R. v. Paul, 2013 NSPC 75

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Paul, 2013 NSPC 75 Date: 20130904 Docket: 1715632, 1715635 Registry: Sydney Her Majesty the Queen - versus - Aaron Paul and Charles Francis DECISION HEARD BEFORE: The Honorable Judge David Ryan, JPC PLACE HEARD: Sydney, Nova Scotia DATES HEARD: August 28, 2008; May 25, 2009; July 20, 22, 23, 24, 2009; November 5, 2009; December 2, 3, 4, 2009; February 3, 4, 2010; June 25, 2010 CHARGE:

Section 68 of the Wildlife Act , R.S.N.S. 1989, c. 504 COUNSEL: James E. Clarke, Counsel for the Crown Darcy L. MacPherson, Counsel for the Crown Douglas Brown, Counsel for the accused TABLE OF CONTENTS

Facts .............................................................................................. 1 Aboriginal Right Analysis .......................................................... 5 Preliminary Defence Motion .............................................. 5 Have the Morris (2006) and Polches Decisions determined the outcome of the Case-at-bar?......................................................................... 13

Summary of the Evidence ........................................................... 18 Dr.

William Wicken .......................................................... 20 First Contact with Europeans ................................... 22 The Colonization Overview ..................................... 23 Native (Mi ’ kmaq) Population in CB ........................ 24 Mi ’ kmaq Hunting ..................................................... 26 Night Hunting ........................................................... 28 The Post 1758-60 Period .......................................... 31 The Legislative Regime ............................................ 32 Dr.

Alexander von Gernet ............................................... 42 Time of First Contact ................................................ 46 Oral Histories & Oral Traditions .............................. 48 Archaeological Evidence .......................................... 50 Written Documents ................................................... 51 Nocturnal Hunting .................................................... 62 Dr.

Stephen Patterson ....................................................... 67 Department of Natural Resources Witnesses Anthony Nette ......................................................... 95 John Mombourquette .............................................. 100 Daniel Eidt .............................................................. 110

Andrew Hanam ....................................................... 112 Byron Scott Fraser .................................................. 113 Keith Allen Timmons ............................................. 115 Bernie Syliboy ........................................................ 117 Gary Lowe .............................................................. 122 Benedict Toney ...................................................... 128 Legal Analysis ............................................................................ 136 Aboriginal Rights & Treaty Rights .................................. 139 Undertaking a s.35(1) Aboriginal Rights Analysis........... 143 Defining the Scope and Content of an Aboriginal Right .. 144 Test for Identifying the Scope of the Aboriginal Rights .. 158 Infringement Analysis ............................................................... 165 Is the limitation on the Aboriginal Right reasonable ........ 165 Does the Regulation impose undue hardship .................... 169 Does the legislation deny a preferred means of exercising the aboriginal right ............................................................ 170 Conclusion ......................................................................... 174 Conclusion ................................................................................... 181 By the Court: FACTS [ 1 ] The accused, Aaron Paul and Charles Francis, are registered status Mi'kmaq Indians.

They were charged that on September 25, 2006, they contravened s. 68 of the Wildlife Act , R.S.N.S. 1989, c. 504 which states: Hunting with light

68. Except as provided in this Act or the regulations, every person is guilty of an offence who takes, hunts or kills or pursues with intent to take, hunt or kill wildlife by means of, or with the assistance of, a light or flambeau. [ 2 ] It has not been argued nor have I found anything in the legislation or the regulations that would exempt Mr. Paul or Mr. Francis from its provisions. [ 3 ] The accused were arrested at or near Cheticamp Lake, Victoria County, Nova Scotia. At the time, the accused were residents of the aboriginal community of Eskasoni, Nova Scotia. [ 4 ] Mr. Paul and Mr.

Francis testified that on the 5th of September, 2006, they engaged in night hunting for food (moose) at or near Cheticamp Lake in the Cape Breton Highlands, Victoria County, Nova Scotia, arriving there at approximately 7:30 p.m. that day. They unloaded their truck, made a fire and then went to canvass ("went for a cruise") the area looking for moose. Having no spotlight, they used the headlights of their truck being driven by Mr. Paul. If there was an open area they would sweep it with the headlights "to see if I [Aaron Stephen Paul] can see eyes" (Transcript, August 28, 2008, at pp. 5-6).

