R v Marshall; R v Bernard

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 where 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 were 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 commercial logging under the treaties. From the evidence she found that it did not support the conclusion that commercial 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 Métis
• Canadian Aboriginal case law
• Numbered Treaties
• Indian Act
• Section Thirty-five of the Constitution Act, 1982
• Indian Health Transfer Policy (Canada)

External links

• Full text of Supreme Court of Canada decision available at LexUM and CanLII

Canadian Aboriginal law
Politics, law and legislation	Indigenous and Northern Affairs Canada The Canadian Crown and Aboriginal peoples Canadian Indian residential school system High Arctic relocation Fred Quilt inquiry Ipperwash Crisis
Aboriginal law	Royal Proclamation of 1763 Constitution Act, 1867 Section 35 of the Constitution Act, 1982 Douglas Treaties 1969 White Paper Kelowna Accord Numbered Treaties Indian Act Royal Commission on Aboriginal Peoples First Nations treaties in British Columbia Indian Health Transfer Policy
Case law	Attorney General of Canada v. Lavell R. v. Badger Calder v. British Columbia Chippewas of Sarnia Band v. Canada Corbiere v. Canada Daniels v. Canada Delgamuukw v. British Columbia Native Women's Association of Canada v. Canada Kruger and al. v. The Queen R. v. Marshall; R. v. Bernard R. v. Marshall Mitchell v. M.N.R. Paul v. British Columbia Paulette Caveat Powley ruling R. v. Drybones R. v. Gladstone R. v. Gonzales R. v. Guerin R. v. Jim R. v. Pamajewon R. v. Sparrow Re Eskimos St. Catharines Milling and Lumber Co. v. R. R. v. Van der Peet Tsilhqot'in Nation v. British Columbia Daniels v. Canada
International rights & laws	Definitions and identity of indigenous peoples Declaration of Indigenous Peoples Rights United Nations Permanent Forum on Indigenous Issues Indigenous intellectual property
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