R. v. Sappier (D.M.) et al., (2006) 309 N.B.R.(2d) 199 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 07, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 309 N.B.R.(2d) 199 (SCC);2006 SCC 54

R. v. Sappier (D.M.) (2006), 309 N.B.R.(2d) 199 (SCC);

    309 R.N.-B.(2e) 199; 799 A.P.R. 199

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: [2006] N.B.R.(2d) TBEd. DE.046

Her Majesty The Queen (appellant) v. Dale Sappier and Clark Polchies (respondents)

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, 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) (intervenors)

(30531; 30533; 2006 SCC 54)

Indexed As: R. v. Sappier (D.M.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

December 7, 2006.

Summary:

In R. v. Sappier (D.M.) et al., the accused, members of the Maliseet community living on the Woodstock (First Nation) Reserve, were charged with possession of timber from Crown lands contrary to s. 67(1)(c) of the Crown Lands and Forest Act. At issue was whether the accused had an aboriginal or treaty right to harvest Crown timber for personal use.

The New Brunswick Provincial Court, in a judgment reported (2003), 267 N.B.R.(2d) 1; 702 A.P.R. 1, acquitted the accused. The court held that the accused did not have an aboriginal right to harvest Crown timber for personal use. However, the accused had a treaty right to harvest timber from Crown lands for personal use. The court held that s. 67(1)(c) unjustifiably infringed the accused's treaty right. The court suspended the effect of its decision for eight months to permit the Crown to formulate appropriate provisions to control the exercise of the treaty right. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment re­ported (2003), 267 N.B.R.(2d) 51; 702 A.P.R. 51, dismissed the appeal. The Crown appealed. The accused argued that the lower court erred in failing to accept the defence of aboriginal right.

The New Brunswick Court of Appeal, in a judgment reported (2004), 273 N.B.R.(2d) 93; 717 A.P.R. 93, dismissed the Crown's appeal. The accused had a treaty and an aboriginal right to harvest trees for personal use on Crown lands traditionally occupied by members of the Maliseet community now living on the Woodstock (First Nation) Reserve. The court stayed the effect of the decision for one year. The Crown appealed.

In R. v. Gray (D.J.), the accused, a mem­ber of the Mi'kmaq community living on the Pabineau (First Nation) Reserve, was charged with unauthorized cutting of timber on Crown lands contrary to s. 67(1)(a) of the Crown Lands and Forest Act. The accused claimed a treaty and an aboriginal right to harvest trees for personal use. The trial judge rejected the treaty defence, but acquitted the accused, holding that he had an aboriginal right to harvest the trees. The Crown ap­pealed.

The New Brunswick Court of Queen's Bench, Trial Division, held that the accused had neither a treaty right nor an aboriginal right to harvest trees and convicted him. The accused appealed with respect to the aborigi­nal rights issue.

The New Brunswick Court of Appeal, in a judgment reported (2004), 273 N.B.R.(2d) 157; 717 A.P.R. 157, allowed the appeal, holding that the accused had an aboriginal right to harvest trees for personal use on Crown lands traditionally occupied by mem­bers of the Mi'kmaq community now living on the Pabineau (First Nation) Reserve. The court restored the verdict of not guilty. The Crown appealed. The Sappier and Gray appeals were heard together.

The Supreme Court of Canada dismissed both Crown appeals. All three accused estab­lished an unextinguished, site-specific ab­original right to harvest wood for domestic purposes as a member of their aboriginal communities (i.e., shelter, transportation, tools and fuel). The harvested wood could not be sold, traded or bartered to produce assets or raise money, even if the object of such trade or barter was to finance the build­ing of a dwelling. As the accused established an aboriginal right, it was unnecessary to decide whether there also existed a treaty right to harvest wood.

Forests and Forest Products - Topic 5245

Offences - Illegal cutting, removal or possession of timber - Defences - The accused, members of the Maliseet com­munity living on the Woodstock (First Nation) Reserve, harvested timber off of Crown land to construct furniture and a home on the Reserve and for firewood - Another accused, a member of the Mi'kmaq community living on the Pabi­neau (First Nation) Reserve harvested timber on Crown land to make household cabinets, coffee and end tables and mould­ings - All three defended charges under the Crown Lands and Forest Act by asserting an aboriginal right to harvest timber - The Supreme Court of Canada affirmed that the accused had an unextinguished, site-spe­cific aboriginal right to harvest wood for domestic purposes, including shelter, trans­portation, fuel and tools, which practice was integral to the pre-contact distinctive culture of both the Maliseet and Mi'kmaq peoples - The court stated that "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. ... The right to harvest wood for domestic uses is a communal one. ... The right to harvest ... 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." - See paragraphs 25, 26, 46.

Forests and Forest Products - Topic 5246

Offences - Illegal cutting, removal or possession of timber - Crown lands - [See Forests and Forest Products - Topic 5245 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The aboriginal accused claimed both an aboriginal and treaty right to harvest wood off of Crown lands for use for domestic purposes - The Crown con­ceded that the accused had a treaty right to harvest wood - The Supreme Court of Canada held that the Crown's concession as to the validity of a treaty was one of law and the court was not bound by con­cessions of law - Although concessions were not to be discouraged, the present concession was problematic because the concession had important implications outside of New Brunswick, as the treaty also applied to aboriginals in Nova Scotia and Newfoundland and Labrador - How­ever, it was unnecessary to resolve whether the accused had a treaty right to harvest wood, as they established an aboriginal right to harvest the wood - See paragraphs 62 to 65.

