CANADA PROVINCE OF NEW BRUNSWICK IN THE PROVINCIAL COURT OF NEW BRUNSWICK B E T W E E N : HER MAJESTY THE QUEEN, INFORMANT - AND - JOSHUA BERNARD,

Transcription

1 CANADA PROVINCE OF NEW BRUNSWICK IN THE PROVINCIAL COURT OF NEW BRUNSWICK B E T W E E N : HER MAJESTY THE QUEEN, INFORMANT - AND - JOSHUA BERNARD, DEFENDANT CROWN'S TRIAL BRIEF J.T. KEITH MCCORMICK Public Prosecutions Office of the Attorney General 4 th Floor, Centennial Bldg P.O. Box King Street Fredericton, New Brunswick E3B 5H1 Telephone: (506) Facsimile: (506) Counsel for the Informant BRUCE H. WILDSMITH, Q.C Cornwall Road R. R. #2 Barss Corner, Nova Scotia B0R 1A0 Telephone: (902) Facsimile: (902) Counsel for the Defendant

2 I N D E X PART I FACTS...1 PART II ISSUES...7 PART III ARGUMENT...9

3 3 NOTE For ease of reference, the twenty-six volumes of transcript comprising the evidentiary phase of the Defendant s trial have been lettered A to Z in chronological order. The table below relates each transcript volume by date to the letter assigned to it. A January 22, 1999 N September 14, 1999 B April 19, 1999 O September 15, 1999 C April 20, 1999 P September 16, 1999 D April 21, 1999 Q September 17, 1999 E April 22, 1999 R September 20, 1999 F April 23, 1999 S September 21, 1999 G April 26, 1999 T September 22, 1999 H April 27, 1999 U September 23, 1999 I April 28, 1999 V September 27, 1999 J May 4, 1999 W September 28, 1999 K May 5, 1999 X September 29, 1999 L May 6, 1999 Y September 30, 1999 M September 13, 1999 Z October 5, 1999 The reference to transcripts is in parentheses beginning with the letter assigned to each volume and then to page and lines; for example (volume: page / line line) = (A: 1/ 5 10) If more than one page and line is being referred to: (volume: page/line - page/line) = (A: 1/5 8/4). If more than one page, but not any particular line, is being referred to: (volume: page page) = (A: 12 34).

4 PART I FACTS 1. The Defendant stands charged that he on or about the 29 th day of May, 1998, at or near Mullin Stream Road in the County of Northumberland and Province of New Brunswick, while not being authorized, did unlawfully have in his possession timber from Crown lands in violation of section 67(1)(c) of the Crown Lands and Forests Act, thereby committing an offence contrary to section 67(2) of the said Act. 2. At 9:00 a.m. on May 29, 1998, Forest Service Officers Robert Amos and Michael Fletcher were conducting surveillance on the Mullin Stream Road in Northumberland County, New Brunswick. This surveillance was directed to the enforcement of the Crown Lands and Forests Act of New Brunswick (the Act), and specifically, the prohibitions in that Act against the unauthorized cutting, damaging, removal or possession of timber from Crown lands prohibited by section 67(1) of that legislation. 3. Separated by some distance, these Forest Service Officers, appointed under the Crown Lands and Forests Act, were observing a road which intersects the Mullin Stream Road approximately fifteen miles along the Mullin Stream Road from its commencement: (A: 52/1-22). The road under observation lead to an area of forest known to FSO Amos as cut-block 60-52: (A: 51/15-20). This surveillance was prompted by an unauthorized wood-harvesting operation on cutblock The wood-harvesting operation in question, of which members of the Forest Service of the New Brunswick Department of Natural Resources & Energy had previously become aware, was being conducted by aboriginal persons: (A: 50/20 51/8).

5 2 4. The purpose of FSO Amos surveillance of the access road to cut-block was to detect trucks coming out that road from the site of the unauthorized woodharvesting operation: (A: 51/20 52/6). Between 9:30 a.m. and 10:00 a.m. on May 29, 1998, FSO Amos observed a tractor-trailer unit, loaded to approximately one third of its capacity with spruce saw logs, come out the access road to cutblock The tractor portion of this unit was painted grey and had red pinstriping: (A: 53/10 54/19). Within moments of the tractor-trailer unit having reached the intersection of the access road to cut-block and the Mullin Stream Road, FSO Fletcher picked up FSO Amos in his vehicle. FSO s Fletcher and Amos followed the tractor-trailer unit out the Mullin Stream Road to its intersection with the provincial highway and then along that highway to a street on the Eel Ground Indian Reserve, where they discontinued their surveillance: (A: 54/20 56/20). On cross-examination, the Defendant admitted that he had been driving the tractor-trailer unit in question that morning: (B: 38/17-22). 5. Shortly after 1:00 p.m. on May 29, 1999, FSO Amos followed the same tractor-trailer unit up the provincial highway from the Department of Natural Resources and Energy Office in Sunny Corner Northumberland County, to the commencement of the Mullin Stream Road and then, in the Mullin Stream Road (A: 58/1-9). At this time the unit was empty (A: 58/16-18). In crossexamination, the Defendant admitted that he had driven the tractor-trailer unit on both trips during the morning and afternoon: (B: 38/17 39/14). 6. On its return from the area of cut-block 60-52, the tractor-trailer unit, now loaded to approximately one third of its capacity and driven by the Defendant, was stopped by members of the Forest Service and the RCMP. This took place at a point on the Mullin Stream Road approximately one kilometre from its intersection with the provincial highway: (B: 61/11-17). The Defendant was then arrested, while the tractor-trailer unit driven by him, together with its cargo, were seized by Forest Service Officers. This unit was then taken to Fredericton

