The three respondents (two Maliseet and one Mi'kmaq) were charged with unlawful possession and cutting of Crown timber. They all admitted to the facts but all argued in defence that they possessed an aboriginal right to harvest timber for personal use, with Sappier and Grey also arguing they had a treaty right. The aboriginal right was found to exist in the lower courts, which the Crown appealed.
- How do you define aboriginal rights for migratory peoples?
- Can practices undertaken for survival amount to aboriginal rights?
The claimed specific aboriginal right was the right to harvest timber for personal use. The difficulty was that there was very little evidence adduced to support this fact at trial – most of the evidence brought forward was to show the importance of trees to the aboriginal communities, not the importance of the harvest of trees. Bastarache holds that this is an important distinction; to characterize an aboriginal right as a right to a resource would be to equate it to common law property rights, which is incorrect – aboriginal rights exist in practices, customs or traditions, not resources.
Bastarache states that the importance of adducing evidence about pre-contact practices should not be understated – without such evidence it will be difficult to mount a successful 35 claim. It is also important because it helps the court identify how the pre-contact tradition could have evolved in modern times. It is also critical that the court identifies the specific aboriginal right hat helps define the distinctiveness of the particular aboriginal community. In the case at bar, the right is solely to harvest wood for domestic, not commercial, purposes; a communal right.
Despite the evidentiary problems, Bastarache holds that the aboriginal communities had harvested wood since pre-contact times to construct furniture and housing. Although there was no direct evidence, the court must be ready to make flexible inferences in aboriginal cases.
Also at issue in this case was that the right claimed was a practice used for survival, and not for trade or ceremony. The Crown argued that such practices cannot amount to aboriginal rights. However, Bastarache holds that as long as a practice is distinctive there is no reason that it should be incapable of forming an aboriginal right merely because it was undertaken in order to survive.
Bastarache also addresses problems arising from the "integral" test from Van der Peet – that you should ask if the removal of the practice would fundamentally alter the aboriginal culture. He clarifies this stating that "culture" really means the pre-contact way of life, including means of survival. In this case, the fact that harvesting wood was done for survival purposes is sufficient to make it an integral part of the aboriginal culture. He stresses that aboriginal rights must be able to evolve over time. Finally, it is clear that the regulation infringed the aboriginal right and the Crown made no argument for extinguishment or justification, thus the appeal was dismissed.
Binnie, in a concurring judgment, agreed with the outcome, but held that the respondents had made out a pre-contact division of labour within the community such that certain individuals would be responsible for harvesting timber and then barter for other goods needed. This practice, brought into the modern era, would translate into a right to trade within the community any harvested timber, but did not extend to commercial exploitation.
- Practices being undertaken for survival purposes does not mean that they cannot constitute aboriginal rights.
- Aboriginal "culture" in the Van der Peet test means the pre-contact way of life.
- Aboriginal rights are not present in resources – only in practices, traditions or customs that might relate to resources.
- Aboriginal rights are limited to the territory where they were originally practiced.