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
Native American Bank - Native people investing in Native communities
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: First Nations Sculpture Garden breaks ground (8/28)
Native Sun News: Lower Brule Sioux Tribe misses Cobell deadline (8/28)
James Giago Davies: There's trouble brewing on the racist horizon (8/28)
Simon Moya-Smith: A Republican slur on our indigenous relatives (8/28)
Kyle Mays: Connections between Creole and Native communities (8/28)
Mike Myers: Tribes deserve our own seats on international level (8/28)
Opinion: Supreme Court should pass on Jim Thorpe NAGPRA case (8/28)
Navajo Nation to reopen irrigation canal after Gold King mine spill (8/28)
Native executive wasn't surprised by 'No Natives please' rental ad (8/28)
Tribal members in Minnesota assert treaty right to gather wild rice (8/28)
County hopes to revive foreclosure lawsuit against Cayuga Nation (8/28)
Washington Supreme Court affirms legality of tribal gas compacts (8/28)
County sheriff questions authority of tribal officers in New Mexico (8/28)
Nooksack Tribe concerned about impact of slowly melting glaciers (8/28)
Supreme Court Justice Thomas favors conservative leaning briefs (8/28)
Mashpee Wampanoag Tribe prepares for decision on gaming plan (8/28)
San Manuel Band hires executive director for gaming commission (8/28)
Kumeyaay Nation still waiting to repatriate ancestors despite win (8/27)
IHS plans to expand service area for Aquinnah Wampanoag Tribe (8/27)
Native Sun News: Health workers join together for race relations (8/27)
Ivan Star: Oglala Sioux government fails majority of our people (8/27)
Steve Russell: Donald Trump isn't the only crazy one in the race (8/27)
Harlan McKosato: Isleta Pueblo opposes city development plan (8/27)
Julianne Jennings: People of color must unite for justice or else (8/27)
Hillary Clinton campaign reaches out to tribal voters in Nevada (8/27)
EPA releases internal report into Gold King Mine spill disaster (8/27)
Southern Ute Tribe hosts top DOJ officials at crime conference (8/27)
Paper must ask to attend Eastern Cherokee council meetings (8/27)
Koi Nation praises charges against man accused of looting site (8/27)
Pokagon Band breaks ground on village with housing complex (8/27)
Tribes provide fire services on and off reservations in California (8/27)
Chumash Tribe signs new Class III casino compact in California (8/27)
Tohono O'odham Nation heading back in court in casino lawsuit (8/27)
Ak-Chin Indian Community announces $100M casino expansion (8/27)
Lower Sioux Indian Community debuts $22M casino expansion (8/27)
Little Traverse Bay Bands plan new development at old casino (8/27)
Seminole Tribe wins major ruling in taxation dispute in Florida (8/26)
Senate Indian Affairs Committee sets hearing on EPA mine spill (8/26)
Indian Health Service to hold a second meeting for LGBT issues (8/26)
Obama picks for National Advisory Council on Indian Education (8/26)
Native Sun News: Lakota grandmother debuts film about uranium (8/26)
Native Sun News: Miss Crow Fair thanks family for strong support (8/26)
Terese Marie Mailhot: Beware of vicious and deadly gossip on rez (8/26)
Former Navajo Nation leaders blamed for lack of women's shelter (8/26)
Man charged with murder of Crow Tribe couple could face death (8/26)
Former executives charged with theft from Chippewa Cree Tribe (8/26)
Northern Arapaho Tribe asks Obama to drop appeal in eagle case (8/26)
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.