Background
This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaq were charged with cutting down timber on Nova Scotia Crown land without a permit. In the second case, Joshua Bernard, a Mi'kmaw man was charged with possession of logs stolen from a rural New Brunswick saw mill that were cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.
At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.
Opinion of the court
McLachlin, writing for the majority, held that there was no right to commercial logging under the treaties. From the evidence she found that it did not support the conclusion that commercial logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.
Regarding the claim of aboriginal title, the majority affirms the test from Delgamuukw: "claimants must prove “exclusive” pre-sovereignty “occupation” of the land by their forebears." Applying this test, the majority did not find that seasonal hunting or fishing in an area was sufficient, on its own, to establish the existence of aboriginal title. They left open the possibility that with enough evidence, nomadic or semi-nomadic people could establish aboriginal title based on their non-permanent use of a piece of land, as long as sufficient exclusivity or control was also demonstrated.
The Miꞌkmaq are a First Nations people of the Northeastern Woodlands, indigenous to the areas now known as Canada's Atlantic Provinces and the Gaspé Peninsula of Quebec as well as the northeastern region of Maine. They call their national territory Miꞌkmaꞌki. The nation has a population of about 170,000, of whom nearly 11,000 speak Miꞌkmaq, an Eastern Algonquian language. Once written in Miꞌkmaw hieroglyphic writing, it is now written using most letters of the Latin alphabet.
Corbiere v Canada [1999] 2 S.C.R. 203, is a leading case from the Supreme Court of Canada where the Court expanded the scope of applicable grounds upon which a section 15(1) Charter claim can be based. This was also the first case to use the framework proposed by Law v. Canada.
R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that Aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
Guerin v The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established Aboriginal title to be a sui generis right.
Mitchell v MNR, [2001] 1 S.C.R. 911 is a leading Supreme Court of Canada decision on aboriginal rights under section 35(1) of the Constitution Act, 1982. The court held that Mitchell's claim to an aboriginal right to import goods across the Canada–US border was invalid as he was unable to present enough evidence showing that the importation was an integral part of the band's distinctive culture.
R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.
The Burnt Church Crisis was a civil conflict in Canada between the Mi'kmaq people of the Burnt Church First Nations (Esgenoôpetitj) and white non-Aboriginal fisheries in New Brunswick and Nova Scotia between 1999 and 2002.
R v Badger, [1996] 1 S.C.R. 771 is a leading Supreme Court of Canada decision on the scope of aboriginal treaty rights. The Court set out a number of principles regarding the interpretation of treaties between the Crown and aboriginal peoples in Canada.
Chippewas of Sarnia Band v Canada (AG), 2000 CanLII 16991, 51 OR (3d) 641; 195 DLR (4th) 135 was a decision of the Court of Appeal for Ontario concerning aboriginal title in Canada.
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.
R v Marshall [1999] 3 S.C.R. 456 and R v Marshall [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.
In Australia, Canada, New Zealand and the United States the term treaty rights specifically refers to rights for indigenous peoples enumerated in treaties with settler societies that arose from European colonization.
The Marshall Court (1801–1835) issued some of the earliest and most influential opinions by the Supreme Court of the United States on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of the Court on aboriginal title during this period are dicta. Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction.
Treaty Day is celebrated by Nova Scotians annually on October 1 in recognition of the Treaties signed between the British Empire and the Mi'kmaq people. The first treaty was signed in 1725 after Father Rale's War. The final Halifax Treaties of 1760–61, marked the end of 75 years of regular warfare between the Mi'kmaq and the British. The treaty making process of 1760–61, ended with the Halifax Treaties (1760–61).
Gabriel Sylliboy was the first Mi'kmaq elected as Grand Chief (1919) and the first to fight for the recognition by the state of Canada of the treaties between the government and the First Nations people.
The Treaty of 1752 was a treaty signed between the Mi'kmaq people of Shubenacadie, Nova Scotia and the governor of Nova Scotia on 22 November 1752 during Father Le Loutre's War. The treaty was created by Edward Cornwallis and later signed by Jean-Baptiste Cope and Governor Peregrine Hopson. Cornwallis was at the signing at Cope's request.
Tsilhqot'in Nation v British Columbia is a landmark decision of the Supreme Court of Canada that established Aboriginal land title for the Tsilhqot'in First Nation, with larger effects. As a result of the landmark decision, provinces cannot unilaterally claim a right to engage in clearcut logging on lands protected by Aboriginal title; they must engage in meaningful consultation with the title holder before they proceed. Although the Aboriginal title holder does not have to consent to the activity, meaningful consultation is required before infringement of the right can take place.
Grassy Narrows First Nation v. Ontario [2014] SCR 48, [2014] 2 S.C.R. 447 was a July 11, 2014 decision by the Supreme Court of Canada in case number 35379 in which an appeal made by the Government of Ontario was allowed. The result of Grassy Narrows v. Ontario, while legal, was unfair to Grassy Narrows First Nation, as "it has put them in a situation of having negotiated with a party who then ceased to be a party when it came to honouring the agreement."
