R v. Sappier and Polchies

Appeal to the Supreme Court of Canada

 

Facts 

The defendants, Sappier and Polchies, are status Indians and Maliseet from the Woodstock First Nation Reserve. They were cutting trees on Crown Land to use for making furniture and a house for themselves. They planned to use the leftover wood as firewood. They were charged with unauthorized possession of timber taken from Crown land and the Crown lands and forest Act, S.N.S. 1980, c. C-381. They claimed to have both a treaty and an aboriginal right to harvest timber for personal use.

 

Lower Court Decision

The trial judge found there was a treaty rights to harvest trees for personal use, but not an Aboriginal right. That decision was upheld by the summary conviction proceeding appeal court.

 

Issues

Crown admitted that if the rights did exist, they were not extinguished by legislation, or justifiably infringed by the Crown Lands and Forest Act. Therefore, the only issue for the court to decide was whether a treaty and /or aboriginal existed in this case. 

 

Court of Appeal’s Judgments

The defendants have both 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. 

 

Court of Appeal’s Judgments

The defendants have both 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 Nations Reserve. 

Reason for the Judgments

TREATY RIGHT

The defendants relied on the Treaty of1725 and the ratification of 1726 (the “Mascarene Treaty”), which has a clause that reads:

That the Indians shall not be molested in their persons, hunting, fishing, and planting grounds nor in any other their Lawful Occasions by His Majesty’s Subjects or their Dependants…

 

The Crown admitted the Treaty was valid and subsisting and the defendants were beneficiaries of it. The debate here was over the meaning neither of “Nor in any other of their Lawful Occasions.” The Crown argued that the phrase was intended to assure the Maliseet that they had the same legal rights as other British subjects, so they had to cut and use wood under the same laws as non-native. The defendants argued that it is protected other activities (including cutting and using wood) the Maliseet would have pursued at the time in order to survive besides hunting, fishing and planting.

 

 

The Court approved the trial judge’s approach of interpreting the plan meaning of the “lawful occasion” clause. Using a dictionary, the trial judge found that the meaning of “occasions” in 1725 meant, “A personal want or need”. On this basis, he concluded that the Indians’ need to use the products of the forest to maintain their traditional way of living, including cutting and carrying away wood, which was a “lawful” activity at the time, was protected by the Treaty.

  

The trial judge had also rejected the Crown’s argument because in an earlier treaty the British had made it clear that they meant the Indians would have the same rights as other subjects. If they had meant the same thing in the Mascarene Treaty, they would have used the same language.

Referring to the requirements set out by the Supreme Court of Canada in Marshall #2, the Court confirmed that as a treaty right, the right to cut wood for personal was a site-specific Right to Crown lands traditionally occupied by the members for the Maliseet community living on the Woodstock First Nation Reserve. There was no debate between the parties here that the Crown land the defendants had cut on were traditionally occupied lands.

  

The Court found that in characterizing the treaty right it was not necessary to reference the specific uses of the wood. So here it is a right to “harvest timber for personal use”, not a right to “harvest timber for personal use in the provision of shelter, furniture and firewood”.

 

But the Court held that the specific use does become important at the last sep of the treaty right test. The defendants had to show that using the wood for building houses and making furniture is a “logical evolution” of the uses their ancestors would have made of the wood in the 16th Century. Crown argued this was not a logical evolution, but a transformation of the right.

Considering the many number of ways that Maliseet used wood in the 18th century, the Court concluded that the defendants’ current use of the wood for furniture and house building was a logical evolution of their ancestors’ practice: “the construction of a bungalow constitutes a modern day expression of 1725 right to harvest wood for purposes of constructing a wigwam.

  

Aboriginal Right

By examining the 10 aboriginal rights cases already decided by Supreme Court of Canada, the Court of Appeal sets out 5-step test for finding an aboriginal right. The Court first discussed what has to be shown at each step, according to the Supreme Court’s past decisions and then applied the facts of the case to each step.

 

Step 1: What is the nature of the aboriginal right claimed? 

This step is about accurately characterizing the right in question. Past Supreme Court cases require that the characterization can’t be too broad or to narrow. The defendants characterized their right as “an aboriginal rights to harvest trees for personal use”. The Crown argued that this was too broad and insisted that it must be characterized by reference to the specific uses the defendants were putting the wood to (i.e. “an aboriginal rights to harvest trees for the purposes of constructing a home on the reserve and furniture, with the residue being used as firewood”).

