R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), (2005) 336 N.R. 22 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, LeBel, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 20, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 336 N.R. 22 (SCC);2005 SCC 43;287 NBR (2d) 206;15 CELR (3d) 163;336 NR 22;255 DLR (4th) 1;JE 2005-1361;198 CCC (3d) 29;[2005] 3 CNLR 214;235 NSR (2d) 151;[2005] ACS no 44;141 ACWS (3d) 156;[2005] SCJ No 44 (QL);[2005] 2 SCR 220

R. v. Marshall (S.F.) (2005), 336 N.R. 22 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.R. TBEd. JL.004

Her Majesty The Queen (appellant/respondent on the cross-appeal) v. Stephen Frederick Marshall, Keith Lawrence Julien, Christopher James Paul, Jason Wayne Marr, Simon Joseph Wilmot, Donald Thomas Peterson, Stephen John Knockwood, Ivan Alexander Knockwood, Leander Philip Paul, William John Nevin, Roger Allan Ward, Mike Gordon Peter-Paul, John Michael Marr, Carl Joseph Sack, Matthew Emmett Peters, Stephen John Bernard, William Gould, Camillius Alex Jr., John Allan Bernard, Peter Alexander Bernard, Eric Stephen Knockwood, Gary Hirtle, Jerry Wayne Hirtle, Edward Joseph Peter-Paul, Angus Michael Googoo, Lawrence Eric Hammond, Thomas M. Howe, Daniel Joseph Johnson, Dominic George Johnson, James Bernard Johnson, Preston Macdonald, Kenneth M. Marshall, Stephen Maurice Peter-Paul, Leon R. Robinson and Phillip F. Young (respondents/appellants on the cross-appeal) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Forest Products Association of Nova Scotia, Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Congress of Aboriginal Peoples, Assembly of First Nations and Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively the Te'mexw Nations) (intervenors)

Her Majesty The Queen (appellant) v. Joshua Bernard (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, New Brunswick Forest Products Association, Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Congress of Aboriginal Peoples, Assembly of First Nations and Songhees Indian band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively the Te'mexw Nations) (intervenors)

(30005, 30063; 2005 SCC 43; 2005 CSC 43)

Indexed As: R. v. Marshall (S.F.) et al.; R. v. Bernard (J.)

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, LeBel, Fish, Abella and Charron, JJ.

July 20, 2005.

Summary:

The accused Mi'kmaq were charged with cutting and removing timber from Crown lands (Cape Breton and mainland Nova Scotia) without authorization contrary to s. 29 of the Crown Lands Act. The accused admitted cutting and removing timber for sale, but submitted that they had aboriginal title to all of Nova Scotia (including the cutting sites) or an aboriginal right to cut timber on Crown lands under the truckhouse clause in the 1760-61 treaties.

The Nova Scotia Provincial Court, in a judgment reported (2001), 191 N.S.R.(2d) 323; 596 A.P.R. 323, found the accused guilty. The Mi'kmaq of the 18th century on mainland Nova Scotia probably had aborig­inal title to lands around their local commun­ities, but not the areas comprising the cutting sites. There was insufficient evidence to conclude that the Mi'kmaq had aboriginal title to any lands in Cape Breton. Although the Royal Proclamation of 1763 applied to Nova Scotia, it provided no rights to the cutting areas. Finally, whatever gathering rights the treaties gave, they did not support an aboriginal right to commercially harvest timber. The accused appealed.

The Nova Scotia Supreme Court, in a judgment reported (2002), 202 N.S.R.(2d) 42; 632 A.P.R. 42, dismissed the appeal. The accused appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2003), 218 N.S.R.(2d) 78; 687 A.P.R. 78, allowed the appeal, set aside the convictions and ordered a new trial. Both courts applied wrong legal principles respecting treaty rights and aboriginal title. With respect to the claimed treaty rights, both courts asked the wrong question by inquiring whether the British and the Mi'kmaq contemplated a commercial harvest of trees for trade at the time of the 1760-61 treaties. To fall within the treaties, the activ­ity giving rise to the charges must be tradi­tional Mi'kmaq gathering or its logical evolution and the resource must be of a type traditionally gathered or its logical evolution. If these conditions were met, there was a treaty right to trade the fruits of the resource gathering to earn a moderate livelihood, subject to justified limitations and issues of extinguishment. With respect to aboriginal title, the courts erred by insisting on evi­dence of intensive, regular use of the cutting sites, rather than asking simply whether there was sufficient evidence of occupation over a territory that included the cutting sites.

