R. v. Marshall; R. v. Bernard
Encyclopedia
R. v. Marshall; R. v. Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada
where the Court narrowed the test from R. v. Marshall
for determining the extent of constitutional protection upon aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760
", the same set of treaties were the right to commercial fishing was granted in the R. v. Marshall decision.
without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.
At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.
Canadian Aboriginal case law
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court narrowed the test from R. v. Marshall
R. v. Marshall
R. v. Marshall [1999] 3 S.C.R. 456 and R. v. Marshall [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.-Decisions:...
for determining the extent of constitutional protection upon aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760
Treaty with Tripoli (1796)
The Treaty of Tripoli was the first treaty concluded between the United States of America and Tripolitania, signed at Tripoli on November 4, 1796 and at Algiers on January 3, 1797...
", the same set of treaties were the right to commercial fishing was granted in the R. v. Marshall decision.
Background
This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown landCrown land
In Commonwealth realms, Crown land is an area belonging to the monarch , the equivalent of an entailed estate that passed with the monarchy and could not be alienated from it....
without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.
At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.
Opinion of the court
McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the evidence she found that it did not support the conclusion that logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.See also
- List of Supreme Court of Canada cases (McLachlin Court)
- The Canadian Crown and First Nations, Inuit and MétisThe Canadian Crown and First Nations, Inuit and MétisThe association between the Canadian Crown and Aboriginal peoples of Canada stretches back to the first interactions between North American indigenous peoples and European colonialists and, over centuries of interface, treaties were established concerning the monarch and aboriginal tribes...
Canadian Aboriginal case law
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- Indian ActIndian ActThe Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
- Section Thirty-five of the Constitution Act, 1982Section Thirty-five of the Constitution Act, 1982Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
- Indian Health Transfer Policy (Canada)Indian Health Transfer Policy (Canada)The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...