wood for the
construction of temporary shelters must be allowed to evolve into a right to
harvest wood by modern means to be used in the construction of a modern
dwelling. Any other conclusion would freeze the right in its pre-contact form.
49
Before this Court, the Crown submitted that “[l]arge permanent
dwellings, constructed from multi‑dimensional wood, obtained by modern
methods of forest extraction and milling of lumber, cannot resonate as a
Maliseet aboriginal right, or as a proper application of the logical evolution
principle”, because they are not grounded in traditional Maliseet culture
(appellant’s factum in Sappier and Polchies appeal at para. 76;
appellant’s factum in Gray appeal at para. 80). I find this submission
to be contrary to the established jurisprudence of this Court, which has
consistently held that ancestral rights may find modern form: Mitchell,
at para. 13. In Sparrow, Dickson C.J. explained that “the phrase
‘existing aboriginal rights’ must be interpreted flexibly so as to permit their
evolution over time” (p. 1093). Citing Professor Slattery, he stated that “the
word ‘existing’ suggests that those rights are ‘affirmed in a contemporary form
rather than in their primeval simplicity and vigour’” (p. 1093, citing B.
Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev.
727, at p. 782). In Mitchell, McLachlin C.J. drew a distinction between
the particular aboriginal right, which is established at the moment of contact,
and its expression, which evolves over time (para. 13). L’Heureux-Dubé J. in dissent
in Van der Peet emphasized that “aboriginal rights must be permitted to
maintain contemporary relevance in relation to the needs of the natives as
their practices, traditions and customs change and evolve with the overall
society in which they live” (para. 172). If aboriginal rights are not permitted
to evolve and take modern forms, then they will become utterly useless. Surely
the Crown cannot be suggesting that the respondents, all of whom live on a
reserve, would be limited to building wigwams. If such were the case, the
doctrine of aboriginal rights would truly be limited to recognizing and
affirming a narrow subset of “anthropological curiosities”, and our notion of
aboriginality would be reduced to a small number of outdated stereotypes. The cultures
of the aboriginal peoples who occupied the lands now forming Canada prior to
the arrival of the Europeans, and who did so while living in organized
societies with their own distinctive ways of life, cannot be reduced to
wigwams, baskets and canoes.
4.4 The Site-Specific Requirement
50
This Court has imposed a site‑specific requirement on the
aboriginal hunting and fishing rights it recognized in Adams, Côté,
Mitchell, and Powley. Lamer C.J. explained in Adams, at
para. 30, that
if an aboriginal people demonstrates that hunting on a specific tract
of land was an integral part of their distinctive culture then, even if the
right exists apart from title to that tract of land, the aboriginal right to
hunt is nonetheless defined as, and limited to, the right to hunt on the
specific tract of land. A site‑specific hunting or fishing right does
not, simply because it is independent of aboriginal title to the land on which
it took place, become an abstract fishing or hunting right exercisable
anywhere; it continues to be a right to hunt or fish on the tract of land in
question. [Emphasis deleted.]
51
The characterization of the claimed right in the present cases, as in Adams,
Côté and Mitchell, imports a necessary geographical element, and
its integrality to the Maliseet and Mi’kmaq cultures should be assessed on this
basis: Mitchell, at para. 59. I agree with Robertson J.A. in the Sappier
and Polchies decision that “[t]his result is hardly surprising once it is
recognized that all harvesting activities are land and water based” (para. 50).
52
At the trial of Messrs. Sappier and Polchies, the Crown conceded that
“the issue of territoriality does not arise in the trial of the Defendants on
the charge set out herein” (Agreed Statement of Facts at para. 12, reproduced
in the trial decision at p. 296). Moreover, in its reply to the defendants’
Notice of Contention, the Crown addressed the question of whether the
harvesting of trees occurred within Crown lands traditionally used for this
practice. The Crown responded: “This question would not appear to be an issue
as wood was gathered at will within the traditional Maliseet territory”
(reproduced in the reasons of the Court of Appeal at para. 71). Territoriality
is therefore not at issue in the Sappier and Polchies prosecution.
53
In the Gray trial, the trial judge accepted Mr. Sewell’s evidence
that the Mi’kmaq had traditionally used the Crown lands in question for the
purpose of tree harvesting. The Court of Appeal noted that the Crown did not
dispute this finding (para. 15). I would conclude on this basis that Mr.
Gray has established an aboriginal right to harvest wood for domestic uses on
Crown lands traditionally used for this purpose by members of the Pabineau
First Nation.
