Bulletin: SCC Upholds Logging for “Domestic Uses”
“If aboriginal rights are not permitted to evolve and take modern forms, then they will become utterly useless. Surely the Crown cannot be suggesting that the respondents, all of whom live on a reserve, would be limited to building wigwams.” (para 49)
The Supreme Court of Canada has upheld the right of Maliseet and Mi’kmaq in New Brunswick to harvest logs for domestic uses in R v Sappier; R v Gray, 2006 SCC 54 [Sappier].
Dale Sappier and Clark Polchies are Maliseet, members of the Woodstock First Nation. They had sixteen hardwood logs when they were charged. There were enough logs for flooring and furniture, with the remainder for firewood. Darrell Gray is a Mi’kmaq member of the Pabineau First Nation. He was charged with having four bird’s eye maple. He stated that the wood was for making household cabinets, coffee and end tables and mouldings for his residence. At the New Brunswick Court of Appeal, Robertson J.A. found that in both cases, the accused could rely on an Aboriginal right to harvest logs.
While the Supreme Court of Canada upheld the Appeal Court decisions, the majority (per Bastarache J.; McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring) narrowed the right to domestic use of the wood by the person cutting the logs. Sale or barter, even among members of the Band, would not be covered by the Aboriginal right. Binnie J., in a short concurring judgement would have found that the right was a little wider. Noting that there would be a division of labour among members of the community, he would have allowed sale and barter within the community. Logging for commercial purposes was rejected by the Supreme Court of Canada last year in R v Bernard; R v Marshall,  2 SCR 220.
The SCC found that pre-Confederation treaties did not extinguish the right. The SCC did not have to proceed to a justification analysis because the province admitted that the legislation infringed the right and that there was no evidence put forward for justifying the infringement. The SCC touched upon the argument that harvesting the trees were treaty rights under the treaties of 1725 and 1726. However, given its finding on the Aboriginal rights issue, it was not necessary to decide on the treaty rights issues.
Modification of the Van der Peet Test
The first case to set down tests for determining Aboriginal rights was R v Van der Peet,  2 SCR 507. In that decision, the Supreme Court of Canada held that the practice must have originated prior to contact and must have been “integral to the distinctive culture” of the Aboriginal group claiming the rights. While the tests developed by the majority in Van der Peet have provided courts with some means to constrain the scope of Aboriginal rights, the tests themselves have proved difficult to administer. There are clear evidentiary difficulties with a requirement to provide evidence prior to the arrival of the settlers.
There are also clear difficulties, from an anthropological perspective, with the concept of “distinctive culture” and identifying elements which are “integral” rather than merely “incidental” to that culture. The reasoning of the majority in Van der Peet forced subsequent courts and litigants to take a snapshot of Aboriginal society at the scintilla before contact. Two dissents in that case, one by the current Chief Justice and one by L’Heureux-Dubé J. provided a less static, more organic process for identifying the practice that should be protected. Interestingly, the unanimous decision in Sappier draws on the approach of the dissenting opinions in Van der Peet and moves away from the more rigid constructions of the test for Aboriginal rights.
What Practices are “Integral” and “Distinctive”?
The SCC finds that the object of the Van der Peet test is to provide cultural security and continuity for the particular aboriginal society. It seems to me that this statement has four implications, all of which are addressed in the decision.
The first implication is that the SCC finally rejects the outmoded and unworkable notion that the practice needs to be at the “core” peoples’ identity or a “defining feature” in order to be integral. Bastarache J. finds these tests too restrictive:
I think it necessary to discard the notion that the pre-contact practice upon which the right is based must go to the core of the society’s identity, i.e. its single most important defining character. This has never been the test for establishing an aboriginal right. This Court has clearly held that a claimant need only show that the practice was integral to the aboriginal society’s pre-contact distinctive culture. (para 40)
Bastarache J. blames these tests for the extreme conclusion reached by the trial judge in the Sappier case. Cain J. had held that Maliseet culture would not have been “fundamentally altered” had wood not been available because “[t]he society would in all probability have used some other available material.”
The second implication is that pre-contact practices that are crucial to the survival of the society can be considered as “integral” to that society. This may seem like an obvious statement, but there was a debate about whether the fact that all humans must eat made the practice of getting food un-“distinctive” and not integral. On this point, Bastarache J. points out that the means of sustenance could be distinctive and integral.
The third implication is that distinctiveness is not to be defined by stereotypes and cultural traits that are “anthropological curiosities”. Here, Bastarache J. draws from the dissents of the current Chief Justice and L’Heureux-Dubé J. in Van der Peet who critiqued the reliance of the majority’s judgement on the concept of “distinctiveness.” In Sappier, Bastarache J. suggests that the test of distinctiveness should be redirected into a different inquiry.
