JOSHUA BERNARD v HER MAJESTY THE QUEEN

COURT OF APPEAL OF NEW BRUNSWICK

Heard September 16, 2002
Judgment August 28, 2003

THE COURT
Leave to appeal is granted. The appeal is allowed, the conviction is set aside and an acquittal is entered. A stay suspending the effect of the judgment for a period of one year from the date of these reasons is granted.

SUMMARY
On April 13, 2000, Joshua Bernard was convicted of unlawful possession of timber taken from Crown lands. Mr. Bernard is of Mi’kmaq descent and a registered status Indian living on the Eel Ground reserve, located on the banks of the Northwest Miramichi River.

The central issue raised on this appeal is whether members of the Miramichi Mi’kmaq community have the right to harvest and sell timber, growing on Crown lands, within the Sevogle area of the Northwest Miramichi watershed. This right is said to flow from two tributaries: the Miramichi Treaty of 1761 and aboriginal title. The Provincial Court Judge rejected both defences. The Summary Conviction Appeal Court Judge could find no basis on which to disturb those findings. Mr. Bernard appeal Read More

JOSHUA BERNARD v HER MAJESTY THE QUEEN

COURT OF APPEAL OF NEW BRUNSWICK

Heard September 16, 2002
Judgment August 28, 2003

THE COURT
Leave to appeal is granted. The appeal is allowed, the conviction is set aside and an acquittal is entered. A stay suspending the effect of the judgment for a period of one year from the date of these reasons is granted.

SUMMARY
On April 13, 2000, Joshua Bernard was convicted of unlawful possession of timber taken from Crown lands. Mr. Bernard is of Mi’kmaq descent and a registered status Indian living on the Eel Ground reserve, located on the banks of the Northwest Miramichi River.

The central issue raised on this appeal is whether members of the Miramichi Mi’kmaq community have the right to harvest and sell timber, growing on Crown lands, within the Sevogle area of the Northwest Miramichi watershed. This right is said to flow from two tributaries: the Miramichi Treaty of 1761 and aboriginal title. The Provincial Court Judge rejected both defences. The Summary Conviction Appeal Court Judge could find no basis on which to disturb those findings. Mr. Bernard appealed to the Court of Appeal.

Justices Daigle and Robertson hold that Mr. Bernard possesses a treaty right to harvest and sell trees growing on Crown lands traditionally occupied by the Miramichi Mi’kmaq. In their opinion, the treaty right is not restricted to natural resources that were traditionally traded at the time the 1761 treaty was signed, as found by the trial judge. Justices Daigle and Robertson are also of the view that the treaty right was not extinguished by pre-confederation provincial legislation and that the present legislation constitutes an unjustified infringement of the appellant’s treaty right. Justice Deschênes is of the contrary view. He holds that there is no basis on which to interfere with the trial judge’s finding that there is no treaty right to trade in logs taken from Crown lands. More particularly, he holds that the type of commercial activity being carried on by Mr. Bernard was not protected by the treaty, nor was such activity contemplated by the signatories nor did it constitute a logical evolution of the treaty right. Accordingly, Justice Deschênes found it unnecessary to address the issues of extinguishment, infringement and justification.

With respect to the defence of aboriginal title, all three justices agree that neither Belcher’s Proclamation of 1762 nor the Royal Proclamation of 1763 can be regarded as an independent source of aboriginal title. With respect to the claim of aboriginal title, based on exclusive occupation, Justices Daigle and Robertson hold that the trial judge did not apply the correct legal principles. Justice Daigle concludes that the evidence supports a finding that the Miramichi Mi’kmaq had exclusive occupation of the "Northwest Miramichi watershed" at the time of sovereignty. Justice Daigle also concludes their aboriginal title was not extinguished; that it was infringed and that the Crown failed to justify the infringement. Justice Robertson, however, refrains from answering the question whether the evidence is sufficient to support a finding of aboriginal title to the lands in question. In his view, it is unnecessary to address that issue given his finding with respect to the treaty defence and because of other enumerated concerns over the validity of deciding aboriginal title cases within the context of summary conviction proceedings. Justice Deschênes is of the view that the trial judge’s decision on the question of aboriginal title is owed deference pursuant to the provisions of the Criminal Code. He is also of the view that there is no basis on which the Court of Appeal is entitled to interfere with the trial judge’s findings of fact on the issue of exclusive occupancy; findings that were upheld by the summary conviction appeal judge.

In summary, the majority of the Court of Appeal allowed the appeal and set aside the conviction on the basis that the accused had established a treaty right that had not been extinguished, but which had been infringed without justification on the part of the Crown. In addition, the Court stayed the effect of their judgment for a period of one year from the date of the decision. DAIGLE, J.A.

http://www.apcfnc.ca/court.asp?ID=121&type=Archived


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Learning Objectives

Learners will understand the circumstances surrounding the New Brunswick Court of Appeal case concerning Joshua Bernard.

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