Treaty Rights

In the Maritimes, early French and English governments would enter into treaties of peace and friendship with the Indian nations they encountered upon arrival. Treaties are an exchange of promises. These treaties typically recognized the Indian’s right to hunt and fish (among other activities) in return for peace. They did not involve the surrender by Indians of their lands. The bargain rather involved a concession from the Indians to cease hostilities. In Ontario and the prairie provinces between 1871 and 1921, a series of treaties were entered into that did cede Indian lands to the Crown. However, the peace and friendship treaties of the Maritimes were never replaced by treaties that ceded land.(footnote #8)

The courts have established a principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions should be resolved in favour of the Indians. This is in keeping with the fiduciary relationship or trust that the government has always had with Indians.(footnote #9)  For example, treaties permitted Indians to sell land only through the government in order to protect them from unscrupulous settlers. It may seem that time and politics have caused the government to forget its treaty promises and fiduciary relationship. However unless extinguished, aboriginal treaty rights continue to exist.

Justice Arsenault, the first to render a decision in the bird’s-eye maple case, found that harvesting trees is a treaty right found in Dummers Treaty of 1725 and other promises made between 1725 and 1726, known collectively as the Boston Treaty. The 1725 promise was that " Indians shall not be Molested in their Persons Hunting Fishing & Shooting & Planting on their Planting Ground nor in other their Lawful Occasions..." Justice Arsenault interpreted lawful occasions to include activities such as cutting trees and relied on a subsequent Treaty of 1952 to find that it would have been normal for trade and commerce of harvested trees to take place.(footnote #10)   He found no evidence that the Treaties had been extinguished and so exempted Mr. Paul from the current licensing requirements of the Crown Lands and Forests Act.

The Court of Appeal held that there was insufficient evidence presented to establish an aboriginal right to harvest and sell timber.(footnote #11)  Evidence that Indians traditionally harvested trees in order to make and trade baskets, canoes or logs for ship masts and other construction purposes introduced through oral stories of aboriginal elders or writings of historians might have convinced the court otherwise.