Mi’Kmaq – Malisset Treaty Rights - The Duty to Consult March 26 & 27 2014

Mi’Kmaq – Malisset Treaty Rights - The Duty to Consult March 26 & 27 2014 NOTES FOR PRESENTATION Rick Hatchette

What triggers the Crown’s duty to consult with Aboriginal People?Constitution Act 198235. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

R. v. Darren Paul 2013 (N.B. Prov. Ct.)Darren Paul is Maliseet and a member of the Woodstock First Nation. Between February and May 2012 he cut hard wood from Crown land which he sold to various individuals for fire wood.Darren is charged under the Crown Lands and Forests Act of New Brunswick with cutting, removing and being in possession of timber from Crown lands without authorisation.

Commentary on the History of the Mi’kmaq/Maliseet/Passamaquoddy Treaties in Court

Oral HistoryW. O. Raymond 1897The St. John River Indians still possess a traditional knowledge of the treaty [of Fort Howe] made in September, 1778, and refer to it as the time when the white man and the Indian became all one brother”. Many of the Indians assert that in consequence of the understanding then arrived at the Indian has today the right to cut an ash tree to obtain splints for baskets or take the bark from a birch tree for his canoes wherever he pleases, and without any necessity of asking permission from the present owner of the soil; also to encamp upon the shores of all rivers and streams for the purpose of fishing etc. In many parts of the province there is an unwritten law to this effect, by virtue of which the Indian roams at pleasure through the white man’s woods in quest of the materials for his simple avocations, and likewise in his peregrinations pitches his tent where he wishes without let or hindrance. (from David Bell’s A Commercial Harvesting Prosecution in Context: The Peter Paul Case, 1946.)

R. v. Alex Bernard and R. v. Peter Jacobs 1925 (N.B. Prov. Ct.)Alex Bernard and Peter Jacobs were charged with unlawfully trapping beaver in the Parish of Salisbury between the 19th day of April 1925 and the 30thd day of April, 1925. They had a copy of the 1752 Treaty with them and claimed by it they had the right to fish and hunt in any part of the province. The Daily Times (Moncton) of May 10, 1925 reported This is the first time that such a defence has been raised in the local court and in fact in the province.

The Daily Times on May30, 1925 (Moncton, The Daily Times) reported that The case has created a considerable amount of public interest, not only locally but throughout the Province in view of the constitutional points in that it dealt with treaties made between the Indians of both Nova Scotia and New Brunswick and His Majesty’s government almost two centuries ago. The arguments put forward for the defence were that: Articles of submission & agreement made at Boston in 1725 ratified and confirmed with all the Nova Scotia or Acadia Tribes at Annapolis Royal in June A. D. 1726. Treaty or Articles of Peace and Friendship of 1752 which Treaty was been never abrogated. Belcher’s Proclamation The Royal Proclamation proclaimed by his Majesty George III A. D. 1763.

British North America Act 91 (24) Indians and lands reserved for Indians Section 109 of the British North America Act 1867 all lands belonging to New Brunswick, subject to any trusts existing in respect thereof, and one of the trusts existing in this respect at the time of is the right of the accused to hunt and fish as proclaimed by the aforesaid Treaties. The case was dismissed because the Crown had not actually proven that Bernard and Jacobs had trapped beaver as alleged. It was not necessary for the judge to deal with the constitutional arguments that were put forward.

R. v. Gabriel Syliboy 1928 (N.S. Co. Ct.)Gabriel Syliboy, the Grand Chief of the Mi’maq of Nova Scotia, was charged with having in his possession in the county of Inverness in Cape Breton, Nova Scotia fifteen green pelts, fourteen muskrat and one fox contrary to the Nova Scotia Lands and Forests Act, 1926. Mr. Syliboy’s defense was that he had the Treaty right to hunt and trap at all times bases onthe 1752 Treaty entered into by Governor Hopson and Major Jean Baptiste Cope.The Treaty provided, amongst other things, that the Mi’kmaq would have free liberty to hunt and fish as usual.

In convicting Gabriel Syliboy the Judge found:That the Treaty of 1752 did not extend to CapeBretonThat the Mi’kmaq who signed the Treaty of 1752 and Governor Hopson did not have the authority to enter into a treaty.That even if the Treaty of 1752 was a valid treaty, provincial laws would prevail over the Treaty.