The Court concludes that the proper characterization of an aboriginal right should not involve-

-1. Reference to the particular species involved (ie. “Harvesting tree’s not harvesting spruce trees”)

-2. Reference to the way or means the activity is carried out (ie. “Harvesting trees not harvesting trees with chain saw”).

Only when an aboriginal right to trade is alleged does the characterization become more complex. But such a right was not alleged in this case. Giving its conclusion, the Court found that the defendants, characterization of the right in this case is the right one.

Step 2: Is the right site-specific?

The Court found that in the cases of aboriginal rights involving harvesting activities that are land and water based (fishing, hunting, ect.) there is a “site specific” requirement. This required showing that the tract of land upon which the right was exercised in within the aboriginal groups traditionally occupied area. Finding similarities between fishing and hunting rights and the rights to harvest trees, the Court concludes that there is also a site-specific requirement to proving this right.

 

Therefore, the defendants had to show that “the harvesting of trees for personal use occurred on Crown lands traditionally occupied by members of the Maliseet community now living on the Woodstock (First Nation) Reserve. Crown had admitted that the defendants where harvesting wood in traditional Maliseet territory, and so this test was met.

Step 3: Was there an ancestral practice in existence prior to European contact?

Using 1500 as the pre-contact date in New Brunswick, the Court found that the evidence showed Maliseet used wood from the forest in which they lived to construct shelters, tools and crude household furnishing. It also stated that this conclusion was “common sense”. Crown had also concluded that “that usage of wood was obviously part of (the Maliseet) everyday living.

 

Step 4: Is the practice integral to the distinctive culture of the aboriginal community?

The lower courts concluded that the aboriginal right here failed because the defendants failed to show that harvesting wood for personal used was a practice distinct to Maliseet culture because reliance on wood was some thing common to almost every culture.

 

The Court concluded that the lower courts got the test wrong by confusing “distinct” with “distinctive”. An aboriginal groups is not required to show that they were the only cultural group to participate in a practice (ie. That the practice is rare, unique or “distinct “). The Court holds that the “integral to the distinctive culture” test requires showing that the practice was of “central significance” or a “defining feature” of the aboriginal group, such that its culture would have been “fundamentally altered” without it. The test is not met if the practice in question was merely an “incidental” or “marginal” aspect of the culture.

 

Using this test, and looking at the evidence, the Court concluded that harvesting wood was as much an integral and defining feature of Maliseet culture, as were the traditional gathering activities of hunting and fishing. The gathering of wood occurred with too much intensity, frequency and necessity for it to be considered incidental or marginal to the culture.

 

The Court strongly rejected the lower court finding that the Maliseet culture would not have been “fundamentally altered” had wood not been available as a resource, rhetorically asking what the Maliseet would have used for shelter and for crowing rivers and lakes had it not been for wood.

 

Turning to the Crown’s submissions that the practice of wood gathering was too casual and not sufficiently localized in one area enough to be integral, the Court rejected this as demanding that an aboriginal right be more site-specific that Supreme Court decision require.

 

Step 5: Is there continuity between the pre-contact practice and the modern-day practice?

The Crown’s basic argument on this point was that the Maliseet possess the aboriginal right to harvest timber so long as the uses of this natural resource mirror those practiced in the 16th century (ie., making canoes and baskets, not building house and making furniture out of wood).

 

The Court characterized this as taking a “frozen-in-time” approach, which was contrary to the continuity and evolution of a practice over time so as to allow for a modern expression of the practice (ie., the gun has replaced the bow and arrow, and the bungalow for the wigwam). It rejected the Crown’s argument that the Maliseet practice of making furniture and houses only developed in response to European influences. The Court concluded that these were modern expression of pre-contact practices.

 

Conclusion

On the basis of its finding of the 5-Step test, the Court decided the defendants did possess an aboriginal right to harvest trees for personal use.

 

*For more information on this Case: www.scc-csc.gc.ca

Case # 30533

Her Majesty the Queen v. Dale Sappier and Clark Polchies (NB)