4.5 Infringement and Justification
54
In the Sappier and Polchies litigation, the Crown accepted that
the relevant provisions of the Crown Lands and Forests Act infringed the
alleged right and that the infringement could not be justified under the test
set out in Sparrow and in Badger (Court of Appeal reasons, at
para. 3). The Crown did not argue otherwise before this Court. Before the Court
of Appeal in the Gray case, the Crown did not challenge the trial
judge’s conclusions that the impugned legislation infringed the right and that
the Crown had failed to justify the infringement (para. 26).
55
The aboriginal right to harvest wood for domestic uses is subject to
regulation pursuant to the ordinary rules applicable in that regard. However,
given that the Crown did not attempt to justify the infringement in the present
cases, this is a question that need not be addressed in the circumstances of
these appeals.
4.6 Extinguishment
56
The Crown did not allege before the Court of Appeal in the Sappier
and Polchies litigation that the aboriginal right was extinguished by
either pre- or post‑Confederation legislation (see Court of Appeal
reasons, at para. 3). The argument was raised at trial, but not advanced on
appeal because of that Court’s decision in Bernard, in which the Crown
had argued that any right of the Miramichi Mi’kmaq to cut logs on Crown lands
as an aspect of their aboriginal title over the area in question had been
extinguished by the same series of four pre‑Confederation statutes
enacted by the province of New Brunswick between 1837 and 1862 (per
Robertson J.A., at para. 177). The argument was advanced on appeal in the Gray
case, where Robertson J.A. explicitly held that:
My concurring opinion and that of Justice Daigle in Bernard
is a sufficient basis for purposes of disposing of any argument that an
existing aboriginal right was extinguished by either pre‑ or post‑Confederation
provincial legislation: see Bernard at paras. 176‑179 and 523‑541.
[para. 25]
57
The Crown bears the burden of proving extinguishment. Before this Court,
it relied on four pre-Confederation statutes enacted by the New Brunswick
legislature between 1840 and 1862 as evidence of the Crown’s intent to
extinguish any aboriginal right to harvest wood. A clear intent is necessary in
order to extinguish aboriginal rights. However, that intent need not be express
and therefore aboriginal rights may also be extinguished implicitly: Sparrow,
at p. 1099; R. v. Gladstone, [1996] 2 S.C.R. 723, at paras. 31 and 34.
58
First, it must be emphasized that during the colonial period, the power
to extinguish aboriginal rights rested with the Imperial Crown: Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, at para. 15. Given the
submissions advanced on behalf of the respondents and the Assembly of First
Nations, intervener, it is not at all clear that the colonial legislature of
New Brunswick was ever granted the legal authority by the Imperial Crown to extinguish
aboriginal rights. I do not deal with this argument in any detail as I conclude
that the pre‑Confederation legislation does not indicate a clear
intention to extinguish aboriginal rights.
59
The legislation relied upon by the Crown as proof of extinguishment is
primarily regulatory in nature, although it does introduce prohibitions and
create misdemeanour offences. The earlier legislation aimed to penalize those
who harvested timber on Crown lands without permission. Starting in 1850, the
statutes sought to strengthen the rights of Crown lessees and licensees by
providing the legal method by which they could regain timber which had been
unlawfully taken. The Crown relies in particular on the 1862 amendment, which
defined the rights of licensees as existing notwithstanding “any law, usage or
custom to the contrary thereof” (S.N.B. 1862, 25 Vict., c. 24).
60
Following this Court’s decision in Sparrow, the regulation of
Crown timber through a licensing scheme does not meet the high standard of demonstrating
a clear intent to extinguish the aboriginal right to harvest wood for domestic
uses. As Lamer C.J. explained in Delgamuukw, at para. 180, “[i]n [Sparrow],
the Court drew a distinction between laws which extinguished aboriginal rights,
and those which merely regulated them. Although the latter types of laws may
have been ‘necessarily inconsistent’ with the continued exercise of aboriginal
rights, they could not extinguish those rights.” The same distinction was made
in Gladstone, where the Court explained that a varying regulatory scheme
that at times entirely prohibited aboriginal peoples from harvesting herring
spawn on kelp could not be said to express a clear and plain intention to
eliminate the aboriginal rights of the appellants and of the Heiltsuk Band.
Lamer C.J. concluded that, “[a]s in Sparrow, the Crown has only
demonstrated that it controlled the fisheries, not that it has acted so as to
delineate the extent of aboriginal rights” (para. 34).