In a parallel New Brunswick case, a Mira­michi Mi'kmaq (Bernard) was charged with unlawful possession of timber cut from Crown lands, contrary to s. 67(1)(c) of the Crown Lands and Forests Act. Bernard also invoked a treaty right to commercially log and claimed aboriginal title.

The New Brunswick Provincial Court, in a decision reported [2000] 3 C.N.L.R. 184, found Bernard guilty. Bernard appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment report­ed (2001), 239 N.B.R.(2d) 173; 619 A.P.R. 173, dismissed the appeal. Bernard applied for leave to appeal.

The New Brunswick Court of Appeal, in a judgment reported (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1, granted leave. The court, Deschênes, J.A., dissenting, allowed the ap­peal and acquitted Bernard. The majority accepted a treaty right to log commercially. As for aboriginal title, Daigle, J.A., accepted it and Robertson, J.A., did not decide the is­sue. Deschênes, J.A., dissenting, declined to intervene in the decisions of the lower courts that rejected both defences. In both cases, the Crown appealed. In the Marshall case, the accused cross-appealed. The appeals were heard and decided together.

The Supreme Court of Canada allowed the Crown appeals, dismissed the cross-appeal and restored the convictions. In each case, the trial judges correctly held that there was no treaty right to log commercially and cor­rectly rejected the aboriginal title claims to the relevant cutting areas.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Ef­fect of - Source of aboriginal rights - [See second Indians, Inuit and Métis - Topic 5568 ].

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - General - Where applicable - The Supreme Court of Canada agreed that the Royal Proclamation of 1763 did not reserve to the Mi'kmaq all unceded, unpurchased land in Nova Scotia - See paragraph 96.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - In­ter­pretation - The Supreme Court of Can­ada stated that the Royal Proclamation of 1763 was to be interpreted liberally, with doubtful expression resolved in favour of aboriginals - See paragraph 86.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evi­dence and proof - The Supreme Court of Can­ada stated that "underlying all these issues is the need for a sensitive and gener­ous approach to the evidence tendered to establish aboriginal rights, be they the right to title or lesser rights to fish, hunt or gather. Aboriginal peoples did not write down events in their pre-sovereignty his­tories. Therefore, orally transmitted history must be accepted, provided the conditions of usefulness and reasonable reliability set out in Mitchell v. M.N.R., [2001] 1 S.C.R. 911; 2001 SCC 33, are respected. Useful­ness asks whether the oral history provides evidence that would not otherwise be avail­able or evidence of the aboriginal perspective on the right claimed. Reason­able reliability ensures that the witness represents a credible source of the particu­lar people's history. In determining the use­fulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts. The evidence, oral and documentary, must be evaluated from the aboriginal perspective." - See paragraphs 68 to 69.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - Mi'kmaq in Nova Sco­tia and New Brunswick claimed aborig­inal title to cutting sites where they pres­ently logged commercially - The trial judges in both cases rejected aboriginal title absent proof of regular and exclusive use of the cutting sites - Both Courts of Appeal rejected the test as too strict, choosing to apply a less onerous standard of incidental or proximate occupancy - The Supreme Court of Canada stated that "ex­clusive possession in the sense of intention and capacity to control is required to estab­lish aboriginal title. Typically, this is estab­lished by showing regular occupancy or use of definite tracts of land for hunting, fish­ing or exploiting resources ... Less intensive uses may give rise to different rights. The requirement of physical occu­pation must be generously interpreted tak­ing into account both the aboriginal per­spective and the perspective of the com­mon law ... These principles apply to noma­dic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the group's descent from the pre-sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and rea­sonable reliability. The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved." - See paragraph 70.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - The accused Mi'kmaq claimed aboriginal title to all of Nova Scotia - The trial judge held that the Mi'kmaq of the 18th century on mainland Nova Scotia probably had aboriginal title to lands around their local communities, but not any lands in Cape Breton or else­where in the province - In a parallel case in New Brunswick, the trial judge held that a Miramichi Mi'kmaq had no aboriginal title to a cutting site in that province - Both trial judges applied a test requiring proof of regular, intensive use of specific land that included logging sites - The sources of aboriginal title were alleged to be: (1) Governor Belcher's Proclamation of 1762; (2) the Royal Proclamation of 1763; and (3) the common law, being exclusive occupation at the time of British sover­eignty in 1759 - The Supreme Court of Cana­da held that the trial judges were correct in finding that aboriginal title was not established - There was insufficient regular and exclusive use of the cutting sites to ground common law title - There could be no aboriginal title under the Royal Proclamation of 1763, as the Procla­mation did not reserve to the Mi'kmaq all unceded, unpurchased land in Nova Scotia and New Brunswick - Finally, Governor Belcher's Proclamation, whatever its legal effect, was limited to coastal areas and "hunting, fowling and fishing" - See para­graphs 37 to 106.

