Newfoundland v. Drew et al., 2006 NLCA 53

• Judge: Cameron, Roberts and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 11, 2006
• Jurisdiction: Newfoundland and Labrador
• Citations: 2006 NLCA 53;(2006), 260 Nfld. & P.E.I.R. 1 (NLCA)

Nfld. v. Drew (2006), 260 Nfld. & P.E.I.R. 1 (NLCA);

    786 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. OC.010

Ken Drew, Wilfred John, Larry John, Ralph John and Wilfred Drew (appellants/respondents by cross-appeal) v. Her Majesty The Queen in Right of Newfoundland and Labrador, as represented by the Minister of Government Services and Lands (respondent) and Corner Brook Pulp and Paper Limited (intervenor/appellant by cross-appeal)

(03/80; 03/82; 2006 NLCA 53)

Indexed As: Newfoundland v. Drew et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Cameron, Roberts and Mercer, JJ.A.

October 11, 2006.

Summary:

The defendants were members of the Mi'kmaq reserve at Conne River, Nfld., who maintained hunting cabins in the Bay du Nord Wilderness Area. The Province, pursuant to s. 30(b) of the Lands Act, sought an order (1) declaring the defendants to be in wrongful possession of Crown lands and (2) for removal of the hunting cabins. The defendants claimed an aboriginal right to hunt, fish and trap in an area, including the Wilderness Area, comprising 21% of Newfoundland. The claim was based on fishing, hunting and trapping in the area as a distinctive cultural feature in the period before contact with Europeans. The defendants also claimed treaty rights to hunt, fish and trap for sustenance and to earn a "moderate livelihood" over an area comprising 50% of Newfoundland, basing their claims on treaties in 1725, 1752, 1759 and 1761. The intervenors (pulp and paper companies) submitted that any aboriginal or treaty rights acquired by the Mi'kmaq had been extinguished by legislation prior to Newfoundland becoming a province in 1949.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2003), 228 Nfld. & P.E.I.R. 1; 678 A.P.R. 1, held that the defendants failed to establish an aboriginal right to hunt, fish and trap in the territory claimed. The defendants' ancestors arrived in Newfoundland some time after the first contact with Europeans, which was estimated to be around 1550. Accordingly, the European contact and influences precluded their hunting, fishing and trapping practices from attaining aboriginal rights status. Even if the defendants' ancestors were present in Newfoundland in the pre-contact period, it was not proved on a balance of probabilities that they hunted, fished or trapped in the area over which aboriginal rights were claimed. The court further held that there were no treaty rights established. The 1725 treaty did not apply to Newfoundland. It was restricted to Nova Scotia and, in any event, had been terminated by subsequent hostilities between the English and the Mi'kmaq. The 1752 treaty was limited to the Shubenacadie Band in Nova Scotia. It did not apply to Newfoundland and it too was terminated by subsequent hostilities. The 1759 treaty did not deal with hunting or fishing rights. It was limited to an oath of allegiance to the British Crown. Finally, the 1761 treaty also did not apply to Newfoundland. The court held that because no aboriginal or treaty rights were established, it was unnecessary to determine the issue of extinguishment. The court granted an order under the Lands Act that the hunting cabins be removed, as the defendants were in wrongful possession of Crown lands. The defendants appealed, submitting, inter alia, that the trial judge erred in applying the Van der Peet test of presence in Newfoundland at the time of contact with Europeans (1550). The defendants argued that subsequent Supreme Court of Canada cases, and the requirements of s. 35(1) of the Constitution Act, modified the test to the date of effective sovereignty (1763). The defendants, although dropping reliance on the 1725 and 1752 treaties, also submitted that the trial judge erred in interpreting the geographic and territorial scope of the remaining treaties. One of the intervenor pulp and paper companies cross-appealed, submitting that if the defendants had acquired any aboriginal rights to fish, hunt and trap, such rights had been extinguished by pre-1949 legislation.

The Newfoundland and Labrador Court of Appeal dismissed both the appeal and the cross-appeal. The court rejected the submission that the Van de Peet pre-contact test had been, or should be, modified. Accordingly, the lack of pre-contact presence in Newfoundland precluded an aboriginal right to fish, hunt and trap in the claimed area. Further, the trial judge did not err in finding that the treaties relied on either did not apply or did not extend their geographic scope to Newfoundland. Like the trial judge, the Court of Appeal found it unnecessary to resolve the extinguishment issue.