61
For this reason, I find that the Crown has not discharged its onus of
proving that the aboriginal right to harvest wood for domestic uses has been
extinguished.
5. The Treaty Right Claim
62
As part of the agreed statement of facts put before the Court in the
trial of Messrs. Sappier and Polchies, the Crown admitted that the Treaty of
1725 and the ratification thereof in 1726 are valid Treaties and that the
defendants are beneficiaries of those Treaties. The Crown’s concession about
the validity of the Treaty is one of law. This Court has recognized that it is
not bound by concessions of law: M. v. H., [1999] 2 S.C.R. 3, at para.
45. Nonetheless, the fact that this concession occurred in the context of a
criminal prosecution raises fundamental fairness concerns.
63
The onus of proving that a treaty right has been extinguished rests with
the Crown, and not with the claimant: Badger, at para. 41; R. v.
Sioui, [1990] 1 S.C.R. 1025, at p. 1061; Simon v. The Queen, [1985]
2 S.C.R. 387, at p. 406; Calder v. Attorney‑General of British
Columbia, [1973] S.C.R. 313, at p. 404. The Crown’s concession in this
regard is akin to it leading no evidence with respect to extinguishment,
insofar as it bears the burden of proof in this respect. The concession was
made at the beginning of trial, although the Crown’s own witness, Dr. Stephen
Patterson, presented contradictory evidence with respect to the validity of the
1725 Treaty. The defendants, Messrs. Sappier and Polchies, have rightly relied
on this concession since trial. It is fundamental to their defence that they
were not in unlawful possession of Crown timber because they were exercising a
valid treaty right to harvest timber for personal use.
64
Although I would not discourage concessions regarding the applicable law
in a criminal prosecution, the Crown’s concession in the present case has
important implications outside the Province of New Brunswick. The Treaty of
1725 was negotiated in Boston by the Penobscots and ratified by Mi’kmaq
representatives at Annapolis Royal, Nova Scotia, in 1726 (see W. C. Wicken, Mi’kmaq
Treaties on Trial (2002), at pp. 28, 86 and 89; S. E. Patterson, “Anatomy
of a Treaty: Nova Scotia’s First Native Treaty in Historical Context” (1999),
48 U.N.B.L.J. 41, at pp. 51 and 55). As New Brunswick was not recognized
as a separate colony until the partition of Nova Scotia in 1784, it was Nova
Scotia which negotiated on behalf of the British Crown with the aboriginal
peoples of the region: Patterson, at pp. 45-46. The precise boundaries of
British Nova Scotia following the 1713 Treaty of Utrecht, and the
intended geographic scope of the 1725 Treaty, are complex issues which have yet
to be historically or judicially resolved (see Wicken, at p. 101; Patterson, at
pp. 42-46). These issues, along with the validity of the 1725 Treaty, were
recently the subject of judicial consideration in the Province of Newfoundland
and Labrador. In Newfoundland v. Drew (2003), 228 Nfld. & P.E.I.R.
1, 2003 NLSCTD 105, the trial judge concluded that the 1725‑1726 Treaties
have no legal force insofar as they were terminated by subsequent hostilities
between the Mi’kmaq and the British. Alternatively, he held that the 1725 Treaty
by its express terms did not apply to Newfoundland, and that, in any event, the
scope of the Treaty should be interpreted as restricted to territory within the
jurisdiction of the Governor of Nova Scotia. An appeal from that judgment was
dismissed by the Newfoundland and Labrador Court of Appeal ((2006), 260 Nfld.
& P.E.I.R. 1, 2006 NLCA 53). I raise this case only to illustrate the
contentious nature of the Crown’s concession in the Sappier and Polchies trial
and its potential implications outside the Province of New Brunswick. I do not
wish to be taken as pronouncing on the validity or geographical scope of the
1725 Treaty.
65
Given the Court’s decision on the aboriginal rights issue, there is no
need to consider the treaty right claim in further detail.
6. Incorporation of Extrinsic Evidence
by the Court of Appeal
66
Before concluding, I wish to address the Crown’s argument that
Robertson J.A. on behalf of the Court of Appeal inappropriately
incorporated extrinsic evidence into his reasons for judgment. The dispute over
the alleged incorporation of extrinsic evidence arises partly out of Robertson
J.A.’s reasons in the Sappier and Polchies case:
The Crown admitted that the Treaty of 1725,
which includes the promises of Major Paul Mascarene and the ratifications of
1726 (hereafter the Mascarene Treaty) is valid and subsisting, and that
the defendants are beneficiaries of that Treaty. The historical
events leading up to and surrounding the signing of this “Peace and Friendship”
treaty are set out in R. v. Bernard (J.) (2003), 262 N.B.R. (2d) 1 . . .
