R v Bernard, 2003 NBCA 55 (CanLII)

This appeal was heard in the New Brunswick Court of Appeal.

The appellant, Joshua Bernard, had been convicted at trial of unlawful possession of timber taken from government lands. At trial, Mr. Bernard had argued that he had a treaty right to harvest timber which was protected by section 35 of the Constitution Act, 1982. He also argued that the Miramichi Mi’kmaw community had Aboriginal title to the lands where he had been harvesting timber. The trial judge had rejected these arguments and found Mr. Bernard guilty. Mr. Bernard appealed this decision to the New Brunswick Supreme Court. The Supreme Court upheld the trial judge’s ruling. In the current case, Mr. Bernard appealed that decision to the New Brunswick Court of Appeal. 

The Court first considered whether Mr. Bernard had a treaty right to harvest timber where he did. Mr. Bernard was a member of the Miramichi Mi’kmaw community. This community was a signatory to the Miramichi Treaty of 1761. Mr. Bernard argued that because of this, he had a treaty right to harvest timber in the area in which he had been found. The Court decided that Mr. Bernard did have this treaty right. The Court decided that the treaty granted the Miramichi Mi’kmaq harvesting rights. The Court also decided that these rights were protected by section 35 of the Constitution Act, 1982. Section 35 recognizes and affirms the Aboriginal and treaty rights that existed at the time the Act came into effect. This means that a treaty must have been valid at the time the Act was made in order for it to be protected by section 35. The Court held that the Miramichi Treaty had not been extinguished between the signing of the treaty and the coming into force of the Constitution Act, 1982, which meant that the rights the treaty gave the Miramichi Mi’kmaq were protected. The Court also found that the legislation in place infringed this treaty right without justification. 

The Court also had to decide whether the Miramichi Mi’kmaq had Aboriginal title over the Northwest Miramichi watershed where Mr. Bernard had been harvesting timber. The Court found that the community did not have title to this land. To prove his community had Aboriginal title, Mr. Bernard had to prove three things as set out in the test developed by the Supreme Court of Canada in Delgamuukw v British Columbia, 1997 CanLII 302 (SCC). The Court held that the Miramichi Mi’kmaq must have occupied the Northwest Miramichi watershed before British sovereignty (legal control) of that land began. This occupation must have been exclusive. Finally, there must have been continuity between the community’s pre-sovereignty occupation of the area and its present occupation. The trial judge had decided that the Miramichi Mi’kmaq did not have title to the Northwest Miramichi watershed because they had not had exclusive occupation of it prior to British sovereignty. In this case, the majority of the Court found that Mr. Bernard could not prove his community had Aboriginal title to the area where he had been harvesting timber.

Mr. Bernard also argued that the Miramichi Mi’kmaq were given Aboriginal title to the area by Belcher’s Proclamation of 1762 and the Royal Proclamation of 1763. The Court decided that these sources were not enough to establish Aboriginal title on their own. 

Since the Court found that Mr. Bernard had a treaty right to harvest timber where he had been found, the Court allowed Mr. Bernard’s appeal and set aside his conviction.

View the Decision on CanLII: www.canlii.org/en/nb/nbca/doc/2003/2003nbca55/2003nbca55.html

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