They had with them walkie-talkies, flashlights and two high powered rifles. Mr. Paul and Mr. Francis both indicated they were familiar with the area, Mr. Francis saying he had hunted there for 15 years, more or less, and Mr. Paul since 2004. After driving around, they pulled into a gravel pit and Mr. Paul thought he saw something, but not being sure what it was, they kept going. Shortly thereafter they returned to the gravel pit where he "seen the eyes" (Transcript, August 28, 2008, at p. 14). Mr. Francis got out of the truck and about three or four seconds later took a shot at what he thought was a moose.

In fact, it was a decoy mechanical "moose" set up by officers of the Department of Natural Resources. Those officers immediately proceeded to converge on the two young men with lights flashing, sirens blaring and with guns drawn. The Natural Resources officers had hidden themselves behind piles of gravel. The two young men were immediately arrested. Their rifles were seized - identical 300 Winchester Magnum rifles with tripods. [ 5 ] As noted in paragraph one above, both Mr. Paul and Mr. Francis were subsequently charged under s.68 of the Wildlife Act .

They entered pleas of "not guilty" to the charge on February 26, 2007. [ 6 ] In the Agreed Statement of Facts filed before this Court there was an acknowledgement that, on the date of the offence, Mr. Paul and Mr. Francis: - were Mi'kmaq Indians - were members of the Eskasoni First Nation - at the time and place of the event, were hunting moose with the assistance of the "high" beams of a truck - and that Mr. Francis "shot" the decoy thinking it was a real moose. [ 7 ] Against this brief background of the facts, I will deal with the position put forth by the accused that they were exempt from the operation of

Section 68 of the Wildlife Act on the basis that they were acting in accordance with their Aboriginal right to hunt for food and ceremonial purposes protected under s. 35(1) of the Constitution Act , 1982. [ 8 ] Given the time that has elapsed since the date of the alleged offence, some explanation is in order. The charges first appeared in Provincial Court in Baddeck, Nova Scotia, on December 4, 2006. Mr. Paul and Mr.

Francis required time to consult with legal counsel as a result of which several adjournments occurred until pleas of "not guilty" were entered on February 26, 2007 with a trial date of October 15, 2007 being set to deal with the actus reus of the offence. In the interim, negotiations took place between the Crown and Defence. As a result, there was filed an Agreed Statement of Facts, a list of agreed-upon exhibits, and a

Schedule "A" containing an agreement between the parties as to how the Aboriginal rights trial would be procedurally conducted. This was filed on November 26, 2007 (Exhibit No. 5). Trial dates then had to be coordinated with the preparation of expert reports, firstly by Dr. Wicken and subsequently by Dr. Patterson and Dr. von Gernet in response to Dr. Wicken's report and testimony. In addition, both Crown and Defence Counsel had to coordinate their schedules as they, too, had other files and court commitments and obligations. Finally, this Court also had to find time in its

schedule with open days to hear the matters given that this Court normally sits at least four days per

week with a lead time of from nine to twelve months in setting trial dates. Also, counsel had made this Court aware that a decision of the New Brunswick Court of Appeal R. v. Polches , 2008 NBCA 1 ) might have some bearing on this case. The then-pending Polches decision ( rendered on June 8, 2008) was a factor in setting trial dates. [ 9 ] Trial dates subsequently were set to begin on May 20, 2009 with interim dates taken up with a pre-trial application by the Defence to summarily dismiss the matter (August 28, 2008).

That Application was ultimately dismissed on May 20, 2009 following which trial dates commenced and final summation dates were scheduled up to and including June 25, 2010. The Court received the final transcript of all the proceedings in the latter part of September 2010 following which this Decision was prepared while this Court still carried on a full case load.

ABORIGINAL RIGHT ANALYSIS Preliminary Defence Motion Defence Application dated June 15, 2008 for Ruling on Admissibility of Expert Evidence and for An Early Dispensation of the Case. [ 10 ] The two accused Charles Ryan Francis and Aaron Stephen Paul made an Application to the Court, prior to any evidence being heard, seeking to have the Informations quashed or, in the alternative, dismissed; or that a directed verdict of acquittal be entered on the record. [ 11 ] Viva voce evidence and written submissions were received by the Court on the Application after which I reserved my decision to a later date.

