Bernard and Marshall Supreme Court of Canada Decision July 20, 2005
NBAPC, on behalf of our membership, intervened to make presentations to the Court with respect to who the beneficiaries of the rights are and that the treaties and the rights are held by the Mi'Kmaq Nation and not simply on part (ie.,the Indian Act Bands) of he Nation.
Bernard and Marshall Supreme Court of Canada Decision July 20, 2005
NBAPC, on behalf of our membership, intervened to make presentations to the Court with respect to who the beneficiaries of the rights are and that the treaties and the rights are held by the Mi'Kmaq Nation and not simply on part (ie.,the Indian Act Bands) of he Nation.
These cases involved commercial logging activities in New Brunswick and Nova Scotia. The approach taken to th case by Council for the harvesters was to put all the major issues before the court. As a result, Counicl for the harvesters argued:
1. Treaty Rights for commercial logging
2. Aboriginal Title to, in essence, all of Nova Scotia; (present day NS, NB)
3. The Royal Proclamation of 1763
4. Belcher's Proclamation of 1762
Treaty Rights
The Supreme Court of Canada held against the existence of a Treaty Right of logging. The Court rejected the government that the Treaty was not valid and binding.
The Court stated that the Treaty Right to Trade was limited to trading items which were in the contemplation of the parties in 1760 or a logical evolution of traditional trading activities at that time. The Court held that there was no evidence of the trade in logs between Mi’Kmaq and Europeans.
The Court stated that the Treaty protected the right to practice traditional 1760 trading activities in the modern way and in the modern context. This did not include, in the courts mind, commercial logging.
It is open to the Mi’Kmaq to demonstrate by way of evidence what types of trading activities had occurred and where in the reasonable contemplation of the treaty making parties in 1760. Examples given in the court were such things as boats, snow shoes, baskets, medicines to name a few.
The Court did not do anything to disturb its finding in the original Marshall case with respect to fishing. As a result, the right to engage in commercial fishing has survived intact.
The decision can also support a Treaty Right of Trade in other natural resources that can be shown to have been considered by the parties in 1760 or that are a logical evolution of those trading activities.
Aboriginal Title
The Supreme Court of Canada has made it more difficult to provide Aboriginal Title over the Maritimes. This does not mean it will be impossible. However, in future cases, there will have to be a better evidentiary base to demonstrate how it is that the tests advocate by the Court is being met.
This case stands for the proposition that there was not sufficient evidence put forward in the case itself to meet this threshold. However, the Court did not state that this evidentiary burden could never be met. In fact, the Court expressly recognized the ability of semi-nomadic people to prove Aboriginal title. However, the evidence will have to be very well documented.
We can say that the decision did in fact confirm that Aboriginal title can exist in the Maritimes. The Crown had argued against this. To that extent, this aspect of the case can be seen to be a partial success.
The Royal Proclamation of 1763 and Belcher's Proclamation of 1762
The Supreme Court of Canada dismissed both of these Proclamations as being any independent source of Aboriginal Title. The Court held that, at most, they represented the maintenance of a status quo. If Aboriginal Rights and Title existed in 1763, they were not eliminated by the Royal Proclamation. However , neither were they given any greater protection than they had before.
Beneficiaries
The Court held that beneficiaries would be those persons who could demonstrate a sufficient connection to the pre-sovereignty nation and that can establish continuity by a continuing connection to the land. This formulation is somewhat useful. The Court did not talk about rights being in the Indian Act Bands or Modern Communities.
This approach is similar to what the court did in Simon in 1985. The Court did not pick up any of the Powley concepts and apply them to the Mi’Kmaq.
* For the copy of the Complete Decision please visit : www.lexum.ummontreal.ca