6 3 where samples were cut from some of the logs on the unit by FSO Richard Kingston (A: 71/20 72/7). 7. On re-examination-in-chief, FSO Amos testified that the area in question was licensed by the Crown to Repap, a forestry company: (A: 76/13 77/17). The Defendant admitted by his counsel that he was in possession of the timber for the purposes of transporting it for sale to Anderson s Mill, a sawmill in Miramichi: (A: 88/3-17). 8. FSO Michael Fletcher testified that on the Morning of May 29, 1999, he had parked his vehicle on a side-road approximately one quarter of a mile further in the Mullin Stream Road from the access road to cut-block 60-52, which FSO Amos had under surveillance. From this position, FSO Fletcher could hear machinery operating from the area of the access road which FSO Amos had under surveillance: (A: 93/18-21). On the afternoon of the same day, FSO Fletcher returned to the Mullin Stream Road, this time with FSO Richard Kingston. At approximately 3:30 p.m., FSO Fletcher received a radio message from FSO Amos as a result of which he observed the same tractor-trailer unit that he had seen previously that morning. This unit, partially loaded and marked Bernard s Trucking, Miramichi, was coming out the Mullin Stream Road: (A: 98/12-22). FSO Fletcher testified that when he saw the unit coming out the Mullin Stream Road that afternoon it was half to three-quarters loaded while in the morning it had been fully loaded (A: 99/3-10). The load on the unit consisted of spruce saw logs (A: 104/3-4). Since he had in fact crossed the boundary of the Crown lands prior to being stopped, the Defendant was arrested for removal of timber from Crown lands without authorization: (A: 123/3-17). 9. Forest Service Officer Richard Kingston testified that on May 29, 1999, at Fredericton, he cut samples from three of the twenty-three (23) logs on the seized tractor-trailer unit: (A: 126/6-10). On May 30, 1999, FSO Kingston, in company with other Forest Service Officers, traveled to cut-block There, he

7 4 compared the samples taken from the logs on the tractor-trailer unit with various stumps in an effort to identify the stumps from which the logs on the unit had been cut. He obtained what he believed was a physical match between one of the log samples and a stump and then cut a sample off this stump and retained it for a scientific comparison (A: 130/8 133/14). This stump sample and the log sample were subsequently examined at the U.N.B. Wood Science & Technology Centre in Fredericton and found to have come from the same tree. A report of the findings of this examination was admitted by the Defendant as Exhibit C On June 2, 1998, FSO Kingston returned to the area of cut-block where he had taken a sample off a stump and showed that stump to FSO Peter Pinder. This was done in order that FSO Pinder might locate the stump using a Global Positioning System (GPS) survey device: (A: 135/6 136/3). On crossexamination, FSO Kingston admitted to being able to match only one sample cut from logs on the tractor-trailer unit with a stump on cut-block When challenged that only one log on the unit had come from cut-block 60-52, FSO Kingston replied that he knew that all the logs had come form the area of the cutting in cut-block 60-52, but that he could not match the log samples to particular stumps in the area: (A: 145/4-8). Also upon cross-examination, FSO Kingston testified that the area on which the stumps in question were located was on lands licenced to Repap: (A: 139/13-21). 11. Forest Service Officer Peter Pinder testified that he took a number of readings with a GPS instrument, including two (numbers 7 and 8) at the stump that FSO Kingston had shown him: (A: 158/15 159/15). FSO Pinder recorded all GPS readings which he took and forwarded them to Mr. Hilary Guimond, a land surveyor: (A: 160/4-6). 12. Mr. Hilary Guimond, a New Brunswick Land Surveyor employed by the Department of Natural Resources and Energy based in Miramichi, testified that he received a series of GPS readings from FSO Peter Pinder (A: 169/6 170/9). Mr.

8 5 Guimond was satisfied that all the readings taken by FSO Pinder were within plotable accuracy (A: 175/17-22). Mr. Guimond plotted the points on the stump identified to FSO Pinder by FSO Kingston and was of the opinion that that stump was on Crown land: (A: 179/2 181/21). On cross-examination, Mr. Guimond was asked to locate several points with reference to the stump and cutblock and to measure distances between these points, which he did. The plan prepared by Mr. Guimond was admitted as Exhibit D During examination-in-chief, the Defendant testified the he was transporting logs from a logging operation conducted by Stephen Paul on Crown land up the Mullin Stream Road: (B: 35/12 36/1). The Defendant was being paid by Stephen Paul, a Mi 'kmaq from Red Bank Indian Reserve, on the basis of the volume of wood which he transported. The volume of wood hauled was to be determined by scaling at Anderson s Mill in Miramichi: (B: 36/7-14). On Crossexamination, the Defendant admitted that he had no licence, or permission from anyone in the Department of Natural Resources and Energy, to be in possession of the timber in question: (B: 38/1-10). No evidence was called by the Defendant to establish that Mr. Stephen Paul had authority under the Crown Lands and Forests Act or any other act of the New Brunswick Legislature, to harvest timber on Crown lands at the locus in quo. 14. No evidence was called by the Defendant to establish that Stephen Paul was acting under the authority of and on behalf of the Red Bank Band. Likewise, the Defendant called no evidence to show that he was acting under the authority or on behalf of the Eel Ground Band. Indeed, the record is devoid of any evidence that either Mr. Paul or the Defendant ever consulted with or received authority from any native organization linked to the Miramichi Mi 'kmaq to engage in harvesting of timber at the locus in quo. 15. The Defendant was not himself conducting any wood-harvesting operation, but was engaged in providing transport services to the operator of a mechanized

9 6 commercial logging operation. This is borne out by the fact that FSO Fletcher heard machinery operating in the area of the locus in quo on the day on which the Defendant was apprehended. There were no other logging operations going on in the area of the Mullin Stream Road at that time.

