The Telegram (St. John's)


Tara Mullowney

Mi'kmaq loses another legal battle; Appeal Court rules group doesn't have special rights

The Newfoundland and Labrador Court of Appeal has upheld a lower court decision that the Mi'kmaq of Conne River do not have special rights to fish, hunt and trap in a protected wilderness area.

The court also dismissed a cross-appeal by Corner Brook Pulp and Paper Ltd., which had become involved in the case as an intervener, who argued that any aboriginal rights were extinguished by legislation before Newfoundland joined Canada in 1949.

Newfoundland Supreme Court Justice Leo Barry ruled in 2003 - following nearly three years before the court, 47 days of testimony, 150,000 pages of historical material and information translated from French, Basque, Portuguese and Dutch - the Mi'kmaq of Conne River did not have special rights in the Bay du Nord Wilderness Reserve, located to the north and east of Conne River.

In 1996, the province began a court action to force some Mi'kmaq cabin owners to remove their cabins from the area. The defendants argued the Bay du Nord area was a traditional hunting, fishing, and trapping area, and the cabins were necessary. They also claimed they were protected by aboriginal and treaty rights.

The province disagreed, claiming everyone living on the island of Newfoundland - whether of aboriginal or European ancestry - migrated here from somewhere else.

In making his decision, Barry ruled the defendants did not prove their ancestors arrived before the Europeans. He said even if the Mi'kmaq were on the island before the Europeans, there was no conclusive proof they used the Bay du Nord area as a traditional hunting and fishing ground.

He ruled the Mi'kmaq cabin owners in question were "wrongfully in possession of Crown lands," and ordered the cabins be removed from the area.

The cabin owners appealed the decision on 21 grounds, based on aboriginal and treaty rights.

Appeal Court Justices Margaret Cameron, Dennis Roberts and Keith Mercer upheld Barry's decision.

"The appellants have not established that the trial judge committed any palpable overriding factual error or error of law in respect of these issues, and their appeal in respect thereof must fail," Cameron wrote.

In its cross-appeal, Corner Brook Pulp and Paper (CBPP) argued that its rights under the pre-Confederation legislation were inconsistent with any aboriginal rights to forest resources. During the original trial, Abitibi-Consolidated was also an intervener. However, it was not involved in the cross-appeal.

At trial, Cameron said, the cabin owners restricted their claim to hunting, fishing and trapping, without making reference to logging or cutting rights. In the cross-appeal, they said they were not claiming any timber rights, except as necessarily incidental to their hunting, fishing and trapping.

"In our opinion, therefore, the legislation underpinning CBPP's rights can scarcely be said to be incompatible with the asserted aboriginal right to hunt, fish, and trap," Cameron wrote. "Counsel for the CBPP acknowledges that position. It follows that the cross-appeal must be dismissed."