R v Sappier; R v Gray, 2006 SCC 54 (CanLII)

This case was heard in the Supreme Court of Canada. 

The cases against Mr. Gray and of Mr. Sappier and Mr. Polchies were similar in nature, so the Supreme Court of Canada heard the cases together and issued a joint decision. Prior to this case, the matters had been heard in Gray v R, 2004 CanLII 47133 (NB CA), Gray v R, 2004 NBCA 57 (CanLII), and R v Sappier and Polchies, 2004 NBCA 56 (CanLII).

Mr. Gray was Mi’kmaq and lived on the Pabineau (First Nation) Reserve. Mr. Sappier and Mr. Polchies were Maliseet and members of the Woodstock First Nation. All three were charged with violating the New Brunswick Crown Lands and Forests Act by cutting timber for personal use on Crown lands without authorization. Prior to this case, the respondents had each been acquitted after successfully arguing that they had Aboriginal rights to harvest timber for personal use that were protected by section 35 of the Constitution Act, 1982.

In this case, the Supreme Court of Canada had to decide if the respondents could prove that they had Aboriginal rights to harvest timber. The Court found that the respondents could prove that they had Aboriginal rights and acquitted them. The respondents also argued that they had treaty rights to harvest timber. However, the Court decided that it was not necessary to consider this issue since it had already decided the respondents should be acquitted based on their Aboriginal rights.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal people of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. All three respondents had Indian Status under the Indian Act, so the Court accepted that they were Aboriginal for the purposes of section 35 and qualified for Aboriginal rights. 

The Court also had to decide whether the respondents specifically had an Aboriginal right to harvest timber for personal use. The Court had to consider whether the respondents could prove a number of things as laid out in R v Van der Peet, 1996 CanLII 216 (SCC). The respondents had to prove that cutting timber for personal use was a practice that was integral to the distinctive cultures of their communities at the relevant moment in time (for First Nations, before contact with Europeans). They also had to prove continuity between the historic practice and the modern practice. The Court decided that the respondents could prove that the practice of harvesting wood for domestic purposes was a long-practiced tradition that was integral to both Mi’kmaw and Maliseet culture. The Court also decided that there was continuity between historic practices of using timber for personal uses and the ways the respondents were using the timber. The respondents used the timber to build modern homes, which is not something the Mi’kmaq and Maliseet historically did with timber. However, the Court decided that building modern homes was a logical evolution of the ways the Mi’kmaq and Maliseet had historically used timber. The Court held that the use of timber should not be frozen in its pre-contact form and should be allowed to adapt with present day circumstances. 

The appeals were dismissed. 

View the Decision on CanLII: www.canlii.org/en/ca/scc/doc/2006/2006scc54/2006scc54.html

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