The Supreme Court of Canada recently decided that two men in the maritimes of Canada had an aboriginal right to cut timbers without a provincial license to harvest wood:
http://scc.lexum.umontreal.ca/en/2006/2006scc54/2006scc54.html. In its decision, the court relied on my article: Cheng, Chilwin Chienhan. “Touring the Museum: A Comment on R. v. Van der Peet” (1997), 55 U.T. Fac. L. Rev. 419.
An excerpt of the Court's summary of the judgment is as follows:
The respondents, S and P who are Maliseet and G who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. They were acquitted at trial. S and P’s acquittals were upheld by the Court of Queen’s Bench and the Court of Appeal. G’s acquittal was set aside by the Court of Queen’s Bench but restored on appeal. G did not pursue his treaty right claim before the Court of Appeal or before this Court.
Held: The appeals should be dismissed. The respondents made out a defence of aboriginal right.
Per McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. Aboriginal rights are founded upon practices, customs, or traditions which were integral to the distinctive pre‑contact culture of an aboriginal people. Here, the way of life of the Maliseet and of the Mi’kmaq during the pre‑contact period was that of migratory peoples who lived from fishing and hunting and who used the rivers and lakes of Eastern Canada for transportation. The record also showed that wood was used to fulfill the communities’ domestic needs for such things as shelter, transportation, tools and fuel. The relevant practice in the present cases, therefore, must be characterized as a right to harvest wood for domestic uses as a member of the aboriginal community. This right so characterized has no commercial dimension and the harvested wood cannot be sold, traded or bartered to produce assets or raise money, even if the object of such trade or barter is to finance the building of a dwelling. Further, it is a communal right; it cannot be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve. Lastly, the right is site‑specific, such that its exercise is necessarily limited to Crown lands traditionally harvested by members’ respective First Nations. In these cases, the respondents possessed an aboriginal right to harvest wood for domestic uses on Crown lands traditionally used for that purpose by their respective First Nations. ...
Courts must be flexible and be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available.
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A practice undertaken for survival purposes can be considered integral to an aboriginal community’s distinctive culture. The nature of the practice which founds an aboriginal right claim must be considered in the context of the pre‑contact distinctive culture. “Culture” is an inquiry into the pre‑contact way of life of a particular aboriginal community, including means of survival, socialization methods, legal systems, and, potentially, trading habits. The qualifier “distinctive” incorporates an element of aboriginal specificity but does not mean “distinct”. The notion of aboriginality must not be reduced to racialized stereotypes of aboriginal peoples. A court, therefore, must first inquire into the way of life of the pre‑contact peoples and seek to understand how the particular pre‑contact practice relied upon by the rights claimants relates to that way of life. A practice of harvesting wood for domestic uses undertaken in order to survive is directly related to the pre‑contact way of life and meets the “integral to a distinctive culture” threshold. [38] [45‑48]
The nature of the right cannot be frozen in its pre‑contact form but rather must be determined in light of present‑day circumstances. The right to harvest wood for the construction of temporary shelters must be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. The site‑specific requirement was also met. The Crown conceded in the case of S and P and the evidence established in the case of G that the harvesting of trees occurred within Crown lands traditionally used for this activity by members of their respective First nations. [48] [52‑53]
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I am happy that the court chose to adopt an aboriginal right that recognized that aboriginal rights must evolve from their pre-contact forms. I however maintain the concern that I expressed in my earlier article. The Court is requiring Aboriginals to define how their culture is "distinct" from other forms of community life. This still requires Canada's First Nations to define themselves based on their differences from the rest of the society rather than an acknowledgement that First Nations can pursue cultural and community activities simply because
they can as quasi-sovereign communities which existed before European contact and the foundation of English common law and asserted jurisdiction.
On the other hand, I hope that this kind of decisions lays greater groundwork for Canadian governments and First Nations to reach agreements and accomodations that are based on our mutual and common interests rather than continuing to drive cultural wedges between communities. While such a development may help in healing past injustices, it makes it more difficult to achieve future reconciliation.
