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SCC Decision: Bernard and Marshall cases

First Nations Leadership Council says SCC Decision in the Bernard and Marshall cases will not have a large impact in BC

News Release

For Immediate Release

July 20, 2005


Vancouver – The First Nations Leadership Council comprised of the leadership of the three major B.C. First Nation organizations agree that today’s Supreme Court decisions will not affect current political negotiations or court cases dealing with forestry and logging issues in British Columbia.


Grand Chief Edward John, a member of the First Nations Summit Political Executive said after reviewing the decisions:  “Today’s Marshall and Bernard decisions will not affect political or legal issues in British Columbia with respect to commercial logging.  These decisions do not establish new legal principles.  They are based on the facts about the Mi’kmaq people’s relationships to the Crown and to particular portions of their territory in the 1760’s.”


“The Court’s rejection of a Mi’kmaq treaty right to log will not affect First Nations in B.C. because such a treaty right is not asserted in B.C. since the federal and provincial governments refused to negotiate treaties here until very recently.  And in the few exceptions to that, the Douglas Treaties and Treaty 8 have no trade clauses like the one considered in today’s decisions”, added Chief John.


“Aboriginal title is a fundamental and unresolved issue throughout British Columbia.  But today’s Supreme Court decisions will not affect that issue here”, said Chief Stewart Phillip, President of the Union of BC Indian Chiefs.


“The Court merely rejected Mi’kmaq logging rights based on Aboriginal title because the evidence in these cases did not meet the legal standard set in earlier cases.  That will not affect title claims here in BC.  Throughout British Columbia First Nations were traditionally sustained by the whole of their territorial lands and resources, and were prepared to exclude others from those when necessary.  A number of B.C. First Nations are currently conducting or preparing Aboriginal title cases, in part because of logging disputes, and in all those cases the First Nations are confident that they can and will meet the legal standard in today’s decisions” added Chief Phillip.


Shawn Atleo, BC Regional Chief of the Assembly of First Nations said, “More important for First Nations in B.C. is that today’s cases do not change the Supreme Court’s recent decisions in the Haida and Taku River Tlingit cases, which confirmed the Crown’s duty to accommodate Aboriginal title and rights when making resource allocation or management decisions”. 

“Those cases are currently being applied in negotiations throughout B.C. in many forestry situations, because they establish that grants of logging tenures and forestry management decisions must, as a matter of law, protect traditional and non-commercial uses of the forest by First Nations, and also ensure ongoing opportunities for meaningful First Nation participation in commercial uses of the forest.”


Today’s cases will not affect the many types of negotiations currently going on in B.C. between First Nations and government, including treaty negotiations.  Enormous amounts of energy and resources are being invested in those negotiations, in efforts to move away from conflict and litigation and directly towards accommodation and reconciliation agreements.  It is common ground between First Nations organizations and the provincial government that achieving that objective must include meaningful First Nation participation in all aspects of modern commercial forestry, including commercial harvesting and management decisions to ensure sustainability. While there is a great deal left to resolve in all those negotiations, the basic issue in  the Mi’kmaq cases - whether First Nations have a right to participate in commercial logging - is not really in dispute in British Columbia.






The First Nations Leadership Council is comprised of the political executives of the First Nations Summit, Union of BC Indian Chiefs and the BC Assembly of First Nations.  The Council works together to politically represent the interests of First Nations in British Columbia and develop strategies and actions to bring about significant and substantive changes to government policy that will benefit all First Nations in British Columbia.



For Further Information:

Grand Chief Edward John – First Nations Summit


Chief Stewart Phillip – Union of BC Indian Chiefs


Regional Chief Shawn Atleo – BC Assembly of First Nations


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