R. v. Peter Paul1946 (N.B. Prov. Ct.)Peter Paul was charged with the theft of ash saplings valued at more than 25 cents and less than 5 dollars from the property of Harold Rogers of Benton, New Brunswick.Peter Paul was a cooper, making and repairing barrels on the Woodstock reserve starting in the 1920s. His friend, Tappan Adney put forward a treaty-based defence on his behalf. Indian Affairs obtained a Fredericton lawyer, Leo Cain, to represent Mr. Paul. When the trial resumed the defence was one of longstanding practice rather than a treaty right.

The judge found Peter Paul guilty of theft but gave a suspended sentence as he found Peter Paul acted in ignorance of the law. Following the conviction Chief William Saulis of Tobique wrote in a letter to the Woodstock Newspaper;So we Indians are now thieves and our fathers and grandfathers have been thieves when they went into the woods anywhere for the ash for baskets, the bark for our canoes. Our fathers and grandfathers have told us that we have the right. We think we have been allowed to do this undisturbed because we are Indians .... It is not a right the white man has given us. It is the little the Indian has left that the white man has not taken away from us... We can’t prove it because the only record the Indian has is what our fathers and grandfathers tell us, and we know they are not liars.

An appeal was announced but did not proceed. TapanAdney wrote in a letter to the Hartland Observer in December 1946:The full case of the Indian was not presented at the trial in Woodstock. He possesses clear rights[that] are not given the Indian by treaty but were conceded to be the Indian’s beginning with the basic treaty of Massachusetts and Nova Scotia at Boston, treaties that have never been abrogated and are of the same force today as they were in 1725-26, and in 1749, 1752 and 1778 treaties of confirmation. Actually the Indian tribes are acknowledged as having ownership and title to their tribal territories, and the title has never been extinguished, as under the same it was extinguished by purchase with annuities on the American side, and in Ontario and Quebec, after the cession of 1763, by Great Britain.

Peter Paul continued to harvest ash where ever he chose. He was charged again in 1951 with harvesting ash in the Lindsay district. He was found guilty by a jury, but Judge Jones imposed no sentence.Two or three years later, when a new crop of ash poles was ready for harvest Peter Paul returned to Lindsay and cut them without interference.

R. v. Simon 1958 (N.B. C.A.)Mr. Simon was a Mi’kmaq from Elispogtog. He was convicted of setting a net in the Richibucto River in violation of the New Brunswick Fisheries Regulations under the Federal Fisheries Act. He argued that section 87 (now 88) of the Indian Act was a defence to the charge.Subject to the terms of any treaty and any other Act of the Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

The defense was based on the Treaty of 1752 and in particular Article 4:It is agreed that the said Tribe of Indians shall not be hindered from, but shall have free liberty of hunting and fishing as usualThe New Brunswick Court of Appeal referred to the R. v. Syliboy case and agreed that the Treaty of 1752 was not made with the Mi’kmaq Nation as a whole but only with a small group of Mi’kmaq Indians inhabiting the eastern part of what is now the Province of Nova Scotia. Mr. Simon did not establish any connection by descent or otherwise with the original group of Indians with whom the 1752 treaty was made.

The Boston Treaty of 1725 was argued on appeal. The Court noted the list of the several Tribes of Eastern Indians who signed the treaty: the Penobscot, Nargwalk, St. Johns, and Cape Sables and other Tribes inhabiting His Majesty`s Provinces aforesaid and found that there was no evidence that the Mi’kmaq or any particular Tribe of them were involved in the 1725 Treaty.

R. v. Paul 1980 (N.B.C.A.)Mr. Paul, a member of the Metepenagiag First Nation, was charged with being in possession of an undressed beaver skin without authorization contrary to the New Brunswick Game Act. He relied on several Treaties and section 88 of the Indian Act. The Treaty of 1725Saving unto the Penobscot, Naridwalk and other Tribes within His Majesty’s Province aforesaid and their natural Descendants respectively all their lands. Liberties and properties not by them convey’d or sold to or possessed by any of the English Subjects as aforesaid. As also the privilege of fishing, hunting, and fowling as formerly.”The court found that this Treaty only applied to the Indians in the province of Massachusetts Bay . here was no evidence that Mi’kmaq or any particular Tribe of them were involved in the 1725 Treaty.

