From: David Ljunggren, Reuters
Published July 21, 2005 12:00 AM

Canada Court Deals Blow to Natives Seeking Rights

OTTAWA — Canada's Supreme Court dealt two major blows Wednesday to native Indian groups who are seeking more control over large tracts of land and resources as a way of escaping grinding poverty.

The court banned aboriginal bands from logging trees commercially on government land without permission and also laid down tough criteria for natives trying to prove that, as the original inhabitants of Canada, they should be given more rights for economic exploitation.

The court ruled unanimously against two native Indian men who had argued that treaties their ancestors signed with Canada's former colonial ruler, Britain, in 1760 and 1761 give them the right to cut logs without a permit.

The court's decision will undoubtedly please Canada's C$27 billion ($22 billion) forestry industry, which feared a Court decision in favor of the two men could have harmed its operations by increasing competition for timber.

But it will do nothing to ease the generally fractious relations between various levels of government in Canada and the country's one million aboriginals, many of whom live in squalor on reserves and blame their plight on what they call systemic discrimination by authorities.


"It's a setback. Historically we win some and we lose some," said Dwight Dorey, national chief of the Congress of Aboriginal Peoples.

The two men, both appealing prosecutions in separate cases for cutting wood illegally, said the treaties of 1760 and 1761 between Britain and Mi'kmaq Indian bands in eastern Canada allowed aboriginals to make a living from forests.

The men said logging represented modern use of the same materials -- an argument all seven judges rejected.

"The commercial logging that formed the basis of the charges against the respondents was not the logical evolution of traditional Mi'kmaq trading activity protected by the treaties of 1760 and 1761," the court said in its ruling.

The court also rejected the two men's argument that as the original occupiers, the aboriginals had title over -- in effect owned -- the land and could do what they wanted with the resources.

From now on, the judges ruled, aboriginal bands must show that their ancestors had effectively controlled lands in question and also used the resources they were now seeking to exploit.

The court asked "whether nomadic and semi-nomadic peoples can ever claim title to aboriginal land". It made clear that "continuity is required, in the sense of showing the group's descent from the (original) group whose practices are relied on for the right".

This ruling could have repercussions in western British Columbia, where the question of who owns the rights to natural resources is a sticking point in the slow-moving land treaty negotiations between the government and native Indian bands.

The court's demand that bands show their planned use for land and resources is directly linked to the activities of their ancestors would on paper make it easier to reject demands for access to oil and gas reserves.

Federal government lawyer Mitch Taylor said Ottawa's negotiators in British Columbia would adopt a "fair and balanced" approach to the talks in the wake of the ruling.

But British Columbia native leaders said they were not worried about the ruling because most Pacific Coast bands lack treaties, and those that are in place lack trade clauses similar to the agreements that were before the court.

"These decisions do not establish new legal principles, said Grand Chief Edward John of the First Nations Summit.

Source: Reuters

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