Assembly of First Nations National Chief expresses disappointment about Supreme Court of Canada decisions in Marshall-Bernard cases: Decision is not

25 July 2005

Assembly of First Nations National Chief Phil Fontaine responded today to the Supreme Court of Canada's decision in the Marshall-Bernard cases dealing with First Nations logging rights in Nova
Scotia and New Brunswick.
"This Supreme Court decision is disappointing for First Nations but it is not the final word on Treaty rights and Aboriginal rights and title in Canada, or even in the Atlantic," said National Chief Fontaine. "The decision has local application only and does not set national precedent. The Supreme Court upheld the rulings of the trial judges that Aboriginal title had not been proven in these cases and points out that these judgments are not necessarily the final judicial word. It remains open for First Nations to assert their
title in future cases. The struggle for First Nations to re-build and re- vitalize our economies is moving ahead on many fronts. We will continue to assert our moral, political and legal right to re-build our economies."
In today's decision, the Supreme Court ruled that, based on the specific facts and arguments presented in these particular cases, the Mi'kmaq do not have a treaty right to harvest wood on Crown lands without a permit. The AFN intervened in the case, arguing that the Mi'kmaq have a Treaty right and, in order to give substance to that right, the Mi'kmaq must be able to utilize the renewable resources available to them in traditional times to re-attain modern economic self-sufficiency and create a diversified economy.
"In future litigation, a fuller examination of the historical record will hopefully lead to a full and respectful understanding of the importance our forests have always had to the social, economic and spiritual life of the First Nations of New Brunswick and Nova Scotia," said National Chief Fontaine.
"The issue of Aboriginal rights to use the forests, as opposed to title, was not even raised in these cases, and remains open. We regret that in this case the Court took a narrow approach regarding the Treaty right rather than the more fair and liberal approach that has been applied in the past and set out in this very judgment."
The National Chief noted that Supreme Court will rule tomorrow on whether or not they will grant leave to appeal in the Sappier and Polchies/Gray cases.
These cases deal with the Mi'kmaq and Maliseet Aboriginal right to forestry harvesting for personal use and could impact on today's rulings. Those decisions will be closely watched by First Nations to assess their impact.
"The Supreme Court of Canada has previously recognized in the Haida decision that the claimed rights of First Nations must be accommodated in the interim period while litigation and negotiations proceed," said the National Chief. "The AFN looks forward to the recognition of the forestry rights of the First Nations of New Brunswick and Nova Scotia through political negotiations that address economic development and self government generally."
The National Chief stated that while these negotiations proceed, interim practical arrangements with First Nations should be achieved so that economic and social progress can continue pending final resolution.
"Leaving the legal analysis aside, today's decision is a missed opportunity for all Canadians," said National Chief Fontaine. "A positive decision would have provided the legal impetus for the public and private sectors to work together with First Nations in cooperative approaches such as co-management, resource revenue sharing and any number of mutually beneficial arrangements. However, this decision is not final, and does not preclude partnerships based on fairness and equality. Regardless of court decisions, we believe this is the way we should be proceeding in general. Good faith negotiation is preferable to litigation, but clearly this is not the final word from the courts or First Nations on these fundamental matters."
The Assembly of First Nations is the national organization representing First Nations citizens in Canada.
For further information: Ian McLeod, AFN Bilingual Communications Officer, Cell: (613) 859-4335; Nancy Pine, Communications Advisor, Office of the National Chief, Cell: (613) 298-6382; Don Kelly, AFN Communications Director, (613) 241-6789 ext. 320 or cell (613) 292-2787

Source: NewsWire

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