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