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - Aboriginal rights were founded upon prac­tices, customs, or traditions which were integral to the distinctive pre-contact cul­ture of an aboriginal people - The Supreme Court of Canada stated that "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'" - See para­graph 45.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - Aboriginal rights were founded upon prac­tices, customs, or traditions which were integral to the distinctive pre-contact cul­ture of an aboriginal people - The first step was to identify the "precise nature of the applicant's claim" - The Supreme Court of Canada stated that "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." - Notwithstanding that very little evidence was led respecting actual harvest­ing practices, the court held that the prac­tice of gathering wood for survival pur­poses met the "integral to a distinctive culture test" - See paragraphs 20 to 22, 27 to 47.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - The Supreme Court of Canada stated that "I think it necessary to discard the notion that the pre-contact practice upon which the [aboriginal] 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." - See paragraph 40.

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - The Supreme Court of Canada held that the regulation of Crown timber through a licensing scheme did not meet the high standard of demonstrating a clear intention to extinguish the aboriginal right to harvest wood for domestic purposes - See para­graphs 60 to 61.

Indians, Inuit and Métis - Topic 6025

Particular aboriginal or treaty rights - Harvesting trees - [See Forests and Forest Products - Topic 5245 ].

Practice - Topic 4960

Admissions - Concession on issue in dis­pute - [See Indians, Inuit and Métis - Topic 4410 ].

Cases Noticed:

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. 14].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 14].

R. v. Bernard (J.) (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1; 2003 NBCA 55, refd to. [para. 18].

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. [para. 20].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 23].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 27].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 34].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 37].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 37].

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; 2005 SCC 43, refd to. [para. 48].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) - see R. v. Bernard (J.).

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. 57].

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. 58].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1; 171 D.L.R.(4th) 577, refd to. [para. 62].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 63].

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. 63].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 63].

Newfoundland v. Drew et al. (2003), 228 Nfld. & P.E.I.R. 1; 678 A.P.R. 1; 2003 NLSCTD 205, affd. (2006), 260 Nfld. & P.E.I.R. 1; 786 A.P.R. 1; 2006 NLCA 53, refd to. [para. 64].

Authors and Works Noticed:

Barsh, Russell Lawrence, and Henderson, James Youngblood, The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand (1997), 42 McGill L.J. 993, p. 1002 [para. 42, 44].

Borrows, John, and Rotman, Leonard I., The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference? (1997), 36 Alta. L. Rev. 9, p. 36 [para. 45].

Cheng, Chilwin Chienhan, Touring the Museum: A Comment on R. v. Van der Peet (1997), 55 U.T. Fac. L. Rev. 419, para. 34 [para. 42].

Patterson, Stephen E., Anatomy of a Treaty: Nova Scotia's First Native Treaty in Historical Context (1999), 48 U.N.B.L.J. 41, pp. 42 to 46, 51, 55 [para. 64].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, p. 782 [para. 49].

Wicken, William C., Mi'kmaq Treaties on Trial (2002), pp. 28, 86, 89, 101 [para. 64].

Counsel:

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 intervenor, Attorney Gen­eral of Canada;

Owen Young and Ria Tzimas, for the intervenor, Attorney General of Ontario;

René Morin and Caroline Renaud, for the intervenor, Attorney General of Quebec;

Alexander MacBain Cameron, for the intervenor, Attorney General of Nova Scotia;

Patrick G. Foy, Q.C., and Robert J.C. Deane, for the intervenor, Attorney Gen­eral of British Columbia;

Robert J. Normey and Thomas G. Roth­well, 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;

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

Thomas E. Hart and Jane O'Neill, for the intervenor, Forest Products Association of Nova Scotia;

D. Bruce Clarke, for the intervenor, Mi'gmawei Mawiomi;

Michael J. Wood, Q.C., for the intervenor, New Brunswick Aboriginal Peoples Council;

Bryan P. Schwartz and Jack R. London, Q.C., for the intervenor, Assembly of First Nations;

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

Ronalda Murphy, Mary Jane Abram and Douglas Brown, for the intervenor, As­sembly of Nova Scotia Mi'kmaq Chiefs;

Clarine Ostrove and Leslie J. Pinder, for the intervenors, Okanagan Nation Al­liance and Shuswap Nation Tribal Coun­cil;

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

Robert J.M. Janes, 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 Te'mexw Nations).

Solicitors of Record:

Office of the Attorney General, Frederic­ton, N.B., for the appellant;

Barry Spalding, Saint John, N.B., for the respondents, Dale Sappier and Clark Polchies;

Gaffney & Burke, Fredericton, N.B., for the respondent, Darrell Joseph Gray;

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

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

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

Department of Justice, Halifax, N.S., for the intervenor, Attorney General of Nova Scotia;

Borden Ladner Gervais, Vancouver, B.C., for the intervenor, Attorney General of British Columbia;

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

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

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

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

Burchell, Hayman, Parish, Halifax, N.S., for the intervenor, Mi'gmawei Mawiomi;

Burchell, Hayman, Parish, Halifax, N.S., for the intervenor, New Brunswick Ab­original Peoples Council;

Pitblado, Winnipeg, Man., for the inter­venor, Assembly of First Nations;

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

Ronalda Murphy, Halifax, N.S., for the intervenor, Assembly of Nova Scotia Mi'kmaq Chiefs;

Mandell Pinder, Vancouver, B.C., for the intervenors, Okanagan Nation Alliance and Shuswap Nation Tribal Council;

Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the intervenor, Congress of Aboriginal Peoples;

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 Te'mexw Nations).

These appeals were heard on May 17, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On December 7, 2006, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Bastarache, J. (McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., concurring) - see para­graphs 1 to 73;

Binnie, J. - see paragraph 74.