On August 28, 2008, both accused testified in furtherance of the Application for early dismissal. The applicants' request was denied by decision rendered on 20 May 2009 with the Court indicating it would fully canvass its reasons for doing so and incorporate those reasons within its final decision in adjudicating this matter. [ 12 ] In seeking an early dismissal of the case, the Applicants' argued that the Crown had not made full disclosure and that the Supreme Court of Canada decisions in R. v. Morris , 2006 SCC 59 , [2006] 2 S.C.R. 915 [ Morris (2006) ] and R. v.

Polches , 2008 NBCA 1 , 325 N.B.R. (2d) 262 [ Polches ] made the use of expert evidence in the case-at-bar irrelevant and unnecessary. The issues of full disclosure and the relevance of expert evidence overlap and will be treated together in the reasons that follow, for "the relevance of evidence is tested by reference to what is in issue": Lax Kw'alaams Indian Band v.

Canada , 2011 SCC 56 at para. 41 , [2011] 3 S.C.R. 535 . [ 13 ] Given that a joint Agreed Statement of Facts was filed with this Court by experienced counsel on both sides and in advance of the Application and trial proper, this Court properly can infer that the Crown provided the defence with full disclosure of the events surrounding the actus reus of the alleged offence.

I am satisfied that at that point in the case the Crown had fulfilled its obligation to supply complete and timely disclosure of its case as to the substantive charge against the accused under s. 68 of the Wildlife Act . [ 14 ] The main emphasis of the Defence argument regarding disclosure or the lack thereof centered around the evidence to be presented by the Crown's expert witnesses. However, the Crown's anticipated expert witnesses — Dr. Stephen Patterson and Dr.

Alexander von Gernet — would be giving evidence as to Mi'kmaq hunting practices in response to the position of the applicants that they were, on the night in question, relying on their s.35(1) Aboriginal right to hunt for food or ceremonial purposes.

Such a general defence to the substantive charges could only be advanced by the applicant-accused upon the Crown proving the charge beyond a reasonable doubt or (as here) upon the Defence admitting to the actus reus . [ 15 ] The Applicants, in their written submissions, argued that in order for their Application to succeed, this Court needed to make the following four findings:

a) That the accused are Aboriginal rights holders.

b) That the activity the Applicants were engaged in at the time of the arrest was an exercise of their Aboriginal right to hunt for food.

c) That the application of s. 68 of the Wildlife Act (N.S.) constituted a prima facie infringement of the aboriginal right to hunt for foodbecause:

I) night hunting with a light is a preferred method of Mi'kmaq food hunting. ii)

Section 68 of the Nova Scotia Wildlife Act is an unreasonable limitation of the Aboriginal right to hunt for food. iii) the application of

Section 68 causes undue hardship to the rights holders.

d) That the law enunciated in R. v. Morris, 2006 SCC 59 , [2006] 2 S.C.R. 915, [2006] S.C.J. No. 59 and R. v. Polches, 2008NBCA 1 , [2008] N.B.J.

No. 4 applies to the Applicants in the case-at-bar. [16] The Applicants submitted that the general issue being addressed by the proposed expert evidence, namely whether a lawprohibiting hunting with a light is applicable to Aboriginal food-hunters, was the very issue precisely and finally decided upon by theSupreme Court of Canada in Morris (2006) and subsequently followed by the New Brunswick Court of Appeal in Polches. [17] It was argued that this Court was bound by the decisions of the Supreme Court of Canada in Morris (2006) and Polches, bothof which the Defence submitted stood for the proposition that the prohibition on hunting with a light was an infringement of the existings.35(1) Aboriginal right to hunt for food.

Such a prosecution, it was argued, was, in the circumstances, inconsistent with the honour ofthe Crown, vis-a-vis Aboriginal people and Aboriginal rights. [18] The Defence and the Crown, already aware of the position—as set out in paragraph 15 above—to be advanced by the twoyoung men, attached as an Appendix "A" to the Agreement Statement of Facts procedural steps to be followed in conducting the trial andadjudicating an Aboriginal rights claim.

Here, the defence raised is the Aboriginal right to hunt for food and the accused argued that themethod employed, i.e., with a light or flambeau, constituted a legitimate exercise of that Aboriginal right. [19] The agreed-upon proposed procedural steps really were recognition of the directions of the Supreme Court of Canada in R. v.Sparrow, (SCC), [1990] 1 S.C.R. 1075, [1990] S.C.J.