10 7 PART II ISSUES 16. The following issues are raised in this trial: (a) Does the Defendant s aboriginal community have an aboriginal right to possess timber taken from Crown lands without authority from the Minister of Natural Resources and Energy or without authority under some other act or regulation of New Brunswick (provincial authority)? (b) Does the Defendant s aboriginal community have a treaty right to possess timber taken from Crown lands without provincial authority? (c) Does the Defendant s aboriginal community have a right to possession of timber taken from Crown lands without provincial authority as an incident or aspect of that community s aboriginal title to those lands? (d) Does the Defendant s aboriginal community have a right arising from the operation of Belcher s Proclamation of May 4, 1762, to possession of timber from Crown lands without provincial authority? (e) Does the Defendant s aboriginal community have a right to possession of timber from Crown lands without provincial authority arising from the Royal Proclamation of October 7, 1763? (f) Have any of the alleged rights mentioned in (a), (b), (c), (d) or (e) above been extinguished? (g) Assuming that subsection 67(1)(c) of the Crown Lands and Forests Act infringes one or more of the alleged rights in (a), (b), (c), (d) or (e) above,

11 8 does subsection 67(1)(c) of the Crown Lands and Forests Act constitute a justifiable infringement of any such right or rights?

12 9 PART III ARGUMENT 17. Before addressing the issues set out in paragraph 16 above, some preliminary points merit emphasis. It is critical to any analysis of the issues raised in this case to properly identify the conduct for which constitutional protection under ss. 35(1) of the Constitution Act, 1982, is claimed by the Defendant: R. v. Van der Peet, [1996] 2 S.C.R. 507 per Lamer, C.J.C. at para. s 51-54; R. v. Paul (T.P.) (1998), 196 N.B.R. (2d) 292 (N.B.C.A.) at para [37]. Although the right spoken of by the Court of Appeal in R. v. Paul (T.P.), supra. is an aboriginal right, the principle should apply equally to a claim for constitutional protection based upon an alleged treaty right. 18. What, then, is the activity alleged to be an offence by the Crown and for which the Defendant seeks constitutional protection? It is the possession without provincial authority by the Defendant of timber cut from Crown lands by one Stephen Paul. This timber was cut in the course of Mr. Paul s conducting a commercial wood-harvesting operation on Crown lands without provincial authority. In the Crown s view, the Defendant became a part of this commercial operation when he transported the timber in question from the harvesting site on Crown lands to Anderson's Mill in Miramichi at the request of Mr. Paul. The Defendant assisted others in commercial logging on Crown lands. Commercial logging on Crown lands is the activity for which the Defendant claims constitutional protection by virtue of s. 35(1) of the Constitution Act, The second point which merits emphasis is the question of the burden of proof assigned to each of the parties in such a dispute as the present. The party claiming that an aboriginal right (including any right incidental to aboriginal title) or a treaty right has been infringed by federal or provincial legislation, has the burden of proving the existence of such a right and its infringement by the

13 10 legislation in question: R. v. Sparrow, [1990] S.C.R per Dickson, C.J.C. at p. 1112; R. v. Nikal, [1996] 1 S.C.R per Cory, J. at p The burden of proving extinguishment of an aboriginal or treaty right lies on the Crown: Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 per Hall, J. at p. 404; R. v. Badger, [1996] S.C.R. 771 per Cory, J. at p. 794; Delgamuukw v. British Columbia, [1997] 3 S.C.R The party arguing for justification of any infringement also has the burden of proof of such justification: R. v. Sparrow, supra; Delgamuukw, supra. 20. In the present case, the Defendant is charged with unlawful possession of timber from Crown lands. Any defence put forward by the Defendant must be relevant to the alleged right of the Defendant s aboriginal community to possess timber taken from Crown lands without provincial authority. Absent its relevance to a charge against a Defendant, the Provincial Court of New Brunswick has no jurisdiction to determine questions of title to lands. Questions concerning title to lands are within the jurisdiction of the Court of Queen s Bench of New Brunswick. Therefore, no pronouncement ought to be made as to the existence or scope of any alleged aboriginal title to lands in New Brunswick, unless a right to harvest and possess timber from Crown lands presently exists as an aspect or incident of that aboriginal title. 21. Aboriginal rights and treaty rights are not universal. In R. v. Kruger and Manuel, [1987] 1 S.C.R. 104 at p. 109, Dickson, J. as he then was stated: If the claim of any band in respect of any land is to be decided as a justiciable issue and not a political issue, it should be so considered on the facts pertinent to that band and to that land, and not on any global basis. 22. See also: R. v. Van der Peet, supra, where Lamer, C.J.C. stated at para.[69]: Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis. The