The focus of the Court should therefore be on the nature of this prior occupation. What is meant by “culture” is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits. The use of the word “distinctive” as a qualifier is meant to incorporate an element of aboriginal specificity. However, “distinctive” does not mean “distinct”, and the notion of aboriginality must not be reduced to “racialized stereotypes of Aboriginal peoples” (para 45).
The final implication is that there must be considerable flexibility in placing the practice in a modern context. In Sappier, the Crown argued that the use of logs to build modern structures could not be considered an evolution of traditional practices. In rejecting this argument, Bastarache J. stated that “if aboriginal rights are not permitted to evolve and take modern forms, then they will become utterly useless. Surely the Crown cannot be suggesting that the respondents, all of whom live on a reserve, would be limited to building wigwams” (para 49).
What is Next in New Brunswick?
The Crown has admitted that its current legislation infringes the Aboriginal right to harvest trees for domestic uses. The question now is how the current legislation will be changed in order to accommodate that right. Under the test developed in R v Sparrow,  1 SCR 1075 [Sparrow], the Crown will first have to ensure that its legislation has a valid legislative objective. In Sparrow, the legislative objective was quite restricted, conservation being given as an example. In subsequent cases, the valid legislative objective was given greater scope to include matters such as regional fairness (R v Gladstone,  2 SCR 723 [Gladstone]) or the settlement of “foreign populations” and associated infrastructure (Delgamuukw v British Columbia,  3 SCR 1010 [Delgamuukw]).
I would think that the legislative objective should be quite narrow in this case, leaning toward the test enunciated in Sparrow. Sparrow involved fishing for food and ceremonial purposes. Sappier involves harvest for domestic use. Both are cases where the upper limit of the harvest will be determined by the internal needs of the community. These cases are unlike Gladstone which involved commercial fishing and Delgamuukw which involved Aboriginal title. The situations in Gladstone and Delgamuukw have potential for much greater impacts outside of the Aboriginal community.
In the next step, the Crown will also have to consult with the Aboriginal nations on the legislation and ensure that the harvest for personal uses is given priority over commercial uses (Sparrow). The Crown has some ability to monitor the harvest of wood. Should it wish to do so, a licensing scheme might be appropriate (R v Nikal,  1 SCR 1013) although the conditions on the licence could not restrict the harvest of trees for personal use unless the restrictions were justified for conservation purposes (R v Badger,  1 SCR 771).
Perhaps the greatest challenge for the Crown will be in determining how address pre-existing claims on the timber by timber companies. Certainly, it is no defence to say that the trees are privately “owned” and not available to Aboriginal people for their use. There will have to be a period of transition while protocols are developed. In the future, there is no reason that logging licenses could not include a proviso that Aboriginal harvest for domestic uses will be permitted.
On the First Nation side, there will have to be rules developed on how to conduct the harvest. The Courts of Appeal in last year’s commercial logging cases in both Nova Scotia (Marshall) and New Brunswick (Bernard) addressed the issue of communal authority: that is, whether an individual member of the community must have authorization from the First Nation to engage in the protected activity. In Sappier, Bastarache J. does not address the matter directly, but alludes to the issue:
The right to harvest wood for domestic uses is a communal one. Section 35 recognizes and affirms existing aboriginal and treaty rights in order to assist in ensuring the continued existence of these particular aboriginal societies. The exercise of the aboriginal right to harvest wood for domestic uses must be tied to this purpose. The right to harvest (which is distinct from the right to make personal use of the harvested product even though they are related) is not one to be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve. It is a right that assists the society in maintaining its distinctive character. (para 26)
Implications for the Rest of Canada
This decision arises in the context of the Mi’kmaq and the Maliseet. They did not sign treaties which purported to surrender their land. Therefore, there needs to be some thought on the extent to which this decision may be applicable in areas covered by the “numbered treaties”. These treaties include clauses which purport to surrender all of their traditional territory. However, the treaties also recognize the right of the treaty signatories to continue hunting, fishing or trapping on traditional lands that are not taken up for mining, settlement and lumbering.
If these clauses are seen as recognition of the means for cultural survival, there may be an argument that the exercise of Aboriginal rights (including the harvesting of trees for domestic purposes) should be permitted. Certainly, the SCC has already found that treaty lands cannot be taken up without consultation with the Aboriginal nation (Mikisew Cree v Canada,  3 SCR 388). Undoubtedly, First Nations will argue that practices not addressed in the treaty (such as harvesting trees) continue in force as Aboriginal rights and should be recognized as such.
In areas where treaties have not been signed, the case will have more immediate impacts. A First Nation which can show reliance on wood for survival will be able to argue that they have a right to harvest wood for domestic use. British Columbia in particular, like New Brunswick, will have to begin consultations with its First Nations on how to approach the issue.
* This commentary will appear in the upcoming Annotated Indian Act and Aboriginal Constitutional Provisions.