R. v. Marshall (S.F.) et al., (2003) 218 N.S.R.(2d) 78 (CA)

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 10, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 218 N.S.R.(2d) 78 (CA);2003 NSCA 105

R. v. Marshall (S.F.) (2003), 218 N.S.R.(2d) 78 (CA);

 687 A.P.R. 78

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. NO.025

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 (appellants) v. Her Majesty The Queen (respondent)

(CAC 178066; 2003 NSCA 105)

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

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

October 10, 2003.

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), title under the Royal Proclamation of 1763 or an aboriginal right to cut timber on Crown lands under 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 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.

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - Accused submitted that the court should not rely on statements by the Supreme Court of Canada that were obiter and were inconsistent with an earlier Supreme Court decision - The Nova Scotia Court of Appeal held that the statement was a unanimous ruling by a six member panel of the court that was clear and unequivocal - The court stated that "it is not open to us, as an intermediate appellate court, to ignore or fail to follow the law as clearly set out by the Supreme Court of Canada, even if we were to be persuaded that its holding is inconsistent with previous decisions or that the court denied natural justice to the litigants by making the pronouncements it did" - See paragraphs 27 to 28.

Evidence - Topic 7067

Opinion evidence - Expert evidence - Particular matters - Historical fact findings - A Summary Conviction Appeal Court held that a Provincial Court judge erred in ruling that he was bound by factual findings in previous cases that all Mi'kmaq bands in N.S. signed treaties in 1760-61 - Further reflection showed that the issue was not squarely before the court in the previous cases - Additionally, historians were constantly locating old documents shedding light on Nova Scotia history - The court stated that "findings of historical fact must be recognized as being fluid, not frozen in time. If the courts refused to accept information as discovered by historians from time to time then decisions would soon become something of a fallacy unto themselves denying what may be convincing evidence recently unearthed or discovered by historians. ... It is implicit in any decision that involves historical findings of fact, that the finding is based on the evidence then before the court. So long as the materials available do not materially and substantially change, litigants can expect that subsequent cases will follow the reasoning as established in earlier historical cases. There is no rule of law however which requires a court to ignore or exclude evidence so as to be consistent with an earlier case which may have been decided on incomplete historical evidence." - The Nova Scotia Court of Appeal agreed - See paragraph 39.

Indians, Inuit and Métis - Topic 4408

Treaties and proclamations - General - When applicable - The Nova Scotia Court of Appeal rejected the submission that the Royal Proclamation of 1763 reserved to the Mi'kmaq all unceded, unpurchased land in Nova Scotia - See paragraphs 196 to 235.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - [See Indians, Inuit and Métis - Topic 5570 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Nova Scotia Court of Appeal stated that the Royal Proclamation of 1763 should be interpreted liberally, with doubtful expression resolved in favour of aboriginals - See paragraphs 202 to 203.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence and proof - The Nova Scotia Court of Appeal stated that "where the claimant of a treaty right relies on the exercise of that right in answer to a prosecution, the claimant is obliged to show that his or her actions giving rise to the charge were carried out with the authority of the aboriginal community of which he or she is a member and within that community's traditional authority" - See paragraph 29.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence and proof - [See Evidence - Topic 7067 ].

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 - Both the trial judge, and the summary appeal court judge in dismissing an appeal, applied a test requiring proof of regular, intensive use of specific land that included logging sites - The Nova Scotia Court of Appeal ordered a new trial - The courts below applied wrong legal principles - With respect to aboriginal title, the correct test was whether there was sufficient evidence of exclusive occupation at the date of sovereignty over a territory that included the cutting sites - Proof of regular, intensive use of specific cutting sites was not required - The court stated that "where ... we are dealing with a large expanse of territory which was not cultivated, acts such as continual, though changing, settlement and wide-ranging use for fishing, hunting and gathering should be given more weight than they would be if dealing with enclosed, cultivated land. Perhaps most significantly ... it is impossible to confine the evidence to the very precise spot on which the cutting was done. ... Instead, the question must be whether the acts of occupation in particular areas show that the whole area was occupied by the claimant" - Further, "continuity of occupation from sovereignty to the present is not part of the test for aboriginal title if exclusive occupation at sovereignty is established by direct evidence of occupation before and at the time of sovereignty" - See paragraphs 100 to 186.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - The Nova Scotia Court of Appeal rejected that submission that moderately nomadic people could not generally establish aboriginal title - See paragraphs 187 to 194.

Indians, Inuit and Métis - Topic 5570

Land - Land claims - Aboriginal title - Extinguishment - The Crown submitted that if aboriginal title was extinguished, it followed that treaty rights relating to that land would necessarily be extinguished as well - The Nova Scotia Court of Appeal rejected the submission - Aboriginal rights were "freestanding", not dependent upon aboriginal title - The same was true of treaty rights - The court stated that "acts sufficient to extinguish title are not necessarily sufficient to extinguish treaty rights that may be exercisable on the land" - See paragraphs 67 to 68.

Indians, Inuit and Métis - Topic 6018

Particular aboriginal or treaty rights - Extinguishment - The Crown submitted that any treaty right to cut trees on Crown land for trade had been extinguished by two statutes (1774 and 1859) - The Nova Scotia Court of Appeal rejected the submission - Neither statute provided "strict proof of the fact of extinguishment" or evidence of "a clear and plain intention on the part of the government to extinguish treaty rights" - The statutes provided for regulation, not extinguishment - See paragraphs 64 to 66.

Indians, Inuit and Métis - Topic 6025

Particular aboriginal or treaty rights - Harvesting trees - The accused Mi'kmaq were charged under s. 29 of the Crown Lands Act with cutting and removing timber from Crown lands without authorization - The accused admitted cutting and removing timber for sale, but submitted that they had a treaty right to harvest timber - The trial judge found the accused guilty, finding that whatever gathering rights the treaties gave, they did not support an aboriginal right to commercially harvest timber - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial - The courts below applied wrong legal principles respecting 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 - See paragraphs 24 to 69.