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - General - Where applicable - The defendants were members of the Mi'kmaq reserve at Conne River, Nfld., who maintained hunting cabins in the Bay du Nord Wilderness Area - The Province, pursuant to s. 30(b) of the Lands Act, sought an order (1) declaring the defendants to be in wrongful possession of Crown lands and (2) for removal of the hunting cabins - The defendants claimed treaty rights to hunt, fish and trap to earn a "moderate livelihood" over an area comprising 50% of Newfoundland, basing their claims on treaties in 1725, 1752, 1759 and 1761 - The trial judge held that there were no treaty rights established - The 1725 treaty did not apply to Newfoundland - It was restricted to Nova Scotia and, in any event, had been terminated by subsequent hostilities between the English and the Mi'kmaq - The 1752 treaty was limited to the Shubenacadie Band in Nova Scotia - It did not apply to Newfoundland and it too was terminated by subsequent hostilities - The 1759 treaty did not deal with hunting or fishing rights - It was limited to an oath of allegiance to the British Crown - Finally, the geographic scope of the 1761 treaty did not extend to Newfoundland - The defendants appealed, dropping reliance on the 1725 and 1752 treaties - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The 1759 treaty (and its renewal in 1763) did not address fishing, hunting and trapping rights and, even if its did, its geographic scope did not extend to Newfoundland - Although the defendants could invoke the truckhouse clause of the 1761 treaty, that treaty's geographic scope also did not extend to Newfoundland - Prior to 1761, Newfoundland was not the traditional territory of the Mi'kmaq - See paragraphs 82 to 270.

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - General - Where applicable - The Newfoundland and Labrador Court of Appeal stated that "the geographic scope of treaty rights which have a territorial aspect is not ascertained solely by determining the area 'traditionally used' or 'frequented' by the aboriginal community on the date of the treaty. That issue is resolved by determining the intention of both parties when the treaty was concluded. Where there are various possible interpretations of that intention the court must choose the one that best reconciles the aboriginal interests and those of the Crown. In determining the intention of the parties evidence that an area was traditionally used or frequented is clearly relevant respecting a treaty's geographic scope but not conclusive. There may be other cogent evidence respecting the intention of the parties on that matter." - See paragraph 107.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - [See Indians, Inuit and Métis - Topic 6018 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Newfoundland and Labrador Court of Appeal set out the principles of treaty interpretation as stated by the Supreme Court of Canada: "1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation. 2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories. 3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed. 4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed. 5. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties. 6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time. 7. A technical or contractual interpretation of treaty wording should be avoided. 8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what 'is possible on the language' or realistic. 9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context." - See paragraph 97.

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - The trial judge stated that "an aboriginal right is defined as any custom, practice or tradition that is an integral or defining feature of a particular culture that can be shown to have pre-contact origins" - Further, claimants must "establish on a balance of probabilities that their hunting, fishing or trapping practices, customs or traditions in the territory have continuity with practices, customs and traditions that existed before the [claimants'] ancestors had contact with Europeans. Where the practice, tradition or custom utilized European technology or arose solely as a response to European influence, that practice, tradition or custom will not meet the standard for recognition of an aboriginal right" - "Contact" with Europeans did not require "use, occupation or administration" of the territory by Europeans, nor did it require "sovereignty" - The time of "contact" was selected to ensure that aboriginal rights were in fact "aboriginal" and not influenced by European customs - The judge stated that "'sovereignty' and 'contact' are two conceptually distinct ideas, with the latter applying to aboriginal rights and the former to aboriginal title" - On appeal, the Newfoundland and Labrador Court of Appeal rejected the submission that the "pre-contact" Van der Peet test of presence in Newfoundland at the time of contact with Europeans (1550) had been modified (by subsequent Supreme Court of Canada decisions and the requirements of s. 35(1) of the Constitution Act, 1982) to the date of effective sovereignty (1763) - The Supreme Court of Canada had consistently confirmed the Van der Peet pre-contact test - See paragraphs 43 to 72.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - The defendants were members of the Mi'kmaq reserve at Conne River, Nfld., who maintained hunting cabins in the Bay du Nord Wilderness Area - The Province, pursuant to s. 30(b) of the Lands Act, sought an order (1) declaring the defendants to be in wrongful possession of Crown lands and (2) for removal of the hunting cabins - The defendants claimed an aboriginal right to hunt, fish and trap in an area, including the Wilderness Area, comprising 21% of Newfoundland - The claim was based on fishing, hunting and trapping in the area as a distinctive cultural feature in the period before contact with Europeans - The trial judge held that the defendants failed to establish an aboriginal right to hunt, fish and trap in the territory claimed - The defendants' ancestors arrived in Newfoundland some time after first contact with Europeans (around 1550) - Accordingly, the European contact and influences precluded their hunting, fishing and trapping practices from attaining aboriginal rights status - Even if the defendants' ancestors were present in Newfoundland in the pre-contact period, they failed to prove on a balance of probabilities that they hunted, fished or trapped in the area over which aboriginal rights were claimed - The Newfoundland and Labrador Court of Appeal held that the trial judge made no palpable or overriding error warranting appellate intervention - See paragraphs 16 to 81.