The Treaty of 1752The court adopted the reasoning in R. v. Simon.Having regard to the language of the Treaty, we are satisfied with the correctness of the view taken by Patterson, Acting County Court Judge, that the treaty was not made with the Micmac Nation or Tribe as a whole but only with a small group of Micmac Indians inhabiting the eastern part of what is now the Province of Nova Scotia with their habitat in or about the Shubenacadie area ...

The Treaty of 1779 That, the said Indians and their Constituents, shall remain in the Districts before mentioned, quiet and free from any molestation of any of His Majesty's Troops, or other his good Subjects in their Hunting and Fishing;The Court found that the 1779 Treaty applied to Mi’kmaq Indians at Miramichi. It is not necessary for a treaty to create a right. With the 1779 Treaty it was the recognition of a pre existing right that existed from time immemorial. There was no evidence that the treaty was ever abrogated. The Court held that the right of hunting and fishing was restricted to the reserve. Mr. Paul’s conviction was set aside.

R. v. Richard Polchies and Melvin Paul; R. v. David Paul and John Paul 1980 (N.B.C.A.)The individuals charged were members of the St. Mary’s First Nation. The issue was their right to hunt outside reserves under the 1778 Treaty. Were the arrangements entered into between the British and the Indians in 1778 at Fort Howe treaty that exempted the Maliseets provincial hunting laws? The court reviewed the document that records the meeting and found that there was no record of promises on behalf of the Crown but there was a record of promises made on behalf of the Indians, beginning with an oath of allegiance to the King.

The promise relied on by the Maliseet was:I do promise that I will not take part directly or indirectly against the King in the troubles now subsisting between Great Britain and His Majesty’s Rebellious Subjects of America, but that I will follow my hunting and fishing in a peaceable and quiet manner.The court distinguished that clause in the 1778 Treaty from the right to hunt recognized in the 1779 Treaty in R v. Paul :That, the said Indians and their Constituents, shall remain in the Districts before mentioned, quiet and free from any molestation of any of His Majesty's Troops, or other his good Subjects in their Hunting and Fishing.

R. v. Paul and Polchies 1988 (N.B.Q.B.)Two members of the St. Mary’s First Nation were found not guilty of night hunting by reason of their treaty rights. The Crown appealed arguing that the 1725, 1726 and 1749 treaties were abrogated by hostilities. Mascarene’ s Promises made in 1725 in Boston:that the Indians shall not be molested in their persons, hunting, fishing and planting grounds, nor in any other their lawful occasions ... nor in the exercise of their religion, provided the missionaries residing among them have permission from the Governor or Commander in Chief ... which were ratified in 1726 at Annapolis.

The 1726 Treaty was renewed and ratified in 1749. The Indian representatives acknowledged that they were authorized to renew the 1726 treaty and in fact had a copy of the treaty with them.The 1760 Treaty acknowledged that the earlier treaties had since been violated but that the Indians desired to enter into a treaty for the renewal and future firm establishment of peace and amity.The earlier treaties were thereby renewed ... that the same shall forever hereafter be strictly performed and observed.

At Fort Howe in 1778 the promise was thatI will follow my hunting and fishing in a peaceable and quiet manner.The Crown failed to establish that the Treaties of 1725, 1726 and 1749 were abrogated by subsequent hostilities.Even if they had been abrogated, the Court found, the Treaty of 1760 revived the earlier treaties. The alleged acts of hostilities after 1760 were relatively insignificant and temporary and were forgiven and forgotten as was evident at the 1778 conference.The Treaties, together with section 88 of the Indian Act gave the Maliseet men immunity from prosecution under the provincial hunting legislation.

Simon v. The Queen 1984 (S.C.C.)James Simon was charged with being in illegal possession of a loaded shot gun contrary to the Nova Scotia Lands and Forests Act. Mr. Simon was a member of the Shubenacadie Indian Brook Band. He relied on the Treaty of 1752 for his defence. Article 4:It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual: and that if they shall think a Truckhouse needful at the River Chibenaccadie or any other place of their resort, they shall have the same built and proper Merchandize lodged therein, to be Exchanged for what the Indians shall have to dispose of, an that is the mean time the said Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish, or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.