14 11 fact that one group of people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another community has the same aboriginal right. The existence of the right will be specific to each aboriginal community. 23. This principle was applied to treaties in the case of R. v. Sundown (1999), 132 C.C.C. (3d) 353 (S.C.C.) per Cory, J. who states at para.25: Treaty rights, like aboriginal rights, are specific and may be exercised exclusively by the First Nation that signed the treaty. The interpretation of each treaty must take into account the First Nation signatory and the circumstances that surrounded the signing of the treaty. Lamer C.J. was careful to stress the specific nature of aboriginal rights in R. v. Van der Peet, [1996] 2 S.C.R At para. 69 he wrote: The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community. [Emphasis added.] 24. This principle is equally applicable to treaty rights. Dickson C.J. and La Forest J. also emphasized the specific nature of aboriginal and treaty rights in R. v. Sparrow, supra, when they discussed the correct test to apply under s. 35(1) of the Constitution Act, At p this appears: We wish to emphasize the importance of context and a case-bycase approach to s. 35(1). Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case. [Emphasis added.] 25. The import of the cases referred to above (i.e. Kruger & Manuel, Van der Peet and Sundown) is that one is to look at the historical context of the applicable local treaty. Each one of the British/Mi 'kmaq treaties is a local treaty

15 12 conferring local benefits: R. v. Marshall (No. 1), September 17, 1999, S.C.C. unreported per Binnie J. at para. 4. One should not adopt a global approach to the Mi 'kmaq treaties much less attempt to utilize treaties negotiated with other aboriginal groups such as the Maliseets, Passamaquoddies or Abenakis. 26. Aboriginal and treaty rights are not individual rights. They are communal rights which are exercised by the aboriginal group of which an individual is a member: R. v. Sparrow, supra. This principle was affirmed in R. v. Marshall (No. 2), November 17, 1999, (S.C.C.) unreported, the Court remarked as follows at para.17: In the event of another prosecution under the regulations, the Crown will (as it did in this case) have the onus of establishing the factual elements of the offence. The onus will then switch to the accused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local treaties described in the September 17, 1999, majority judgment was made, and was engaged in the exercise of the community s collective right to hunt or fish in that community s traditional hunting and fishing grounds.... Moreover, the treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs The record is devoid of any evidence that either the Defendant or Mr. Stephen Paul were acting under the authority of the local community to which they belonged (i.e. the Miramichi Mi 'kmaq). Therefore, should this court find that the Miramichi Mi 'kmaq have an unextinguished aboriginal or treaty right to harvest logs from Crown lands without provincial authority which is unjustifiably infringed by ss. 67(1)(c) of the Crown Lands and Forests Act, the Defendant must nevertheless be convicted in the absence of such evidence.

16 13 Does the Defendant s aboriginal community have an aboriginal right to possess timber taken from Crown lands without authority from the Minister of Natural Resources and Energy or without authority under some other act or regulation of New Brunswick (provincial authority)? 28. The first step in the process of determining whether an activity can be said to be integral to the distinctive culture of an aboriginal group is to identify precisely the nature of the right which is being claimed: R. v. Van der Peet, supra. per Lamer, C.J.C. at paras 51 to 54. In the present case, the activity is part of a commercial logging operation and the activity for which constitutional protection is sought is commercial logging. The term commercial logging includes the cutting, transportation and sale of logs. 29. The test for the existence of an aboriginal right is set out by Lamer, C.J.C. in R. v. Van der Peet, supra at para. 46: in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. 30. The first question to be resolved is, what is the nature of a right which is integral to the distinctive culture of the aboriginal group claiming the right? The answer is found at para. 55 of R. v. Van der Peet per Lamer, C.J.C.: To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, tradition or custom was an aspect of, or took place in, the aboriginal society of which he or she is part. The claimant must demonstrate that the practice, tradition or custom was a central and significant part of the society s distinctive culture. He or she must demonstrate, in other words, that the practice, tradition or custom was one of the things which made the culture of the society distinctive --- that it was one of the things that truly made the society what it was. 31. To be an aboriginal right, the practice, custom or tradition for which constitutional protection is sought must be shown to have existed prior to contact

17 14 with Europeans: R. v. Van der Peet, supra per Lamer, C.J.C. at para. 44. Practices which arise solely as a response to European influences will not meet the standard for recognition of an aboriginal right: R. v. Van der Peet, supra per Lamer, C.J.C. at para In the present case, Dr. Wicken, the ethno-historian called by the Defendant, estimated that contact between the Miramichi Mi 'kmaq and the Europeans occurred around 1500 to 1534: (G: 114/19-22); (K: 36/16-21). Dr. Patterson, an expert historian called by the Crown, estimated that the Miramichi Mi 'kmaq began participating in the lumbering trade sometime before 1810: (Y: 34/10-17); while Chief Stephen Augustine, a Mi 'kmaq chief, testified that the Miramichi Mi 'kmaq began lumbering somewhere after the 1780 s and maybe into the 1790 s : (O: 133/6-9). This evidence from experts called by both parties indicates that the practice of commercial logging began over two hundred years after contact between the Miramichi Mi 'kmaq and Europeans. This evidence would in itself preclude any successful characterization of commercial logging as an aboriginal right. 33. Moreover, the evidence of Chief Stephen Augustine confirms that participation by the Miramichi Mi 'kmaq, as well as other Mi 'kmaq, in the lumbering trade did not start until the arrival of Europeans and their establishment of saw mills: (O: 126/4 128/2). This admission would suggest that commercial logging by Miramichi and other Mi 'kmaq began as a response to European influences. Such being the case, commercial logging by the Mi 'kmaq, including the Miramichi Mi 'kmaq, could not qualify as an aboriginal right according to the test for the proof of an aboriginal right laid down by Lamer, C.J.C. in R. v. Van der Peet, supra. 34. Finally, there is a complete absence of any evidence to establish that commercial logging was a practice, custom or tradition that was integral to the distinctive culture of the Mi 'kmaq in that it was one of the things that truly made

