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Case Briefs

R v Marshall; R v Bernard

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FactsEdit

35 Mi’kmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. The accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. The trial court entered convictions which were overturned by the Court of Appeal.

IssueEdit

  1. Do the Peace and Friendship Treaties give aboriginals a treaty right to log on Crown lands without permission, contrary to provincial regulations?
  2. What is the correct test for occupancy that is needed when determining if aboriginal title exists?

DecisionEdit

Appeal allowed, convictions restored.

ReasonsEdit

Treaty rightsEdit

The majority finds that the Treaties do not grant this right, and therefore the appeal must be allowed and the convictions restored. The Mi'kmaq tried to argue that these rights progressed from the "truckhouse" clause of the treaties similarly to the right to fish in Marshall. To address this, the Court states that there must be evidence that a similar practice to logging for trade was done at the time the treaties were created. They find no evidence that this was the case, and therefore the treaty did not protect the right.

The treaty gave the Mi'kmaq the right to continue their trading activities as they were established in 1760. Obviously, the rights protected were not frozen in time, thus if the Aboriginals traded logs in 1760 then this practice would likely be allowed today as a modern evolution of the practice. However, because there was no logging trade in 1760, the practices of the accused were not modern development of a treaty right, and were not protected at all. The proper test to employ when considering if a treaty trade right exists is to ask if the aboriginal people participated in a trade that can be said to be the precursor to the modern practice at the time the treaty was signed.

Aboriginal titleEdit

In the Nova Scotia Court of Appeal, Cromwell held that the trial judge's test for occupancy was too strict, as it did not allow for the nomadic lifestyle of the Mi'kmaq's to be considered. The trial judge's test was that they must have established a "regular use of a defined piece of land". Therefore, such things as a settlement would satisfy the test. However, the respondents did not regularly occupy the land, and therefore they failed this test. Cromwell's test took the nomadic lifestyle into effect, and set a lower threshold of "occasional entry on the land and acts from which an intent to occupy can be inferred". He found that the respondents met this standard, and therefore should be given good title.

McLachlin, writing for the majority, does not agree with Cromwell's lower threshold. She applies the test laid out in Delgamuukw, but in the end they rely on the trial judge's stricter threshold for occupancy. The defendants did not possess a treaty or permit to the lands concerned, and had not occupied them to the extent necessary to establish aboriginal title. They also discuss that in some cases where aboriginal title is not found, permission to use the land for agricultural or traditional reasons may be permitted, but this is not the case here. They put lots of emphasis on trying to balance the common law and aboriginal law, however it seems that the common law wins out in this case.

RatioEdit

  • When asking if a treaty that guaranteed trade rights protects a particular trade, you must ask if the aboriginal people participated in a trade that can be said to be the precursor to the modern practice at the time the treaty was signed; if they did not, then there is no treaty protection of the trade because neither party considered it when the treaty was signed.
  • In order to be deemed to "occupy" lands to a satisfactory extent of being able to claim aboriginal title to them, one must establish that they regularly use a defined piece of land for a certain purpose.

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