(C.A.), and in Professor Patterson’s article, Anatomy of a Treaty: Nova
Scotia’s First Native Treaty in Historical Context (1999), 48 U.N.B.L.J.
41. [Emphasis added; para. 5.]
67
The Crown also objects to para. 19 of Robertson J.A.’s reasons in the Gray
decision:
Applying Sappier and Polchies, I agree with
the trial judge’s finding that the harvesting of trees for personal use was
integral to the Mi’kmaq’s distinctive culture. Just as hunting and fishing for
food are essential to survival, so too was the need for shelter to protect
against the natural elements and for fuel to generate sufficient warmth.
Moreover, the use of artifacts crafted from wood in pursuit of an aboriginal lifestyle
is well documented. One need only turn to the use of the canoe in aboriginal
societies in New Brunswick to appreciate the significance and importance of
trees. From the decision of this Court in Bernard at para. 370, we
know that at the time of contact with Europeans the Mi’kmaq were a hunting and
fishing people who migrated seasonally from their inland hunting grounds to the
coast for summer fishing. The reality that trees provided them with a practical
means of constructing a convenient mode of transport for purposes of traversing
New Brunswick’s intricate network of waterways is well‑documented.
Had the Mi’kmaq not harvested wood from time immemorial, surely that aboriginal
society would have been fundamentally altered. Finally, one cannot seriously
argue that the harvesting of wood for personal use was merely incidental or
marginal to the Mi’kmaq culture, in the sense that it was an activity that
occurred infrequently. History tells us otherwise: see Bernard at paras.
490, 495 and 497, in which the same findings were made of those Mi’kmaq
communities of the Miramichi. [Emphasis added.]
68
First, the Crown objects to Robertson J.A.’s reference to the findings
of fact made in the Bernard case, which was decided and released prior
to the Court of Appeal hearings in both of the cases at bar. Bernard was
released on August 28, 2003. The Sappier and Polchies hearing before the
Court of Appeal took place on February 11, 2004, while the Gray hearing
occurred on November 26, 2003. In other words, by the times the hearings
occurred in the cases at bar, the Bernard decision, including its
findings of fact, was in the public record and ought to have been known to the
Crown. Moreover, in the Sappier and Polchies decision, the reference to Bernard
is merely informative, given the Crown’s concession about the validity of
the 1725 Treaty. It is not operative in Robertson J.A.’s reasoning precisely
because the historical events leading up to the signing of the treaty were not
contentious.
69
Similarly, in the Gray decision, Robertson J.A. clearly stated
that he agreed with the trial judge’s finding that the harvesting of trees for
personal use was integral to the Mi’kmaq’s distinctive culture. The reference
to the Bernard decision and to its findings of fact in respect of the
Mi’kmaq communities of the Miramichi are merely offered in support of his
conclusion. In any event, the Crown concedes at para. 44 of its factum that
“wood was used in Mi’kmaq society to ensure survival”, and generally does not
take issue with the significance of wood and the many uses to which it was put
in pre‑contact Mi’kmaq society.
70
Second, the Crown also takes issue with Robertson J.A.’s reference to
Dr. Patterson’s article in the Sappier and Polchies reasons for judgment.
Dr. Patterson gave evidence at the Sappier and Polchies trial as the
Crown’s own witness. The article Robertson J.A. referred to was also referred
to by Dr. Patterson in his oral evidence. He offered to provide a copy to the
trial court. The Crown declined that invitation, noting it was unnecessary in
view of Dr. Patterson’s presence to provide oral testimony (A.R.,
vol. III, at pp. 392-93). In any event, the Crown conceded the validity of
the treaty. Dr. Patterson’s article is merely offered as a source of
information about the historical events surrounding the signing of the treaty,
as they are not addressed in the reasons as a result of the Crown’s concession.
71
Lamer J. (as he then was) relied on additional documents in Sioui
and took judicial notice of historical facts contained therein. Some of those
documents were put forth by the intervener in that case and others were
obtained by way of personal research. The Crown is correct to note, however,
that the parties in Sioui were provided with notice of these additional
documents. I would agree that it is generally wise not to incorporate evidence
submitted in other cases without disclosing it to the parties and allowing them
the possibility of challenging it or presenting contrary evidence. But because
the Bernard decision and Dr. Patterson’s article were in the public
record and well known to the Crown, and because the Crown has failed to allege
any material dispute or discrepancy as a result of this so-called incorporation
of extrinsic evidence, I respectfully conclude that extrinsic evidence was not
improperly incorporated into the learned judge’s reasons.
