indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Indian Law Online Master Degree - University of Tulsa College of Law
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Supreme Court rejects Native logging rights claim
Thursday, July 21, 2005

The Supreme Court of Canada delivered a blow to Native rights on Wednesday, ruling against Mi'kmaq loggers who were arrested for cutting down trees on government land.

In two unanimous decisions, the court rejected the treaty rights claims of Native loggers who had been charged with violating the government's criminal laws. The loggers hadn't obtained authorization to use Crown land.

Joshua Bernard of the New Brunswick Eel Ground First Nation and Stephen Marshall and 34 other members of the Millbrook First Nation in Nova Scotia argued that they didn't need government approval. They said "peace and friendship" treaties with the British in 1760 and 1761 allowed them use of the land for traditional purposes like logging.

But the court concluded otherwise. Relying on evidence presented by Native elders and other witnesses, the justices said logging isn't protected by the treaties.

"Logging was not a traditional Mi'kmaq activity," Chief Justice Beverley McLachlin wrote for the court. "Rather it was a European activity, in which the Mi'kmaq began to participate only decades after the treaties of 1760-61."

McLachlin went further and held that that Mi'kmaq people do not have aboriginal title to the land in question. The court laid out a multi-part test that requires Natives to show not just that they occupied the land before the arrival of Europeans, but that they held the land exclusively and used it on a continuous, and not merely seasonal, basis.

"In summary, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title," the court concluded.

Two justices, however, disagreed with this analysis although they agreed with the ultimate outcome of the case. Justice Louis LeBel wrote separately to say that the multi-part test gives too much weight to European beliefs.

"In my view, aboriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the aboriginal and common law approaches," LeBel wrote in the opinion joined by Justice Morris Fish. "Otherwise, we might be implicitly accepting the position that aboriginal peoples had no rights in land prior to the assertion of Crown sovereignty because their views of property or land use do not fit within Euro-centric conceptions of property rights."

In the majority decision, however, McLachlin said that Native oral history and tradition, in conjunction with European concepts of ownership, should be used to determine whether Native title exists.

For the loggers, Native traditions worked against them. During a lower court trial, Chief Stephen Augustine, a Mi'kmaq historian, testified it was "unlikely" that the Mi'kmaq people "contemplated commercial logging" while the treaties were being negotiated.

Augustine further testified that logging by the British caused problems for the Mi'kmaq because they were "clogging up the rivers." "And this didn't allow the salmon to go up the rivers," he said.

The case was closely watched throughout Canada, and several First Nations filed intervening briefs. They were worried that the court would overturn earlier Native rights victories.

While the decision wasn't a win for the Mi'kmaq, the court did offer some advice. The justices urged the government and First Nations to resolve Native title issues before prosecuting Natives for violating criminal laws.

"When issues of aboriginal title or other aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts," the majority wrote. "Once the aboriginal rights claim to the area in question is settled, the Crown could decide whether or not to proceed with the criminal charges."

The case was the second major one to test the Mi'kmaq peace and friendship treaties. In the Marshall case of 2000, the Supreme Court ruled that the treaties protect fishing, hunting and gathering on Crown land, and that Mi'kmaqs have a right to earn a "moderate livelihood" from the activities.

Get the Decision:
R. v Marshall / R. v Bernard (July 20, 2005)

Relevant Links:
Union of New Brunswick Indians - http://www.unbi.org/index.html
The Marshall Case, Department of Fisheries and Oceans - www.dfo-mpo.gc.ca/COMMUNIC/Marshall/marshall_e.htm

Related Stories:
Canada's Supreme Court to issue logging decision (7/20)
Court to review logging injunction on Native land (07/07)
Canada's Supreme Court sides with First Nations (11/19)
Canada's Supreme Court to issue key rulings (11/18)
Can. Supreme Court hearing trust relationship case (03/25)
Can. Supreme Court to hear landmark trust lawsuit (03/12)
Can. Supreme Court accepts tribal consultation case (03/21)

