This appeal was heard before the Supreme Court of Canada, and it followed the decisions in R v Marshall, 2001 NSPC 2, R v Marshall, 2001 CanLII 4996 (NS SC), R v Marshall, 2001 NSSC 157, R v Marshall (SF), 2002 NSSC 57, R v Marshall, 2002 NSSC 233, and R v Marshall, 2003 NSCA 105.
This appeal followed a series of decisions that stemmed from the convictions of several Mi'kmaq who had been charged with cutting and removing timber from Crown lands in Nova Scotia and New Brunswick.
The accuseds had asserted Aboriginal and treaty rights that allowed them to do what they had done, and although their arguments had been rejected at trial, later appellate courts had set aside their convictions.
The main issues that the Supreme Court of Canada was asked to consider in this appeal was whether the Treaty of 1760-61 gave the appellants a treaty right to harvest timber for commercial purposes, and whether the appellants had Aboriginal title that would give them the same right.
Ultimately, the Court concluded that the Treaty of 1760-61 did not give Mi'kmaq a right to harvest timber for commercial purposes, as commercial logging was not a trading activity that the Mi'kmaq had practiced at the time the treaty was made. The Court also held that the appellants had failed to prove Aboriginal title, as it found that the appellants had not shown that Mi'kmaq used the lands in question regularly and exclusively enough to prove title.
For these reasons, the appeal was allowed, and the convictions were restored.