7. Conclusion
72
For the above reasons, I conclude that the respondents have made out the
defence of aboriginal right. The respondent Mr. Gray possesses an aboriginal
right to harvest wood for domestic uses on Crown lands traditionally used for
that purpose by members of the Pabineau First Nation. The respondents Messrs.
Sappier and Polchies possess an aboriginal right to harvest wood for domestic
uses. That right is also site-specific, such that its exercise is necessarily
limited to Crown lands traditionally harvested by members of the Woodstock
First Nation.
73
Accordingly, I would dismiss the appeals.
The following are the reasons delivered by
74
Binnie J. — I agree with my colleague, Bastarache J., about the disposition of
this appeal for the reasons he gives except, with respect, for his ruling that
[t]he harvested wood cannot be sold, traded or
bartered to produce assets or raise money. This is so even if the object of
such trade or barter is to finance the building of a dwelling. In other words,
although the right would permit the harvesting of timber to be used in the
construction of a dwelling, it is not the case that a right holder can sell the
wood in order to raise money to finance the purchase or construction of a
dwelling, or any of its components. [para. 25]
In aboriginal communities pre-contact, as in most societies, there
existed a division of labour. This should be reflected in a more flexible
concept of the exercise of aboriginal rights within modern aboriginal
communities, especially considering that the aboriginal right itself is
communal in nature. Barter (and, its modern equivalent, sale) within the
reserve or other local aboriginal community would reflect a more efficient use
of human resources than requiring all members of the reserve or other local
aboriginal community to which the right pertains to do everything for
themselves. They did not do so historically and they should not have to do so
now. On the one hand, it seems to me a Mi’kmaq or Maliseet should be able to
sell firewood to his or her aboriginal neighbour or barter it for, say, a side
of venison or roofing a house. On the other hand, I agree that trade, barter
or sale outside the reserve or other local aboriginal community would
represent a commercial activity outside the scope of the aboriginal right
established in this case. In other respects I agree with my colleague.
Appeals dismissed.
Solicitor for the appellant: Office of the Attorney
General, Fredericton.
Solicitors for the respondents Dale Sappier
and Clark Polchies: Barry Spalding, Saint John.
Solicitors for the respondent
Darrell Joseph Gray: Gaffney & Burke, Fredericton.
Solicitor for the intervener the Attorney General
of Canada: Attorney General of Canada, Vancouver.
Solicitor for the intervener the Attorney General
of Ontario: Office of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General
of Quebec: Department of Justice, Sainte‑Foy.
Solicitor for the intervener the Attorney General
of Nova Scotia: Department of Justice, Halifax.
Solicitors for the intervener the Attorney General
of British Columbia: Borden Ladner Gervais, Vancouver.
Solicitor for the intervener the Attorney General
of Alberta: Alberta Justice, Edmonton.
Solicitor for the intervener the Attorney General
of Newfoundland and Labrador: Department of Justice, St. John’s.
Solicitor for the intervener the Union of
New Brunswick Indians: Daniel R. Theriault,
Fredericton.
Solicitors for the intervener the Forest Products
Association of Nova Scotia: McInnes Cooper, Halifax.
Solicitors for the interveners Mi’gmawei Mawiomi
and the New Brunswick Aboriginal Peoples Council: Burchell, Hayman,
Parish, Halifax.
Solicitors for the intervener the Assembly of First
Nations: Pitblado, Winnipeg.
Solicitors for the intervener the
New Brunswick Forest Products Association: Osler, Hoskin &
Harcourt, Toronto.
Solicitor for the intervener the Assembly of
Nova Scotia Mi’kmaq Chiefs: Ronalda Murphy, Halifax.
Solicitors for the interveners the Okanagan Nation
Alliance and the Shuswap Nation Tribal Council: Mandell Pinder,
Vancouver.
Solicitors for the intervener the Congress of
Aboriginal Peoples: Paliare, Roland, Rosenberg, Rothstein, Toronto.
Solicitors for the interveners the Songhees Indian
Band, the Malahat First Nation, the T’Sou‑ke First Nation, the Snaw‑naw‑as
(Nanoose) First Nation and the Beecher Bay Indian Band (collectively Te’mexw
Nations): Cook, Roberts, Victoria.