Indians, Inuit and Métis - Topic 6025

Particular aboriginal or treaty rights - Harvesting trees - In the truckhouse clause in the treaties of 1760-61, applicable to both Nova Scotia and New Brunswick Mi'kmaq, the British agreed to provide trading posts and the Mi'kmaq agreed to sell their commodities only to the British at those posts - The clause had previously been interpreted to permit the Mi'kmaq to engage in traditional trade activities to earn a moderate livelihood - The Supreme Court of Canada held that the treaties did not give an aboriginal right to log com­mercially - The truckhouse clause was a trade clause, not a harvesting clause - The court stated that "nothing in those words comports a general right to harvest or gather all natural resources then used. ... what the treaty protects is not the right to harvest and dispose of particular commod­i­ties, but the right to practice a traditional 1760 trading activity in the modern way and modern context. The question is whether the logging here at issue is the logical evolution of a traditional Mi'kmaq trade activity ... I conclude that the evi­dence supports the trial judge's conclusion that the commercial logging that formed the basis of the charges against the respon­dents was not the logical evolution of tra­ditional Mi'kmaq trading activity pro­tected by the treaties of 1760-61." - See para­graphs 7 to 36.

Indians, Inuit and Métis - Topic 6026

Particular aboriginal or treaty rights - Trade - [See Indians, Inuit and Métis - Topic 6025 ].

Cases Noticed:

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. [paras. 7, 114].

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. [paras. 11, 115].

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, refd to. [paras. 38, 129].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 38].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 39].

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. [paras. 40, 129].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [paras. 53, 140].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 53].

Powell v. McFarlane (1979), 38 P. & C.R. 452 (Ch. D.), refd to. [para. 54].

Red House Farms (Thorndon) Ltd. v. Catchpole, [1977] E.G.D. 798, refd to. [para. 54].

Keefer v. Arillotta (1976), 13 O.R.(2d) 680 (C.A.), refd to. [para. 54].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [paras. 68, 133].

Nowegijick v. Minister of National Reve­nue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 86].

R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 1 Q.B. 892 (C.A.), refd to. [para. 86].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 94].

Calder v. British Columbia (Attorney Gen­er­al), [1973] S.C.R. 313, refd to. [para. 132].

St. Catharines Milling and Lumber Co. v. R. (1887), 13 S.C.R. 577, refd to. [para. 135].

Authors and Works Noticed:

Borrows, John C., Creating an Indigenous Legal Community (2005), 50 McGill L.J. 153, p. 173 [paras. 128, 130].

Canadian Archives, Documents Relating to the Constitutional History of Canada 1759-1791 (1918) (2nd Rev. Ed.), Part I, p. 135 [para. 95].

Hepburn, Samantha, Feudal Tenure and Native Title: Revising an Enduring Fic­tion (2005), 27 Sydney L. Rev. 49, gen­erally [para. 127].