18 15 Mi 'kmaq culture what it is. Having failed to demonstrate that such was the case, commercial logging cannot be said to be an aboriginal right of the Miramichi Mi 'kmaq. Does the Defendant s aboriginal community have a treaty right to possess timber taken from Crown lands without provincial authority? MASCARENE S TREATY The first of the Mi 'kmaq treaties with Nova Scotia is Mascarene s Treaty of Concluded at Boston on December 15, 1725, between Major Paul Mascarene, representing Nova Scotia, and four Penobscot chiefs or headmen representing some Nova Scotian Mi 'kmaq, this treaty does not appear to include the Miramichi Mi 'kmaq. Several facts point to this conclusion: a) The ratification document I.D. (I.D. 16) signed by several Mi 'kmaq chiefs over the summer of 1726, contains descriptions of the localities that various chiefs or headmen purported to represent, but none of the Indians are identified as being Mi 'kmaq from the Miramichi. b) Tab #182 in Defence volume I.D. 11 (Defence #182) recounts a meeting on Isle St.-Jean (Prince Edward Island) between the French Governor St.- Ovide and various chiefs of Mi 'kmaq from Miramichi, among other places, in On being advised by Governor St.-Ovide of his displeasure at their having attached themselves to the English, they replied that they had been misled, their hearts were not in it and they had in fact refused to go to Annapolis Royal in June to ratify the treaty. This document is discussed in some depth by Dr. Patterson who concludes that the Miramichi Mi 'kmaq did not ratify the treaty (T: 24/10 31/4).

19 16 c) Neither of the two treaties subsequent to Mascarene s Treaty, to which the Miramichi Mi 'kmaq are signatories, the Treaty of 1761 and the Treaty of 1779 purport to renew Mascarene s Treaty. No renewal of any previous treaty is contained in the Treaty of The renewal clause contained in the Treaty of 1779 purports to renew all treaties made with Governor Lawrence and his successors in office. Charles Lawrence became Governor of Nova Scotia in The only treaty made with the Miramichi Mi 'kmaq from that date until the Treaty of 1779 is that concluded at Lt. Governor Jonathan Belcher s farm at Halifax on June 25, Mascarene s Treaty was not renewed by the Miramichi Mi 'kmaq because they had not ratified it in the first place. 36. The Crown submits that on the evidence adduced at trial, the Defendant has failed to prove a treaty right accruing from Mascarene s Treaty. The burden of doing so is on the Defendant: R. v. Sparrow, supra. COPE S TREATY Cope s Treaty of 1752 was entered by Jean Baptiste Cope, Chief of the Schubenacadie Mi 'kmaq and Governor Peregrine Hopson in Although some persons have been prompted to argue that Jean Baptiste Cope represented all of the Mi 'kmaq based upon a flawed version of the treaty published by Thomas Aikens in 1869 which is referred to by Dr. Stephen Patterson: (T: 89/13 90/8) such is not the case. The original version of the proclamation issued by Governor Hopson following the treaty (Crown # 39) clearly identifies Cope as the the chief sachem of the Schubenacadie tribe of Mic mac indians : (T: 92/1 93/10). Governor Hopson s letter of December 6, 1752 (Crown, # 40) outlining his actions in concluding the treaty mentions that the treaty has been concluded with but a small tribe and expresses the hope that it may have the good effect to bring over the rest. (T: 93/20 94/7). These documents clearly indicate that Cope s Treaty of 1752 was concluded with one local Mi 'kmaq

20 17 community in the Schubenacadie area of peninsular Nova Scotia. No evidence was called by the Defendant to suggest that the Miramichi Mi 'kmaq were parties to Cope s treaty. THE TREATIES 38. The next treaty having any relevance to the Miramichi Mi 'kmaq is the treaty signed at Halifax on June 25, 1761, between Lt. Governor Jonathan Belcher and a representative of, inter alia, the Miramichi Mi 'kmaq. This treaty was concluded at a ceremony at Lt. Governor Belcher s farm at which a series of promises, made on behalf of the Indian parties, were accepted by Lt. Governor Belcher. This treaty has direct application to the Mi 'kmaq of the Miramichi. The issue is whether this treaty provides the Miramichi Mi 'kmaq with the right to harvest. 39. In interpreting treaties made with Canada s aboriginal people, the historical context surrounding each treaty should be examined in order to assist in ascertaining the meaning to be ascribed to the terms of the treaty: R. v. Marshall, No. 1, supra, per Binnie, J. at para. 14. The primary source of historical context must be the record of any circumstances surrounding the negotiation and signing of the treaty between the Crown in right of Nova Scotia and the Miramichi Mi kmaq. This is so because, while this treaty is similar to treaties signed on other occasions during with other local communities of the Mi 'kmaq people, the various treaties are separate and distinct treaties. This was stressed by the unanimous judgment of the Supreme Court of Canada R. v. Marshall, No. 2 where the court said at para.17: The British Governor in Halifax proceeded on the basis that local chiefs had no authority to promise peace and friendship on behalf of other local chiefs, in other communities, or to secure treaty benefits on their behalf. The treaties were local and the reciprocal benefits were local. In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local