1. Was the Treaty of 1752 validly created by competent parties?The SCC said yes.2. Does the Treaty contain a right to hunt and what is the nature and scope of this right?Yes .. the Treaty, by providing that the Micmac should not be hindered but should have free liberty of hunting and fishing as usual, constitutes a positive source of protection against infringements on hunting rights.Further, the right to hunt to be effective must embody those activities reasonably incidental to the act of hunting itself …

3. Has the Treaty been terminated or limited?No, it was up to the Crown to prove on the balance of probabilities the circumstances and events justifying termination.Given the serious and far-reaching consequences of a finding that a treaty right has been extinguished, it seems appropriate to demand strict proof of the fact of extinguishment in each case where the issue arises. 4. Was James Simon covered by the Treaty?James Simon proved sufficient connection with the signatories of the Treaty of 1752 by showing he was a registered member of the Shubenacadie – Indian Brook Band of Mi’kmaq, living in the same area as the original Mi’kmaq party to the Treaty of 1752.

R. v. Marshall No 1 September 17, 1999 (S.C.C.)Donald Marshall Jr. was charged with selling eels without authority under the Fisheries Act. He was convicted at trial. The SCC overturned his conviction based on his rights under the 1760/61 Treaty.And I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia. Justice Binnie for the majority wrote:I would allow this appeal because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship, as best the content of those treaty promises can now be ascertained. ... In my view, the 1760 treaty does affirm the right of the Mi’kmaq people to continue to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities, and trading for what in 1760 was termed “necessaries”.

There is a difference between a liberty enjoyed by all citizens and a right conferred by a treaty, to participate in the same activity. The fact the content of Mi’kmaq rights under the treaty to hunt and fish and trade was no greater than those enjoyed by other inhabitants in 1760 does not take away from the higher protection they provide the Mi’kmaq people. The Treaty right to trade is limited to securing “necessaries”, which in modern times is equivalent to a moderate livelihood. It does not extend to the open-ended accumulation of wealth.

The Treaty right is subject to restrictions that can be justified under the Badger test. The Badger test refers to a previous 1996 decision of the SCC. In that case the SCC held that a statute or regulation which constitutes a prima facie infringement of aboriginal right or treaty rights must be justified. The test for justification requires that the purpose of the legislation must be achieved in such a way as to uphold the honour of the Crown in keeping with the unique relationship between the Crown and Canada's Aboriginal Peoples. The Crown has to justify any legislation that has some negative effect on any aboriginal or treaty rights protected under section 35(1).

Does the legislation interfere with the exercise of an existing aboriginal or treaty right? The legislation would be found to be interfering with the exercise of the right if it unnecessarily affects the interests protected by the Treaty right. Is the limitation unreasonable? Does the regulation impose undue hardship? Does the regulation deny to the holders of the Treaty right their preferred means of exercising that right? If there is interference the Crown must justify that interference. This test involves two steps.

First, is there a valid purpose for the legislation?What is the purpose of the legislation? The justification of conservation, the environment and safety would be considered valid objectives. If a valid legislative purpose is found, the second step is justification : the honour of the Crown in dealings with aboriginal peoples.The special trust relationship and the responsibility of the Federal and Provincial governments to Aboriginal People is he first consideration in determining whether the legislation can be justified.There must be a connection between the question of justification and the allocation of the priorities in accessing the natural resource. Any allocation of priorities after valid conservation measures have been implemented must give priority to Aboriginal and Treaty rights.

The priority will be different if the right involves personal consumption rather than trade. Personal consumption receives top priority whereas other factors may impact rights that involve trade as a component. Justification requires that the Crown ensures that its regulations are in keeping with that allocation of priority and guarantees that Aboriginal Peoples are treated in a way that ensures that their rights are taken seriously.In looking at justification, there are other questions to be addressed: Has there has been as little infringement as possible in order to achieve the valid legislative purpose?;If rights are effectively expropriated has fair compensation been made available?; and Has the Aboriginal group in question has been consulted with respect to the conservation measures being implemented?

R. v. Marshall No 2 November 17, 1999 (S.C.C.)Aboriginal and treaty rights are subject to regulation. The regulation must be shown by the Crown to be justified on conservation or other grounds of public importance. The SCC left it open to future cases to show that the treaty right was intended in 1760 by both sides to include access to resources other than fish, wildlife and traditionally gathered things such as fruits and berries.The word “gathering” was used in connection with the types of resources traditionally “gathered” in an aboriginal economy and which were thus reasonably in the contemplation of the parties to the 1760-61 treaties.

