Case information

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Aboriginal law - Constitutional law - Treaty rights - Aboriginal rights - Whether the Court of Appeal erred in determining that the Respondents have a treaty right to harvest trees for personal use from Crown lands - Whether the Court of Appeal erred in determining that the Respondents have an aboriginal right to harvest trees for personal use from Crown lands - Whether the Court of Appeal erred when it incorporated evidence into its reasons for judgment from another trial and from an historical article which was not an exhibit and not part of the trial record .

The following facts have been taken from the Court of Appeal’s reasons for judgment. The Respondents were Maliseet living in the Woodstock First Nation. They were charged with the unauthorized possession of timber taken from Crown land contrary to the Crown Lands and Forests Act, S.N.B. 1980, C-38.1, s. 67(1)(c). The alleged offence occurred January 12, 2001. The timber was to be used for constructing furniture and a house on the reserve and the residue was to be used as firewood. The timber and its derivative products were not to be traded. The essential elements of the charge were admitted. The Respondents, however, raised the defences that they had a right to harvest timber for personal use pursuant to (1) a treaty right and (2) an aboriginal right.

The Court of Appeal noted that the “Crown has simplified this appeal in several material respects”. Robertson J.A. continued: “Assuming that a treaty or aboriginal right existed, the Crown does not allege that the right was extinguished by either pre- or post-Confederation legislation. Correlatively, the Crown accepts that the provisions of the Crown Lands and Forests Act infringe the alleged right and that the infringement cannot be justified under the so-called Sparrow/Badger test”. The Crown also admitted that the Treaty of 1725 (the Mascarene Treaty) was, as stated by Robertson J.A., “valid and subsisting and that the defendants are beneficiaries of it”. The Respondents were found to be not guilty at trial. The Crown’s subsequent appeals, first to the Court of Queen’s Bench and then to the Court of Appeal, were dismissed.