R v Marshall, 2001 NSPC 2
This case was heard in the Provincial Court of Nova Scotia.
The accuseds were Mi'kmaq who were charged with cutting and removing timber from Crown lands without authorization, acts that were offences under section 29 Nova Scotia's Crown Lands Act. The offences occurred throughout Nova Scotia, in five mainland counties and three counties in Cape Breton. The accuseds asserted Aboriginal and treaty rights to do as they had done, and they relied in particular on the Treaty of 1760-61, on claims to Aboriginal title, and on rights that had been recognized by the Royal Proclamation of 1763.
The Court concluded that while the accuseds' ancestors likely had Aboriginal title to the lands surrounding their historical communities, those areas did not extend to the sites where the accuseds had harvested timber. The Court also rejected the accuseds' argument that the Treaty of 1760-61 gave them a right to harvest timber for commercial purposes, and it held that no other Aboriginal rights were applicable.
For these reasons, the Court convicted the accuseds as charged.
Indeed, the court only concluded so in relation to the Nova Scotia sites, finding that there was insufficient evidence to even make out an aboriginal title with regards to Cape Breton. While the Royal Proclamation of 1763 did bolster a claim of aboriginal title, it again was inapplicable to the cutting areas. On the treaty rights claim, the court rejected that any such right extended to commercial harvesting as a modern extension of traditional practices. Thus, the defendants were all found guilty.
These issues came before the courts again in :R v Marshall, 2001 CanLII 4996 (NS SC), R v Marshall, 2001 NSSC 157, R v Marshall (SF), 2002 NSSC 57, R v Marshall, 2002 NSSC 233, R v Marshall, 2003 NSCA 105, and R v Marshall; R v Bernard, [2005] 2 SCR 220, 2005 SCC 43.
View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2001/2001nspc2/2001nspc2.html
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