21 18 community with which the separate but similar treaty was made. (Emphasis added.) 40. An examination of the documentation surrounding the signing of the treaty concluded between the Lt. Governor and the Mi 'kmaq of the Miramichi, among others, on June 25, 1761, reveals that the native parties were not intending to demand any terms. As Dr. Patterson put it in his testimony (U: 100/7-17):... it s important I think, that we understand that it was the intention of the Cape Breton and all other Mi 'kmaq then present, including the Miramichi, it was their intention to yield themselves up without requiring any terms on our part. In other words, it s an unconditional kind of thing. They didn t come with a shopping list. They didn t come with a quid pro quo. They were prepared to accept what appeared in writing and they were demanding nothing else. I think that s significant. 41. The Crown therefore submits that this court should reject any suggestion that it utilize negotiations with the Maliseet or Passamaquoddy people in 1760 or other local Mi 'kmaq communities in 1760 or 1761, as part of the context in which to interpret the treaty signed by the Miramichi Mi 'kmaq. Indeed in the treaty ceremony the chief of the Cape Breton Indians, speaking for all Indians then present, promised in the account of the ceremony (Crown #126) to be your friend and ally, submitting myself to the laws of your government... : (U: 105/4-6). 42. Neither the formal text of the Treaty itself (Crown doc. Tab. #127) nor the account of the treaty signing ceremony mention the cutting of logs or trade in timber. According to Dr. William Wicken, no logs were being traded by any Mi 'kmaq at the time the Treaty of 1761, was signed nor was a trade in logs contemplated by the parties to the treaty at the time of its being signed: (L: 99/10 101/14). Moreover, Chief Stephen Augustine testified that commercial logging was not contemplated by either Indians or British at the time any of the

22 19 relevant treaties were signed (O: 129/6-12); (O: 130/4-8); (O: 131/7-13). In view of these facts, the Crown submits that the Treaty of June 25, 1761, does not constitute a source of entitlement on the part of the Miramichi Mi 'kmaq to engage in commercial logging. THE TREATY OF WINDSOR The Treaty of Windsor (Crown, #170) was concluded on September 22, 1779, at Windsor, Nova Scotia between Michael Franklin, superintendent of Indian Affairs for Nova Scotia and several Indian chiefs and headmen representing Mi 'kmaq residing between Cape Tormentine and Baie des Chaleurs. It is the last known treaty between the British Crown and any group of aboriginal people inhabiting what is now New Brunswick. 44. By this treaty, two things of relevance to the trial of the Defendant are agreed upon. The first of these according to Dr. Stephen Patterson is that the Indian parties agree to renew whatever treaties they respectively signed in They are not going back beyond because the treaties are by this time regarded by both the British and the Mi 'kmaq as the bench mark or foundation treaties: (W: 120/12 121/10). Second, there is a promise from the Crown that it will provide the Indian parties with an opportunity to trade by encouraging traders to come into the Miramichi trade with them: (W: 121/11 122/3). 45. The Treaty of Windsor was concluded during a period when the Miramichi Mi 'kmaq were not engaged in commercial logging. According to Chief Stephen Augustine, commercial logging was not commenced until after the Treaty (of Windsor) in 1779: (O: 133/7-14). Moreover, Chief Augustine did not think that commercial logging by Indian signatories to the various relevant treaties was in the contemplation of any of the parties to the treaties: (O: 129/6-12). If neither party to the treaty anticipated commercial logging, the term other Commoditys

23 20 cannot be interpreted to include saw logs destined for sale and processing into lumber at a sawmill. 46. The Defendant has argued that the gathering and use of wood by the Mi 'kmaq to make various articles which could be traded leads to the conclusion that the harvesting of wood (i.e. commercial logging) by the Defendant is a logical evolution of the traditional gathering protected by the Treaties of 1761 and At the outset, the Defendant s argument lacks any proper evidentiary basis for its assertion. It is undoubtedly the case that articles such as snowshoes, baskets decorated with porcupine quills or canoes were sometimes traded by aboriginal peoples for European trade goods. However, there is no evidence that such articles were crafted specifically for trade to Europeans, as opposed to being made originally for domestic native consumption and sold when the occasional opportunity to do so arose. 48. The evidence of Chief Stephen Augustine was that such articles could be sold but he did not say that they were routinely crafted for the specific purposes of trade. The documentary evidence proffered by both parties contains personal diaries, accounts, price lists and government correspondence relating to the fur trade. This material contains only isolated references to articles other than fur or feathers traded by aboriginal people. If sales of products made from wood by aboriginal persons were transacted in sufficient volume to categorize them as other than occasional and opportunistic, one would expect much more frequent mention of these products in the documentary evidence called by both parties. Such is not the case. 49. As the supreme Court of Canada stated in R. v. Marshall, No. 2, supra. at para.19:

24 21 While treaty rights are capable of evolution within limits, as discussed below, their subject matter (absent a new agreement) cannot be wholly transformed. 50. The above statement by the Supreme Court of Canada begs the question: what does it mean to say a right is wholly transformed? The Crown submits that an activity which is the subject of constitutional protection pursuant to s. 35(1) of the Constitution Act, 1982, becomes wholly transformed when what has evolved ceases to have any cultural attributes identifiable with the aboriginal society within which it originated. The gathering of wood by the aboriginal people to fashion items for everyday use, for religious or social purposes and, occasionally, for sale is indelibly imprinted with the culture of the gatherers. This cultural imprint shows in the method of gathering, the time for gathering and the articles made from those resources. Mi 'kmaq canoes, snow shoes, quilldecorated birch bark boxes or toboggans all bear the stamp of Mi 'kmaq culture. These articles do not lose their distinctive cultural attributes when sold. This is because they are the end-product of a system of gathering and use which is part of Mi 'kmaq culture. That is also why they are collected by museums. 51. There is, on the other hand, no Mi 'kmaq cultural aspect to a saw log awaiting processing at a mill site. Neither is there anything of Mi 'kmaq culture in the mechanical harvesting and transportation of primary forest products to a processing facility. There is no culturally prescribed time for commercial wood harvesting operations. There is no culturally correct manner of harvesting wood commercially. The products which are produced from these primary forest products lumber, plywood, veneer or paper, among others - have no cultural traits attributable to the Mi 'kmaq people. That this is so is due to the fact that the Mi 'kmaq culture did not include activity of the kind in which the Defendant in the present case engaged. Indeed, the Mi 'kmaq people did not engage in commercial logging until roughly three hundred years after contact with Europeans.

25 To hold that commercial logging is the logical evolution of traditional gathering activities would be to hold that activities inextricably intertwined with Mi 'kmaq culture can evolve into those are devoid of any Mi 'kmaq cultural attributes. Such a process would wholly transform traditional gathering practices as they existed in 1760 and 1779, when the applicable treaties were signed. It would also serve a purpose outside that which s. 35(1) of the Constitution Act is designed to achieve. 53. The purpose of s. 35(1) of the Constitution Act, 1982, was set out by Lamer, C.J.C. in R. v. Van der Peet, supra. at para 31 as follows: More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. 54. The extension of a treaty right to include an activity which was alien to the pre-existing culture of the Mi 'kmaq does nothing to reconcile pre-existing Mi 'kmaq society or the practices, traditions and cultures of that society with the sovereignty of the Crown. It is therefore beyond the limits set out in para. 19 of Marshall (No. 2). 55. Finally, the Crown submits that the question of whether the Defendant s aboriginal group has a treaty right to engage in a particular activity, like commercial logging cannot be resolved by asking whether or not some activity has been prohibited by a treaty. What is not prohibited can arguably be said not to have been within the contemplation of the parties to the treaty. The importation, manufacture or distribution of narcotic drugs are not prohibited by

26 23 the relevant treaties. Yet no one could seriously argue that the Defendant s aboriginal group has a communal right to engage in these activities. Other like examples abound but needn t be cited. The point is that the proper approach is not to ask what is prohibited but to determine what activity was contemplated when the treaties were concluded or to ask what forms of activity can be said to have logically evolved from those activities: R. v. Marshall, No. 2. BELCHER S PROCLAMATION 56. The Proclamation of Lt. Governor Jonathan Belcher issued May 4, 1762 does not, in the Crown s submission, provide the Defendant with immunity from conviction of the offence with which he is charged. This is the case for the following reasons: (a) The proclamation (Defence, # 251) is temporary in that it purports to strictly enjoin all persons to avoid all molestation of the said Indians in their said claims, till His Majesty s pleasure in this behalf shall be signified. On its face, the proclamation does not permanently enjoin all persons from molesting the Indians in their claims. This injunction is to last only until His Majesty s pleasure in this behalf shall be signified. In the words of Dr. Stephen Patterson, the Board of Trade in its subsequent criticism of Lt. Governor Belcher for his having issued the proclamation failed to recognize that in fact Belcher had used very cautious language and that he in fact had not reserved on any permanent basis land to the natives nor had he recognized a claim : (U: 151/14-17). In this respect, Dr. William Wicken testified that the proclamation did not purport to permanently determine the validity of the Indian claim (K: 93/18 94/2). This is also confirmed by the letter of Belcher himself to the Board of Trade dated July 2, 1762 (Crown, #139) in which he states that the claim should at least be entertained by the Government till his majesty s pleasure should be signified ;

27 24 (b) The proclamation does not purport to fetter the Crown in its dealings with the area of the claim. It is directed to persons. Furthermore, the persons who are to remove themselves from the area of the claim are those who have possessed themselves of part of the area claimed without lawful authority. Dr. Wicken conceded in the course of cross-examination that only those persons within the claimed area without lawful authority were to remove themselves. Such a lawful authority could come from the Governor and Council of Nova Scotia or the Privy Council and could take the form of a licence of occupation or a grant: (K: 89/22 91/6); (c) The proclamation was issued in respect of a return made to Lt. Governor Belcher for a narrow purpose totally unconnected with the right claimed by the Defendant in the present case. In Lt. Governor Belcher s letter of July 2, 1762 to the Board of Trade, he describes the nature of the claim in the following words: A return was accordingly made to me for a Common right to the Sea Coast from Cape Fronsac onwards for Fishing without disturbance or Opposition. (d) The Indian claim which the proclamation was intended to protect in the interim was therefore restricted to the sea coast for the purposes of fishing. This is supported by Belcher s further remark in the same letter that: After the Proclamation was issued, no claims for any other purposes were made. 57. The Crown s position is therefore that the proclamation was never meant to protect activities like cutting timber and was never intended to apply to inland areas such as the location where the logs in this case were cut. 58. In any event the Indian claim was disallowed by the King after a consideration by the Board of Trade of Mr. Joshua Major s petition to them to revoke the proclamation. The Board of Trade subsequently sent instructions on this matter to