No. 49 [Sparrow cited to SCR] as to how such a trial was to becarried out when an Aboriginal right was in issue. [20] The Crown took no issue with the proposition that the Mi'kmaq people had an Aboriginal right to hunt for food or ceremonialpurposes. The Crown did take issue and disagree that the Mi'kmaq enjoyed an Aboriginal right to hunt at night for food with aflambeau/light in the Cape Breton Highlands. The Crown alleged that such means of hunting had no historical basis and was not apreferred means of hunting by Nova Scotia Mi'kmaq.

The Crown further asserted that s.68 of the Wildlife Act was a reasonablelimitation upon the modern exercise of the right to hunt for food and did not impose any undue hardship on Native hunters. [21] Disclosure of the evidence to be presented by the Crown was to a great extent (if not wholly) dependent upon the evidence putforth by the Defence in establishing how the agreed upon Aboriginal right to hunt was legitimately exercised and upon what basis. Theexpert report of Dr. William Wicken, upon which the Defence relied, was prepared and supplemented by the viva voice evidence of theexpert himself.

Only after receiving the report and hearing Dr. Wicken's evidence could the Crown reply and then its experts (Dr.Stephen Patterson and Dr. Alexander von Gernet) get prepared. I believe it is fair to say that both Crown and Defence had in advance avery good idea of the evidence that would be presented by each expert as it was my understanding that all three experts had previouslytestified in similar cases in Nova Scotia and New Brunswick. [22] Evidence heard on the Application and at trial was crucial to the Court's .35 (1) analysis in keeping with the directions of theSupreme Court of Canada in Sparrow.

This Court has received very emphatic direction in regard to a s.35 (1) analysis, not just as to theproper procedure but as to the reasons why such an analysis should be carried out. The majority in Sparrow (at para. 66) prefaced theirremarks by setting out the appropriate analysis to be carried out under s.35 (1) of the Constitution Act , 1982:

66. ...We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of theconstitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatorystandard must be defined in the specific factual context of each case. [Emphasis added] [23] The Supreme Court of Canada re-emphasized the importance of the factual context of each Aboriginal rights case in R. v.Gladstone, (SCC), [1996] 2 S.C.R. 723 at para. 65, [1996] S.C.J. No. 79 [Gladstone cited to SCR] where the Courtstated: 65...

As was emphasized in this Court's decision in Van der Peet, aboriginal rights are highly fact specific—the existence of anaboriginal right is determined through consideration of the particular distinctive culture, and hence of the specific practices, customs andtraditions, of the aboriginal group claiming the right. ... [Emphasis added] [24] Context is of paramount importance in cases involving the exercise of Aboriginal rights. See also R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507 at para. 69, [1996] S.C.J.

No. 77 [Van der Peet cited to SCR] where Chief Justice Lamer for the7:2 majority wrote: Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of theparticular aboriginal group claiming the right. ...[T]he existence of an aboriginal right will depend entirely on the practices, customs andtraditions of the particular aboriginal community claiming the right.

As has already been suggested, aboriginal rights are constitutionalrights, but that does not negate the central fact that the interests aboriginal rights are intended to protect relate to the specific history ofthe group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on acase-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, withoutsomething more, sufficient to demonstrate that another aboriginal community has the same aboriginal right.

The existence of the rightwill be specific to each aboriginal community. [Emphasis added] [25] That direction from the Supreme Court of Canada cannot be ignored by this Court and I am unable to find any contrarydirection in the more recent Morris (2006) decision of the Supreme Court of Canada. It was incumbent upon this Court to hear expertevidence that would inform and be the basis of its analysis of the Aboriginal rights question now in issue—is hunting with a light alegitimate exercise of the Aboriginal right to hunt for food?

Have the Morris (2006) and Polches Decisions Determined the Outcome of the Case-at-Bar? [26] The Morris (2006) decision involved a claim of a treaty right being infringed by virtue of the provisions of s.27 of the WildlifeAct of British Columbia which prohibited hunting during certain hours and hunting with the use or aid of illuminating devices. TheNorth Saanich Treaty in question recognized the right of the Tsartlip people "to hunt over the unoccupied lands....as formerly".

The trialjudge made a finding— after hearing the evidence —that the Tsartlip did indeed enjoy a right to hunt at night "as formerly" meaningthey could do so at night with illuminating devices as they had done at the time of and prior to the treaty coming into effect in 1852. Thiswas specifically referred to by the Supreme Court of Canada in Morris (2006) (at para. 26) where the Court stated that the trial judge's"most significant finding" of evidence was the fact that the Tsartlip had hunted at night with the aid of illuminating devices.

