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

This case involved nine appellants. At trial, they had been convicted of harvesting timber on government land without authorization, which violated section 67(1)(c) of the New Brunswick Crown Lands and Forests Act. The appellants appealed this conviction before a summary conviction appeals court, which upheld their convictions. In this case, the appellants once again appealed their conviction. 

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. The appellants argued that they had a constitutionally protected right to harvest and sell timber under section 35 because they were covered by treaties that gave them this right. Four of the appellants were Miramichi Mi’kmaq and claimed that they were had a treaty right to harvest and sell timber under the Miramichi Treaty of 1761. Another four were Richibucto Mi’kmaq and claimed the Richibucto Treaty of 1760 gave them this right. The last appellant was of Maliseet descent and claimed that he had this right under Mascarene’s Treaty (which was concluded in Boston in 1725 and later renewed in 1749 and 1760). 

The trial judge had decided that, based on R v Bernard, 2003 NBCA 55 (CanLII), treaty rights to harvest timber only covered harvesting the timber for personal use. It held that there was not a treaty right to harvest timber to sell.  

The appellants appealed this decision to the New Brunswick Court of Queen’s Bench. The appellants argued once again that they had treaty rights to harvest and sell timber. In R v Marshall, 1999 CanLII 665 (SCC) and R v Marshall, 1999 CanLII 666 (SCC), the Supreme Court of Canada decided that Mi’kmaw treaty rights to harvest resources could include the right to harvest resources for commercial use. However, it decided that this right only included selling resources to earn a “moderate livelihood.” The Court of Queen’s Bench decided that the appellant’s harvesting and sale of timber did not amount to earning a moderate livelihood. For this reason, it upheld the appellant’s conviction.  

In the current appeal, the Court decided that the Mi’kmaw applicants could not prove that they were harvesting timber for the purpose of earning a moderate livelihood. For this reason, it held that they did not have treaty rights to harvest timber as they had been. It also decided that the Maliseet appellant did not have a treaty right to harvest timber where he had been harvesting it. Although he had rights under Mascarene’s Treaty, this treaty did not cover the territory in which he had been harvesting timber.

The Court of Appeal assessed both whether the appellants should be given leave (permission) to appeal their case and whether their appeal should succeed. The Court decided that it would grant the appellants leave to appeal. However, it dismissed the appeal for the reasons explained above. 

View the Decision on CanLII: www.canlii.org/en/nb/nbca/doc/2003/2003nbca60/2003nbca60.html

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