Supreme Court fells Mi'kmaq logging rights

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A treaty right fell in the forests of Nova Scotia and New Brunswick on July 20 and it made considerable noise.

Two separate cases involving the assertion of the Mi'kmaq treaty right to log on Crown land were rolled into one Supreme Court of Canada decision. In the Marshall case, 35 Mi'kmaq loggers were charged after they cut timber on Crown land in Nova Scotia. In the Bernard case, Joshua Bernard was charged with being unlawfully in possession of logs he cut on Crown land and was transporting to a sawmill.

The cases were combined into one because all the plaintiffs offered up essentially the same defence: their treaty right and the unextinguished Mi'kmaq Aboriginal title over the land meant they didn't need the province's permission to harvest logs on Crown land.

Convictions had been secured by the Crown at the trial level and, at the provincial court of appeal level, a new trial was ordered in Marshall while Bernard's acquittal was overturned.

The Supreme Court restored the convictions, ruling that modern day logging activities were not "a logical evolution of a traditional Mi'kmaq trading activity."

Chief Justice Beverly McLaughlin wrote the majority decision for the court. Returning to the original Marshall case delivered by the court in 1999-a case that recognized the Mi'kmaq right to fish and obtain "a moderate livelihood"-she supported the trial judges' ruling that the Mi'kmaq people were primarily fishing people. Commercial logging actually would have interfered with the fishing lifestyle, McLaughlin ruled. The cases involved interpretations of treaties negotiated between the British and the Mi'kmaq in 1760.

Mi'kmaq leaders were unanimously disappointed in the interpretation reached by the court.

"The ruling could have strengthened the sacred covenant chain of treaties upon which we feel the foundation of Canada is built," said Lawrence Paul, Atlantic Policy Congress co-chair. "This relationship was and continues to be based on peaceful co-existence and mutual cooperation and sharing. I am disappointed that the Supreme Court of Canada did not further expand our treaty rights."

Paul said the Indigenous peoples of the Maritime region will enter into treaty implementation talks with the federal Crown despite the ruling.

"Let's take this negative decision as a real challenge now and work with government in reinstating the treaty relationship and move forward together as good neighbors who share this land and its resources," he said.

Gesgapegiag First Nation Chief John Martin was harshly critical of the court's thinking.

"An unjust colonial history has forced the parties in these court decisions to turn to these treaties and to use them for purposes for which they were never intended," the Gaspe region Mi'kmaq chief said. "These are not surrender treaties. The Mi'kmaq have never surrendered their title and rights."

He said the court failed in its attempt to look at both points of view-Indigenous and non-Indigenous-that were at play in the two cases.

"Treaties are not domestic agreements for monies and services. They are agreements between sovereign nations, which outline the conditions of their relationship. They do not serve to dictate the rights to another nation within shared territories," he said. "We suspect the court has, despite its best intentions, got itself caught between a more balanced understanding of historical fact and a line of reasoning that works backwards from today rather than forward from the time the treaties were negotiated."

Assembly of First Nations National Chief Phil Fontaine said the decision was not a victory for First Nations' people, but neither is it a defeat.

"The Supreme Court upheld the rulings of the trial judges that Aboriginal title had not been proven in these cases and points out that these judgments are not necessarily the final judicial word. It remains open for First Nations to assert their title in future cases. The strugglefor First Nations to re-build and re-vitalize our economies is moving ahead on many fronts. We will continue to assert our moral, political and legal right to re-build our economies."

Fontaine suggested the facts the court relied upon in reaching this decision were not as complete as could have been hoped.

"In future litigation, a fuller examination of the historical record will hopefully lead to a full and respectful understanding of the importance our forests have always had to the social, economic and spiritual life of the First Nations of New Brunswick and Nova Scotia," said Fontaine.