''R v Marshall; R v Bernard'' 2005 SCC 43 is a leading Aboriginal rights decision of the
Supreme Court of Canada where the Court narrowed the test from ''
R. v. Marshall'' for determining the extent of constitutional protection upon Aboriginal practices. The Court held that there was no right to commercial logging granted in the
Peace and Friendship treaties of 1760, the same set of treaties where the right to commercial fishing was granted in the ''R. v. Marshall'' decision. This decision also applied and developed the test for aboriginal title from ''
Delgamuukw v British Columbia''.
Background
This decision considers two separate cases. In the first one, Stephen Marshall (no relation to
Donald Marshall) and 34 other
Mi'kmaq
The Mi'kmaq (also ''Mi'gmaq'', ''Lnu'', ''Miꞌkmaw'' or ''Miꞌgmaw''; ; ) are a First Nations people of the Northeastern Woodlands, indigenous to the areas of Canada's Atlantic Provinces and the Gaspé Peninsula of Quebec as well as the nort ...
were charged with cutting down timber on Nova Scotia
Crown land without a permit. In the second case, Joshua Bernard, a Mi'kmaq 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.
See also
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List of Supreme Court of Canada cases (McLachlin Court)
This is a chronological list of notable cases decided by the Supreme Court of Canada from the appointment of Beverley McLachlin as Chief Justice of Canada
The chief justice of Canada (french: juge en chef du Canada) is the presiding judge of ...
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The Canadian Crown and First Nations, Inuit and Métis
The association between the Canadian Crown and Indigenous peoples in Canada stretches back to the first decisions between North American Indigenous peoples and European colonialists and, over centuries of interface, treaties were established c ...
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Canadian Aboriginal case law
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
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Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous peoples in Canada, and the reigning monarch of Canada (Victoria, Edward VII or George V) ...
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Indian Act
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Section Thirty-five of the Constitution Act, 1982
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 Rig ...
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Indian Health Transfer Policy (Canada)
The Canadian Indian Health Transfer Policy provides a framework for the assumption of control of health services by Indigenous peoples in Canada and set forth a developmental approach to transfer centred on the concept of self-determination in hea ...
External links
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{{DEFAULTSORT:Marshall and Bernard
Canadian constitutional case law
Supreme Court of Canada cases
Canadian Aboriginal case law
2005 in Canadian case law