Facts

The defendant, Darrell Gray, is a status Indian and a Mi’kmaq from Pabineau First Nation Reserve. He harvested four bird’s eye maple trees on Crown land, which he intended to use to make furniture for himself. He was charged with unauthorized cutting of timber on Crown Lands under the Crown Lands and Forest Act,S.N.B. 1880,c.C-38.1. He claimed both a treaty and aboriginal right to harvest trees for personal use.

Lower court judgments

Both the trial and summary conviction proceeding appeal judge rejected the treaty defense. The trail judge did acquit Mr. Gray on the aboriginal right defense, but the appeal judge overturned the ruling.

Issue

Gray had an aboriginal right to harvest trees for personal use on Crown lands traditionally occupied by members of the Mi’Kmaq community no living on the Pabineau First Nation reserve.

Reason for judgments

The Court applied the same 5-step test that was developed in Sappier and Polchies.

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

Referring to its analysis in Sappier and Polchies, the court concluded that the lower courts characterized the right to narrowly. The had characterized the right by

-Making it species specific

-referencing it to the specific proposed use( a right to harvest birds eye maple trees to fabricate furniture for its on use and for molding for his house.

The court held that this was not consistent with Supreme Court of Canada decisions. Only when an aboriginal right for trade purposes is asserted does the right have to be characterized in terms of the species.

The court commented that requiring the right here to be species specific was “simply unrealistic”. It would require aboriginal people to produce evidence that their ancestors used a specific species of tree about 500 years ago and to show how they used it.

As for the appeal judge’s second error (characterizing the right by reference to its specific modern day use) the court commented that this confuses the present and historical uses, and undermines the continuity and evolution test at the last stage of the 5-step analysis.

Step 2- Is the right site specific?

Citing its comments in Sappier and Polchies, the Court repeated that there is a site-specific requirement for harvesting activities like fishing and hunting, which would include wood harvesting.

The court accepted that trial judge’s finding that Gray’s evidence proved that he had been cutting on lands traditionally occupied by members of the Mi’Kmaq community now living on the Pabineau First Nations Reserve.

Step 3- was there an ancestral practice in existence prior to European contact?

This step was unchallenged. The Crown did not disagree with the common sense understanding that the aboriginal communities within NB had been traditionally harvesting trees for personal use at the time of contact with Europeans.

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

The Court concluded that the summary convictions appeal judge applied the wrong reasoning in finding Gray did not meet this step.

Citing its discussion in Sappier and Polchies on the difference between “distinct” and “distinctive” and what makes something “integral”, the Court of Appeal approved the earlier finding of the trial judge that the well documented use of wood by the Mi’Kmaq in the 16^th century proves the practice of harvesting wood for personal use was integral to the culture. The Court notes that had the Mi’Kmaq not harvested wood from time immemorial, its society would have been fundamentally altered.

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

Here the Court noted that the continuity test required flexibility to allow for the evolution of a practice over time. Citing its conclusions in Sappier and Polchies that using wood to build a bungalow is the modern equivalent of a building a wigwam, the court found that the right to construct furniture for the modern home presents the logical evolution of the Mi’kmaq 16^th century practice of harvesting wood for the purpose of constructing crude furnishings.

Extinguishment/Infringement/Justification

On the issue of whether the aboriginal right had been extinguished, the Court cited its reasons, in R v .Bernard, where it found that a treaty right to engage in commercial harvesting of timber had not been extinguished by either pre-or post Confederation legislation because there was no clear and plain intent to do so.

On the issue of infringement and justification, the Crown had admitted earlier that if the right existed, then the Crown Lands and Forest Act infringed that right and the Crown had failed to justify the infringement.

Conclusion

On the basis of the Court finding, the Court decided that the defendant did possess an aboriginal right to harvest trees for personal use.