Canada's top court unanimously found that the Mi'kmaq have a right to harvest and sell only "items traditionally traded in 1760-1761," when they signed peace treaties with the British government.
The decision is a devastating blow to Mi'kmaq aspirations for a piece of the province's forestry industry.
The Mi'kmaq had argued that the 1999 Marshall ruling should be interpreted to include the right to harvest wood.
The top court ruled then that Donald Marshall Jr. had the treaty right to earn a "moderate livelihood" by catching and selling eels, a decision that has been interpreted to include the right to gather and sell other fish species, such as lobster and crab.
On Wednesday, the court defined the scope of that treaty right, finding that it only applies to items the Mi'kmaq gathered and traded in the 1760s, such as fish, furs and berries.
Back then, the Mi'kmaq traded in wood products like snowshoes, baskets and canoes but they didn't sell trees, the court found.
"Logging was not a traditional Mi'kmaq activity," Chief Justice Beverley McLachlin wrote. "Rather it was a European activity, in which the Mi'kmaq began to participate only decades after the treaties of 1760-61. If anything, the evidence suggests that logging was inimical to the Mi'kmaq's traditional way of life, interfering with fishing which, as found in Marshall 1, was a traditional activity."
The court found that provincial court Judge Patrick Curran was right in 2001 when he convicted Stephen Marshall Jr. and 34 other Nova Scotia Mi'kmaq loggers of violating provincial law by cutting on Crown land in 1998 and 1999.
Canadians of European descent, in the main, don't live as their ancestors did 250 years ago. Do these Indian treaties, with their generous grants of rights to hunt and fish on public year-round, make sense in a time when very few people, even Indians, live solely by subsistence hunting and fishing?
Source: Halifax Chronicle-Herald