The Supreme Court of Canada left it open to future cases to show that the treaty right was intended in 1760 by both sides to include access to resources other than fish, wildlife and traditionally gathered things such as fruits and berries.The Court stated that the word “gathering” in the Marshall No. 1 majority judgment was used in connection with the types of resources traditionally “gathered” in an aboriginal economy and which were thus reasonably in the contemplation of the parties to the 1760-61 treaties. . The process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Aboriginal group rather than by litigation.

The Treaty right to hunt and trade in game is a commercial hunt that must be satisfied before non-natives have access to the same resources for recreational or commercial purposes.The emphasis is on assuring the Mi’kmaq equitable access to identified resources for the purpose of earning a moderate living. Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights. The Supreme Court of Canada emphasized the importance in the justification context of consultations with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified. (R. v. Sparrow)

The special trust relationship includes the right of the treaty beneficiaries to be consulted about restrictions on their rights. The nature and scope of the duty of consultation will vary with the circumstances.

R. v. Peter Paul 1998 (N.B.C.A.)Thomas Peter Paul, a member of the Pabineau First Nation, removed three bird's eye maple logs from Crown lands without authorization. It was admitted that the removal of the logs was for sale and not for any religious or ceremonial purpose. He relied on the wording in the 1725/26 Treaty. T]hat the said Indians shall not be Molested in their Persons Hunting Fishing & Shooting & Planting on their Planting Ground nor in any other their Lawful Occasions.... The Provincial Court Judge found, because of the language used in the Promises that there was a commercial aspect to the right and because commerce was contemplated in those documents. He found that pre-Confederation New Brunswick legislation did not extinguish the treaty right. Mr. Peter Paul was found not guilty.

On appeal, Mr. Justice Turnbull disagreed with the Provincial Court Judge’s interpretation of the Treaty:With the greatest respect I am unable to agree that the 1725/26 treaties and agreements entered into in Boston, Casco Bay and Annapolis Royal and their subsequent reaffirmations gave the Indians of the present Provinces of Nova Scotia and New Brunswick the unrestricted right to cut trees under the treaty aegis of trade. I agree with the result but for different reasons. Justice Turnbull conducted his own historical research and concluded that Mr. Peter Paul was entitled to be acquitted on the basis of Aboriginal Title. The New Brunswick Court of Appeal found that Mr. Justice Turnbull should not have decided the case on his independent historical research. He should have restricted himself to the evidence at trial.

The New Brunswick Court of Appeal went on to look at Doucette's Promises that "the said Indians shall not be Molested in their Persons Hunting, Fishing & Shooting & Planting on their Planting Ground, nor in any other their Lawful Occasions..." It was argued that the expression "Lawful Occasions" includes the right to harvest wood commercially. The Provincial Court Judge and Justice Turnbull differed in their interpretation of the phrase "Lawful Occasions". Because there was an ambiguity in the words used in the Treaty and no evidence to resolve that ambiguity, both the Provincial Court Judge and Justice Turnbull were left to resolve the problem by engaging in assumptions, which cannot result in the realistic interpretation of the Treaty.

The NBCA found that it was not surprising that the Provincial Court Judge and Justice Turnbull came to opposing conclusions on the meaning of “lawful occasions”. There was not sufficient evidence on which a consistent finding could be reached. There was no evidence regarding the understanding of the parties. Because there was an ambiguity in the words used in the Treaty and no evidence to resolve that ambiguity, both the Provincial Court Judge and Justice Turnbull were left to resolve the problem by engaging in conjecture, which cannot result in the realistic interpretation of the Treaty.

R. v. Bernard 2003 (N.B.C.A.)Joshua Bernard, a member of the Eel Ground Fist Nation, was convicted of unlawful possession of timber taken from Crown lands. The issue raised on his appeal was whether members of the MiramichiMi’kmaq community have the right to harvest and sell timber, growing on Crown lands. This right was based on the Miramichi Treaty of 1761 and Aboriginal Title. The Provincial Court Judge rejected both defences. The NBCA held that Mr. Bernard possessed a treaty right to harvest and sell trees growing on Crown lands . The treaty right was not restricted to natural resources that were traditionally traded at the time the 1761 treaty was signed. The treaty right was not extinguished by pre-confederation provincial legislation and that the legislation constituted an unjustified infringement of the Mr. Bernard’s Treaty right.