Copyright 2000-2005 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Pine Ridge actors make a splash with new film (5/29)
Ernestine Chasing Hawk: Let's change the image of 'Racist City' (5/29)
Miccosukee Tribe joins Native youth announcement at DOI in DC (5/29)
Kurt Luger: It's time to put an end to the Indian wars in America (5/29)
Summer Montileaux: Silence on sexual abuse in Indian Country (5/29)
John Guenther: Protecting Indian children and protecting ICWA (5/29)
Kerry Hawk Lessard: Urban Indians come together in Baltimore (5/29)
Lydia Millet: Selling off sacred Apache land to foreign interests (5/29)
Stuart Delery: Safeguarding voting rights of the first Americans (5/29)
Student from Navajo Nation competes in national spelling bee (5/29)
Navajo Nation to vote on fluency requirements for candidates (5/29)
Cherokee Nation signs hunting and fishing compact with state (5/29)
Onondaga Nation player earns top lacrosse award for 2nd year (5/29)
Wisconsin Supreme Court rules for Oneida Nation in permit case (5/29)
School district in Wisconsin bans clothing with 'Indian' mascots (5/29)
Republican former congressman Dennis Hastert hit with charges (5/29)
Court allows lawsuit against gaming officials of Pechanga Band (5/29)
Another lawsuit seeks to block Jamul Band from $360M casino (5/29)
Bill for one more tribal casino in Connecticut sent to governor (5/29)
Saginaw Chippewa Tribe shares another $2.7M in gaming funds (5/29)
Native Sun News: Ex-Rapid City police chief admits erasing tape (5/28)
Omaha Tribe surprised by appeal in reservation boundary case (5/28)
Mary Annette Pember: Historical trauma might affect Native DNA (5/28)
Erik Stegman: Native youth subjected to racism and stereotypes (5/28)
Charges announced in big drug trafficking ring in Indian Country (5/28)
Osage Nation expects to see offers from land buy-back program (5/28)
Voters of Red Cliff Band show support for some uses of marijuana (5/28)
Maine tribes assert sovereignty and sever relationship with state (5/28)
Navajo Nation sees larger numbers of sand dunes on reservation (5/28)
Mille Lacs Band plans public hearing on proposed energy pipeline (5/28)
Michigan tribes warn of disaster from pipeline spill in Great Lakes (5/28)
Coquille Tribe completes acquisition of 3,200 acres of forestland (5/28)
Spiritual leader of Lipan Apache Tribe back in court over feathers (5/28)
Lumbee Tribe to appeal findings of misuse of federal HUD funds (5/28)
Nebraska ends death penalty in historic and close veto override (5/28)
Tohono O'odham Nation chooses new leader amid casino conflict (5/28)
Poarch Creeks file lawsuit over taxes imposed on gaming facility (5/28)
Connecticut tribes counting up votes on bill for one more casino (5/28)
Comanche Nation closed casino for one day to address flooding (5/28)
Native Sun News: EPA hears Native views about uranium mining (5/27)
Renae Yellowhorse: Navajo Nation can't cede power to outsiders (5/27)
Donna Loring: Politicians circle the wagons around Maine tribes (5/27)
David Treuer: Andrew Jackson turned on Cherokee Nation allies (5/27)
NCAI responds to criticism from Rep. Young on land-into-trust (5/27)
Lawsuit challenges constitutionality of Indian Child Welfare Act (5/27)
Hopi Tribe seeks to prevent auction of sacred property in France (5/27)
Indian students face harsh punishment at public schools in Utah (5/27)
Menominee Nation school sees dramatic rise in graduation rate (5/27)
Poarch Creeks planning family-friendly entertainment at project (5/27)
Coquille Tribe names executive at economic development entity (5/27)
Cherokee law students eager for summer work on Indian issues (5/27)
USDA sends $125K to Indian economic development corporation (5/27)
County by Pine Ridge Reservation receives justice service grant (5/27)
Rep. Ann Kirkpatrick to challenge Sen. John McCain in 2016 race (5/27)
Law Article: Indian inmate wins religious rights suit in Wisconsin (5/27)
Alaska Native corporation holds election for five seats on board (5/27)
Blood Tribe combats rise in abuse of extremely dangerous drug (5/27)
First Nations housing program brings just 99 homes to reserves (5/27)
Supreme Court won't hear challenge to Graton Rancheria casino (5/27)
Kialegee Tribal Town given extension to respond in gaming case (5/27)
Quapaw Tribe looks to dispel concerns about casino in Arkansas (5/27)
Pokagon Band faces hurdles in plan to develop casino in Indiana (5/27)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.