“The Core of the Culture”: Sappier + Gray case

R v Sappier; R v Gray

Year: 2006

Court: Supreme Court of Canada

Citation: 2006 SCC 54

Location: NS

TAGS: Constitutional; Harvesting Rights

Aboriginal rights protected under s.35 of the Constitution Act, 1982 include methods of traditional sustenance and are not limited to activities that are a “core of the culture.”


R v Sappier; R v Gray is a consolidated criminal case where Mi’kmaq and Maliseet people were charged with unlawful possession of or cutting of timber from Crown lands under the New Brunswick Crown Lands and Forests Act. The Crown lands that the wood was taken from were lands where lumber was traditionally harvested by the Mi’kmaq and Maliseet First Nations. The wood taken was not for commercial sale, but for personal and community use. The respondents maintained that there was an aboriginal right to harvest the wood, protected by section 35(1) of the Constitution Act, 1982, and that their activities were not unlawful.

The Supreme Court of Canada (SCC) held that the respondents established the aboriginal right and acquitted them of the charges. The right was characterized as a communal right to “harvest wood for domestic uses as a member of the aboriginal community for personal use.” The SCC held that it was a site-specific right, limited to Crown lands that would have traditionally been harvested by the First Nations. It was accepted in this case that showing the importance of a resource to an aboriginal community prior to contact is enough to establish an Aboriginal right, absent direct evidence.

Why this Case Matters:

This case re-articulates the Van der Peet test, broadening the scope to include an “inquiry into the pre-contact way of life” including means of survival, socialization, and potentially, trading habits. This decision expands the “integral to a distinctive culture” approach that had been applied prior to allow for Aboriginal rights to be affirmed and protected in a more flexible manner.

Supreme Court Judgment:

CanLII – R. v. Sappier; R. v. Gray, 2006 SCC 54 (CanLII), [2006] 2 SCR 686

Go Deeper:

Ratcliff & Company, F. Matthew Kirchner – Achieving Cultural Security and Continuity. R. v. Sappier and the Refined Van der Peet Test


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