R. v. Sappier; R. v. Pochies; R. v. Gray

The Respondents were charged under Provincial (NB and NS) Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested the logs taken were to be used for the construction of a house, for community firewood and fashion furniture by the Respondents' respective First Nations. They had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. They were acquitted at trial. The S.C.C. held (unanimously) the Respondents made out a defence of aboriginal right.

Due to the similar nature of the Sappier and Polchies and Gray cases, the Supreme Court of Canada heard the cases together and issued a joint decision.  The Supreme Court dismissed the appeals and upheld the acquittals entered by the lower courts for all three respondents. Furthermore, the Court concluded that the Mi'kmaq and Maliseet's pre-contact practices of harvesting and using wood have evolved into a present-day, site-specific communal right to harvest timber for the construction of a modern dwelling.  In other words, the Court found that the respondents had an Aboriginal right to harvest wood for domestic uses on Crown Land that falls within the Aboriginal community's traditional territory.  Domestic uses of wood include shelter, transportation, tools, and fuel.  There is no commercial dimension to this right, so it does not include the sale, trade or barter of timber to produce assets or raise money, even if intended to help finance the construction of a modern dwelling.