This appeal was heard in the New Brunswick Court of Appeal, following the outcomes in R v Sappier and Polchies, 2003 NBPC 2, R v Sappier, 2003 NBQB 228, and R v Sappier and Polchies, 2003 NBQB 389.

At trial, the Respondents, Dale Sappier and Clark Polchies, were found not guilty of the charge of possessing timber taken from government lands contrary to the New Brunswick Crown Lands and Forest Act. They had successfully relied on a treaty rights argument at trial, which was affirmed at the first appeal.

In this appeal, the question before the Court was: “[Did] the respondents possess either a treaty or an Aboriginal right, or both, to harvest trees for personal use on Crown lands traditionally occupied by members of the Maliseet community now living on the Woodstock (First Nation) Reserve?”

The Court concluded they had both. Looking first at the treaty right issue, the Court found that the Treaty of 1725 supported a right to harvest for personal use, and the modern form of that right was a proper evolution from its historic form. With regard to Aboriginal rights, the Court examined the issue using five criteria. First, the Court considered the nature of the right claimed, finding that it was not too broad and that it amounted to “a right to harvest trees for personal use”. Second, the Court considered whether the Aboriginal right claimed extended over the area where the Respondents had been caught. It was found that it did, on the basis that that land had been traditionally occupied by the Respondents’ people (the Maliseet of Woodstock First Nation). Third, the Court examined whether the Aboriginal right claimed had been exercised prior to European contact. The Court accepted this as obvious. Fourth, the Court determined that the right claimed was integral to the distinctive culture of the Maliseet, and the fact that some of the uses were modern was not an issue. Fifth, it was accepted that the modern form of the right represented a continuity of historic practice. For all these reasons, the appeal was dismissed.

After this decision, the matters raised were brought before the Courts again in the following decisions: Gray v R, 2004 NBCA 57, Gray v R, 2004 CanLII 47133 (NB CA), and R v Sappier; R v Gray, [2006] 2 SCR 686, 2006 SCC 54.

View the Decision on CanLII: www.canlii.org/en/nb/nbca/doc/2004/2004nbca56/2004nbca56.html

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