McNeil, Kent, Common Law Aboriginal Title (1989), p. 204 [para. 57].

Counsel:

Alexander M. Cameron, William D. De­laney and James Clarke, for the appel­lant/respondent on the cross-appeal in the Marshall case and the intervenor, Attor­ney General of Nova Scotia;

William B. Richards, Pierre Castonguay, Sylvain Lussier and Iain R. W. Hollett, for the appellant in the Bernard case and the intervenor, Attorney General of New Brunswick;

Bruce H. Wildsmith, Q.C., and Eric A. Zscheile, for the respondents/appellants on the cross-appeal in Marshall and the respondent in Bernard;

Mitchell R. Taylor and Charlotte Bell, Q.C., for the intervenor, Attorney Gen­eral of Canada;

Robert H. Ratcliffe and Mark Crow, for the intervenor, Attorney General of Ontario;

René Morin, for the intervenor, Attorney General of Quebec;

John J.L. Hunter, Q.C., for the intervenor, Attorney General of British Columbia;

Robert J. Normey and Donald Kruk, for the intervenor, Attorney General of Alberta;

Donald H. Burrage, Q.C., and Justin S.C. Mellor, for the intervenor, Attorney General of Newfoundland and Labrador;

Thomas E. Hart and Harvey L. Morrison, Q.C., for the intervenor, Forest Products Association of Nova Scotia;

D. Bruce Clarke, for the intervenors, Kep­tin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), Native Council of Nova Scotia and New Brunswick Aboriginal Peoples Council;

Andrew K. Lokan and Joseph E. Magnet, for the intervenor, Congress of Aborig­inal Peoples;

Bryan P. Schwartz and Candice Metallic, for the intervenor, Assembly of First Nations;

Robert J.M. Janes and Dominique Nouvet, for the intervenors, Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations);

Daniel R. Theriault, for the intervenor, Union of New Brunswick Indians;

Mahmud Jamal and Neil Paris, for the intervenor, New Brunswick Forest Prod­ucts Association.

Solicitors of Record:

Department of Justice, Halifax, N.S., for the appellant/respondent on the cross-appeal in the Marshall case and the intervenor, Attorney General of Nova Scotia;

Attorney General of New Brunswick, Fredericton, N.B., for the appellant in the Bernard case and the intervenor, Attor­ney General of New Brunswick;

Bruce H. Wildsmith, Q.C., and Eric A. Zscheile, Barss Corner, N.S., for the respondents/appellants on the cross-appeal in Marshall and respondent in Bernard;

Department of Justice, Vancouver, B.C., for the intervenor, Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Hunter Voith Litigation Counsel, Van­couv­er, B.C., for the intervenor, Attorney Gen­eral of British Columbia;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

Department of Justice, St. John's, Nfld. & Lab., for the intervenor, Attorney Gen­eral of Newfoundland and Labrador;

McInnes Cooper, Halifax, N.S., for the intervenor, Forest Products Association of Nova Scotia;

Burchell Hayman Parish, Halifax, N.S., for the intervenors, Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), Native Council of Nova Scotia and New Brunswick Aboriginal Peoples Council;

Paliare Roland Rosenberg Rothstein, Toronto, Ontario; Joseph E. Magnet, Ottawa, Ontario, for the intervenor, Congress of Aboriginal Peoples;

Pitblado, Winnipeg, Manitoba, for the intervenor, Assembly of First Nations;

Cook Roberts, Victoria, B.C., for the intervenors, Songhees Indian Band, Mal­ahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively the Te'mexw Nations);

Daniel R. Theriault, Fredericton, N.B., for the intervenor, Union of New Brunswick Indians;

Osler, Hoskin & Harcourt, Toronto, On­tar­io, for the intervenor, New Bruns­wick Forest Products Association.

These appeals were heard on January 17-18, 2005, before McLachlin, C.J.C., Major, Bastarache, LeBel, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On July 20, 2005, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C. (Major, Bastarache, Abella and Charron, concurring) - see paragraphs 1 to 109;

LeBel, J. (Fish, J., concurring) - see paragraphs 110 to 145.