R. v. Marshall; R. v. Bernard

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case-name=R. v. Marshall; R. v. Bernard
full-case-name=Her Majesty The Queen v. Joshua Bernard, et al. and Her Majesty The Queen v. Stephen Frederick Marshall, et al.
heard-date= January 17, 18, 2005
decided-date=July 20, 2005
citations=2005 SCC 43, [2005] 2 S.C.R. 220
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history=
ruling= The appeals allowed and the convictions restored. Marshall cross‑appeal is dismissed.
ratio=
SCC=2005-2006
Majority=McLachlin C.J.
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Concurrence=LeBel J.
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"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 to 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.

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 land 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.

ee also

*List of Supreme Court of Canada cases (McLachlin Court)

External links

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