R v Marshall; R v Bernard
| R v Marshall; R v Bernard | |
|---|---|
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| Hearing: January 17, 18, 2005 Judgment: July 20, 2005 | |
| Full case name | Her Majesty The Queen v Joshua Bernard, et al. and Her Majesty The Queen v Stephen Frederick Marshall, et al. |
| Citations | 2005 SCC 43, [2005] 2 S.C.R. 220 |
| Ruling | The appeals allowed and the convictions restored. Marshall cross‑appeal is dismissed. |
| Court Membership | |
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Chief Justice: Beverley McLachlin Puisne Justices: Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron | |
| Reasons given | |
| Majority | McLachlin C.J. |
| Concurrence | LeBel J. |
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 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 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
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