28 25 Governor Montagu Wilmot dated March 20, 1764 (Crown, #157). At page 90, the Board of Trade, after characterizing Belcher s proclamation as having been: issued in His Majesty s name, without any authority from His Majesty, and directly contrary to the true Spirit and meaning of those instructions, upon which it is alleged to be founded ; instructs Governor Wilmot that it would be highly necessary for him to signify to the Indians who made the claim His Majesty s disallowance of such claim. In reply, Governor Wilmot wrote to the Board of Trade on June 24, 1764 (Defence doc., Tab #271) advising the Board that the claims set up by some of the Tribes on Mr. Belcher s Proclamation seem to have subsided on some explanations they have met with accidentally. Any issue as to whether the Indian claimants had been advised of His Majesty s disallowance seems therefore to be resolved with this assertion by Governor Wilmot. 59. The expert witnesses called by the Defendant were divided over whether a formal disallowance of the Proclamation was necessary. Dr. John Reid was of the opinion that a formal disallowance by the King on the advice of the Privy Council was necessary. Dr. William Wicken opined that such a disallowance could come through the Board of Trade (K: 92/21 93/3). In any event, Lt. Governor Belcher himself appears to have thought he could revoke his proclamation. As recorded in the minutes of the Council of Nova Scotia on August 11, 1763, (Defence, #262), he approached the Council to seek their opinion "whether it will be prudent for him to issue a Proclamation to revoke or alter the Proclamation which he had issued on the 4 th of May 1762, respecting the Indians claims. The Crown suggests that this action by Lt. Governor Belcher belies the need for a formal revocation by the King in the Privy Council. 60. For the reasons set out above, the Crown submits that Belcher s Proclamation does not afford the Defendant a viable defence to the charge for which he is being tried.

29 26 ROYAL PROCLAMATION OCTOBER 7, The Defendant relies upon the Royal Proclamation of October 7, 1763 (Royal Proclamation) as a defence to the charge against him. The so-called Indian provisions of the Royal Proclamation have been pleaded numerous times as a defence to regulatory charges and civil actions in this province. In Doe dem. Burke v. Cormier (1890), 30 N.B.R. 142 (N.B.C.A.), the Court of Appeal of this province held that those provisions did not apply to New Brunswick. The latest pronouncement on the territorial application of the Royal Proclamation is that of LaForest, J. in Delgamuukw, supra. at para. 200, where he states in referring to the reservation clause contained in the Royal Proclamation: In clear terms vast tracts of territory (including large portions of the area now comprising Ontario, Quebec, and the prairie provinces) were reserved for the aboriginal peoples. 62. Conspicuous by their absence in Justice La Forest s description of the Canadian portion of the Indian country created by the Royal Proclamation (much of the Indian country was comprised of territory now within the United States) are the Maritime provinces. 63. In a similar vein, by their judgment in Re Labrador Boundary, [1927] 2 D.L.R. 401 (J.C.P.C.) at p. 421, the Judicial Committee of the Privy Council has held that the Indian country reserved in the Royal Proclamation was located around the Great Lakes in the Interior of the continent. Viscount Cave, L.C. in rendering judgment for the entire committee stated as follows: The reservation is confined to lands occupied by the said Indians that is to say, those who are referred to in the next preceding paragraph of the Proclamation as nations or tribes of Indians with whom The King was connected and who lived under his protection; and it appears from the report of the Lords of Trade, dated June 8, 1763, on which the Proclamation was based, that the Indians so described consisted of those

30 27 tribes of the Six Nations who were settled round the great lakes or beyond the sources of the rivers which fell into the River St. Lawrence from the north. 64. The report of the Lords of Trade dated June 8, 1763 (Crown, #148) is described by the Judicial Committee of the Privy Council earlier in the judgment of Viscount Cave at pp in the following terms: The Lords of Trade replied by an elaborate report dated June 8, 1763, in which, after setting out the advantages which, in consequence of the cession of French Canada, would accrue to the fishing and fur trades and the planting and settlement of North America, they recommended that three new governments should be erected under the names of Canada, East Florida and West Florida, with certain boundaries indicated in the report, and that certain lands outside those limits described in the report as all the lands lying about the Great Lakes and beyond the sources of the rivers which fall into the river St. Lawrence from the north should be left as an Indian country, open to trade but not to grants or settlements. After some discussion as to the boundaries of the proposed new Government of Canada (which it was decided to call Quebec), The King agreed to the proposals of the Lords of Trade, with the addition of a provision that the interior country to be reserved for the use of the Indians should be placed under the control of a military Commander-in-Chief. A draft proclamation for giving effect to this decision was accordingly prepared by the Lords of Trade, and was approved for issue at a meeting of the Privy council held on October The Crown submits that this case shows not only that the reservation of the Indian country in the Proclamation was never intended to include, and therefore does not include, what is today New Brunswick. This decision also illustrates the point that the intent of the report is to be found in its supporting documentation and particularly in the report of the Lords of Trade (i.e. the Board of Trade) to the King dated June 8, Dr. Patterson testified extensively on the supporting documentation surrounding the Royal Proclamation including the report of the Board of Trade of June 8, 1763.