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - The Newfoundland and Labrador Court of Appeal stated that "s. 35(1) of the Constitution Act, 1982, recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. 'Existing' in that context means unextinguished. ... The onus of proving that a treaty or aboriginal right has been extinguished lies upon the party asserting that proposition, usually but not necessarily the Crown. 'There must be"strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights.' For legislation to have extinguished an aboriginal or treaty right it need not have expressly stated that such was its purpose. The legislation or acts authorized thereunder must, however, be incompatible with the continued existence of the right held by the aboriginal community. ... Thus there can be extinguishment by necessary implication." - See paragraphs 272 to 274.

Cases Noticed:

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, folld. [para. 9].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 11].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, refd to. [para. 12].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 12, footnote 2].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 12, footnote 3].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 12].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 12].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 36].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 44].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 44].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201, refd to. [para. 44].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 235 N.S.R.(2d) 151; 747 A.P.R. 151, refd to. [para. 44].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 45].

Mitchell v. Minister of National Revenue (1997), 134 F.T.R. 1 (T.D.), refd to. [para. 53, footnote 23].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 83].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 94].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 96, footnote 44].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 99, footnote 97].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), affd. (1965), 52 D.L.R.(2d) 481 (S.C.C.), refd to. [para. 101].

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan (2001), 213 Sask.R. 1; 260 W.A.C. 1; 206 D.L.R.(4th) 638 (C.A.), refd to. [para. 108].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 109].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 221].

R. v. Taylor and Williams (1981), 62 C.C.C.(2d) 227 (Ont. C.A.), refd to. [para. 251].

R. v. Marshall (S.F.) et al. (2001), 191 N.S.R.(2d) 323; 596 A.P.R. 323 (Prov. Ct.), refd to. [para. 263, footnote 177].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 274].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 18].

Authors and Works Noticed:

Archer, Gabriel, The Relation of Captaine Gosnols Voyage to the North part of Virginia, begunne the sixe and twentieth of March, Anno. 42. Elizabetha Reginae 1602, and delivered by Gabriel Archer, a Gentleman in the said Voyage, in Purchas, Samuel, Hakluytus Posthumus or Purchas His Pilgrimes (1906), vol. 18, p. 304 [para. 32, footnote 17].

Biggar, Henry P., The Works of Samuel de Champlain (1933), vol. 5, p. 160 [para. 31, footnote 16].

Calloway, Colin G., New Worlds for All: Indians, Europeans and the Remaking of Early America (1997), p. 184 [para. 51, footnote 22].

Hoffman, Bernard G., Account of a Voyage Conducted in 1529 to the New World, Africa, Madagascar and Sumatra, Translated from the Italian, with Notes and Comments (1963), 10 Ethnohistory 1, pp. 13, 14 [para. 26, footnote 10].

Horton, Andrea, and Mohr, Christine, R. v. Powley: Dodging Van der Peet to recognize Metis Rights (2005), 30 Queen's L.J. 772, p. 772 [para. 67, footnote 27].

Lescarbot, Marc, The Conversion of the Savages who have been baptized in New France during this year, 1610, in Thwaites, Rueben Gold, The Jesuit Relations and Allied Documents: Travels and Explorations of the Jesuit Missionaries in New France 1610-1791 (1959), vol. 1, pp. 71, 73 [para. 28, footnote 12]; 83 [para. 29, footnote 13]; vol. 2, p. 67 [para. 31, footnote 15]; vol. 3, pp. 109, 111 [para. 30, footnote 14].

Martijn, Charles A., Historical Review, in "Netukleuk" (On the Country): Miawpukek Mi'Kamawey Mawi'omi Land Claim and Self-Government Submission (1996), p. 4, para. 5.3.3 [para. 27, footnote 11].

Purchas, Samuel, Hakluytus Posthumus or Purchas His Pilgrimes (1906), vol. 18, p. 304 [para. 32, footnote 17].

Slattery, Brian, Making Sense of Aboriginal and Treaty Rights (2000), 79 Can. Bar Rev. 196, pp. 217, 218 [para. 50, footnote 21].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, generally [para. 50, footnote 20].

Thompson, Samuel, Answers to the Queries of the Board of Trade (1763), Greenwich, National Maritime Museum, Graves Papers/105, f. (46) [para. 135, footnote 77]; Graves Papers/106(46) [para. 134, footnote 76].

Thwaites, Rueben Gold, The Jesuit Relations and Allied Documents: Travels and Explorations of the Jesuit Missionaries in New France 1610-1791 (1959), vol. 1, pp. 71, 73 [para. 28, footnote 12]; 83 [para. 29, footnote 13]; vol. 2, p. 67 [para. 31, footnote 15]; vol. 3, pp. 109, 111 [para. 30, footnote 14].

Counsel:

Robert Mathews, Q.C., and Shayne McDonald, for the appellants/respondents by cross-appeal;

Donald Burrage, Q.C., and Edward Hearn, Q.C., for the respondent;

James Thistle, Q.C., for the intervenor, appellant by cross-appeal.

This appeal and cross-appeal were heard on January 23-26, 30-31, and February 1, 2 and 6, 2006, before Cameron, Roberts and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On October 11, 2006, the following judgment was delivered by the Court.