R. v. Marshall; R. v. Bernard 2005 (S.C.C.)The treaties of 1760‑61 do not confer on modern Mi’kmaq a right to log contrary to provincial regulation. The truckhouse clause of the treaties was a trade clause which only granted the Mi’kmaq the right to continue to trade in items traditionally traded in 1760‑61.Nothing in the wording of the truckhouse clause indicates a general right to harvest or gather all natural resources then used. The right conferred is the right to trade. The emphasis therefore is not on what products were used, but on what trading activities were in the contemplation of the parties at the time the treaties were made. Only those trading activities are protected. The question is whether the modern trading activity in issue represents a logical evolution from the traditional trading activities at the time the treaties were made. Commercial logging that formed the basis of the charges was not the logical evolution of a traditional Mi’kmaq trading activity in 1760‑61.

Minority DecisionThe Treaty Right includes not only a right to trade but also a corresponding right of access to resources for the purpose of engaging in trading activities. There are limits to the trading activities and access to resources that are protected by the treaty. Only those types of resources traditionally gathered in the Mi’kmaq economy for trade purposes would reasonably have been in the contemplation of the parties to the treaties of 1760‑61.On the facts, the evidence supports the conclusion that trade in forest products was not contemplated by the parties and that logging is not a logical evolution of the activities traditionally engaged in by Mi’kmaq at the time the treaties were entered into

R. v. Sappier and Polchies 2004 (N.B.C.A.) Dale Sappier and Clark Polchies Jr. are members of the Woodstock First Nation. They were charged with unauthorized possession of timber taken from Crown lands contrary to the New Brunswick Crown Lands and Forests Act. They claimed both a Treaty and an Aboriginal right to harvest timber for personal use.The trial judge accepted that the timber was to be used for purposes of constructing furniture and a home, on the Woodstock First Nation. The residue was to be used as firewood.The trial judge concluded that the defendants possessed a treaty right to harvest trees.

The Crown admitted that the Treaty of 1725, which includes the promises of Major Paul Mascarene and the ratifications of 1726 (hereafter the “Mascarene Treaty”) was valid and subsisting. The treaty clause in issue reads as follows:That the Indians shall not be molested in their persons, Hunting, Fishing and Planting Grounds nor in any other their Lawful Occasions by His Majesty’s Subjects or their Dependants…The issue was the meaning of the phrase “nor in any other their Lawful Occasions”, as it would have been understood at the time the Mascarene Treaty was signed.Andrea Bear Nicholas testified on behalf of the Mr. Sappier and Mr. Polchies. Her opinion was that the clause had been inserted with a view to embracing activities, other than hunting, fishing and planting, that the Maliseet would have pursued as a matter of survival. Dr. Stephen Patterson testified on behalf of the Crown. His opinion was that the clause assured the Maliseet that they possessed the same rights as other British subjects, with respect to activities that were lawful.

The NBCA had previously found the meaning of the lawful occaisons phrasein R. v. Paul to be ambiguous in the context of a treaty right to trade commercially in trees harvested from Crown lands. The NBCA Court found that there is no ambiguity with respect to the interpretation of the “lawful occasions” clause so long as the interpretation is restricted to the right to harvest trees for personal use. The ambiguity arises when the question is asked whether the plain meaning of the words can be extended to include harvesting for purposes of trade.

The NBCA found Mr. Sappier and Mr. Polchies possessed a treaty right to harvest timber.What is the scope of that Treaty right?The Court found that it is a treaty right to harvest timber for personal use, on Crown lands traditionally occupied by members of the Mailseet community living on the Woodstock First Nation.

R. v. Sappier; R.v. Gray 2006 (S.C.C.) Mr. Sappier, Mr. Polchies and Mr. Gray possess an Aboriginal right to harvest wood for domestic uses on Crown lands traditionally used for that purpose by their respective First Nations. The right had no commercial aspect and the harvested wood cannot be sold, traded or bartered to produce assets or raise money, even if the object of such trade or barter is to finance the building of a dwelling. Given the SCC’s decision on the Aboriginal Right issue, it did not decide whether Mr. Sappier and Mr. Polchies also would benefit from a treaty right to harvest wood for personal uses

Mi’Kmaq – Malisset Treaty Rights - The Duty to Consult March 26 & 27 2014