Cases Noticed:

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. 12, 263].

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. 21].

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. 21].

R. v. Marshall, [1996] N.S.J. No. 246 (Prov. Ct.), refd to. [para. 35].

R. v. Bernard (J.) (2001), 239 N.B.R.(2d) 173; 619 A.P.R. 173 (Q.B.), revd. (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1 (C.A.), refd to. [paras. 54, 355].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 68].

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. 71].

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; [1996] 4 C.N.L.R. 177, refd to. [paras. 89, 272].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 90].

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. 98].

R. v. Sellars, [1980] 1 S.C.R. 527; 32 N.R. 70, refd to. [para. 98].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 106].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 123].

United States v. Santa Fe Pacific Railway Co. (1941), 314 U.S. 339, refd to. [para. 123].

Ontario (Attorney General) v. Bear Island Foundation et al., [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396; 83 D.L.R.(4th) 381, refd to. [para. 123].

Wuta-Ofei v. Danquah, [1961] 3 All E.R. 596 (P.C.), refd to. [para. 124].

St. Clair Beach Estates Ltd. v. MacDonald et al. (1974), 5 O.R.(2d) 482 (Div. Ct.), refd to. [para. 126].

Jones v. Williams (1837), 2 M. & W. 326, refd to. [para. 127].

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. 173].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [paras. 176, 311].

Mabo v. Queensland (No. 2) (1992), 175 C.L.R. 1 (Aust. H.C.), refd to. [para. 178].

R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892; [1982] 2 All E.R. 118 (C.A.), refd to. [para. 202].

St. Catherine's Milling and Lumber Co. v. R. (1887), 13 S.C.R. 577, affd. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 202].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 203].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 203].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 222].

R. v. Côté (1993), 107 D.L.R.(4th) 28 (Que. C.A.), refd to. [para. 223].

R. v. Isaac (1975), 13 N.S.R.(2d) 460; 9 A.P.R. 460 (C.A.), refd to. [para. 225].

Labrador Boundary, Re, [1927] 2 D.L.R. 401 (P.C.), refd to. [para. 226].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 250].

R. v. Salajko, [1970] 1 C.C.C. 352 (Ont. C.A.), refd to. [para. 252].

Newfoundland v. Drew et al. (2003), 228 Nfld. & P.E.I.R. 1; 678 A.P.R. 1 (Nfld. & Lab. T.D.), refd to. [paras. 255, 355].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 271].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 273].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 285].

R. v. Eisenhauer (D.M.) (1998), 165 N.S.R.(2d) 81; 495 A.P.R. 81; 123 C.C.C.(3d) 37 (C.A.), refd to. [para. 285].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 313].

R. v. Gardner (A.) - see R. v. Pamajewon (H.) et al.

R. v. Jones (R.) - see R. v. Pamajewon (H.) et al.

R. v. Peter-Paul (T.) (1998), 196 N.B.R.(2d) 292; 501 A.P.R. 292 (C.A.), refd to. [para. 314].

R. v. Paul (V.) et al. (2003), 261 N.B.R.(2d) 177; 685 A.P.R. 177 (C.A.), refd to. [para. 355].

R. v. Sockabasin (L.) - see R. v. Paul (V.) et al.

R. v. Haslam (1990), 56 C.C.C.(3d) 491 (B.C.C.A.), refd to. [para. 356].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Property (2nd Ed. 1985), vol. 2, pp. 1516 [paras. 124, 128]; 1517 [paras. 125, 130]; 1518 [para. 130].

Cheshire and Burn, Modern Law of Real Property (14th Ed. 1988), p. 28 [para. 120].

Halsbury's Laws of England (4th Ed. 1985), vol. 45, p. 636, para. 1394 [paras. 123, 125].

McNeil, Kent, Common Law Aboriginal Title (1989), pp. 6, 7, 8 [para. 119]; 73 [paras. 121, 133]; 74, 75 [para. 121]; 197 [para. 132]; 198 [paras. 132, 136]; 199 [para. 136]; 200 [paras. 125, 136]; 201 [para. 140].

McNeil, Kent, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (2001), pp. 409 to 415 [para. 243].

Megarry, R.E., and Wade, H.W.R., The Law of Real Property (4th Ed. 1975), pp. 1004, 1005 [para. 120]; 1006 [paras. 120, 121]; 1014 [para. 123].

Oosterhoff, A.H., and Rayner, W.B., Anger and Honsberger Law of Real Property - see Anger and Honsberger, Law of Real Property.

Pollock, Frederick, and Wright, Robert S., An Essay on the Law of Possession (1888), pp. 6 [paras. 119, 140]; 31 [para. 125]; 32 [paras. 127, 138].

Shortt, Adam, and Doughty, Arthur, Documents Relating to the Constitutional History of Canada, 1759-1791, Part I (1918), p. 135 [para. 229].

Sopinka, John, and Gelowitz, Mark, The Conduct of an Appeal (2nd Ed. 2000), p. 145 [para. 252].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 1 [para. 203].

Counsel:

Bruce H. Wildsmith, Q.C., and Eric A. Zscheile, for the appellants;

Alexander M. Cameron and William D. Delaney, for the respondent;

William Richards, for the intervenor, Attorney General of New Brunswick.

This appeal was heard on March 24-27, 2003, at Halifax, N.S., before Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On October 10, 2003, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Cromwell, J.A. (Oland, J.A., concurring) - see paragraphs 1 to 256;

Saunders, J.A. - see paragraphs 257 to 359.