The trialcourt found the accused Morris (and Olsen) guilty of hunting during prohibited hours and conditionally stayed the charge of hunting withthe aid of illuminating devices. That decision was upheld by the Court of Appeal in British Columbia but eventually overturned by theSupreme Court of Canada primarily because "based on an understanding of the common intention of the parties to the Treaty, theTsartlip's treaty right includes the right to hunt at night with illumination" (at para. 57). The Supreme Court of Canada enlarged upon itsanalysis in Morris (2006) as follows (at paras. 58-60): 58.

The legislative prohibition set out in s. 27(1)(

d) and (

e) of the Wildlife Act is absolute, and it applies without exception to the wholeprovince, including the most northern regions where hours of daylight are limited in the winter months and populated areas are few andfar between. The Legislature has made no attempt to prohibit only those specific aspects or geographic areas of night hunting that areunsafe by, for example, banning hunting within a specified distance from a highway or from residences.

The impugned provisions areoverbroad, inconsistent with the common intention of the parties to the treaties, and completely eliminate a chosen method of exercisingtheir treaty right. 59. We respectfully disagree with our colleagues the Chief Justice and Fish J. that nothing short of a total ban on night hunting canaddress safety concerns. We believe that it would be possible to identify uninhabited areas where hunting at night would not jeopardize

safety. This finding is supported by the evidence in this case that the Tsartlip's practice of night hunting with illuminating devices has never been known to have resulted in an accident, and that the conservation officers, in setting up the location for their mechanical decoy, were easily able to locate an area where night hunting could be practised safely. These facts amply demonstrate how something less than an absolute prohibition on night hunting can address the concern for safety. 60.

We have no difficulty concluding, therefore, that the categorical ban on night hunting and hunting with illumination constitutes a prima facie infringement of a treaty right . A categorical prohibition clearly constitutes more than an insignificant interference with a treaty right. Although provincial laws of general application that are inapplicable to aboriginal people can be incorporated into federal law under s. 88 of the Indian Act , this cannot happen where the effect would be to infringe treaty rights . Because paras. (

d) and (

e) of s. 27(1) of the Wildlife Act constitute a prima facie infringement, they cannot be incorporated under s. 88 of the Indian Act . [Emphasis added.] [ 27 ] Clearly, the Supreme Court of Canada in Morris (2006) used the North Saanich Treaty as the context for its legal analysis and reasons for decision. The defendants in the case-at-bar did not advance a treaty right to hunt with a light. [ 28 ] As I indicated above, unlike the case before me which involves determining the scope and content of an Aboriginal right, the Morris (2006) case deals specifically with a treaty right.

The Morris (2006) decision supports the proposition that provincial laws of general application that do not constitute a prima facie infringement of a treaty right can and do apply to Aboriginals and non-Aboriginals alike. However, when those provincial laws of general application constitute a prima facie infringement of an Aboriginal treaty right, the treaty prevails by virtue of s. 88 of the Indian Act , R.S.C. 1985, c. I-5. [ 29 ]

Section 88 of the Indian Act states: 88.

Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act , or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those laws make provision for any matter for which provision is made by or under those Acts. [Emphasis mine.] [ 30 ] The Morris (2006) decision is a commentary upon the interaction between s. 88 of the Indian Act and an established prima facie infringement of an Aboriginal treaty right by provincial laws of general application.

In such a circumstance, the province cannot rely on s.88 - end of matter! By operation of s. 88 of the Indian Act , treaty rights will trump provincial laws when those laws encroach on exclusive federal jurisdiction for Indians and Lands reserved for the Indians under s. 91(24) of the Constitution Act , 1867, and such an encroachment is found to be a prima facie infringement of the treaty right in question. [ 31 ] Morris (2006) speaks to a treaty right infringement as opposed to a potential Aboriginal rights infringement.

The determination of the latter issue is governed by the decision of the Supreme Court of Canada in Sparrow regarding context and a case-by-base approach. (See also the Supreme Court of Canada decision in Van der Peet , at para. 69 , referred to herein at paragraph 24.) While I can rely on the reasoning in related case law, there must be an evidentiary basis before me for claims particular to the case-at-bar, such as the defence contention that night hunting with a light or flambeau historically was a preferred method of Mi'kmaq food hunting.

Historical evidence was — and is — therefore, not only relevant but necessary if this Court is to carry out a proper analysis in rendering its decision in the case-at-bar. [ 32 ] The decisions of the Supreme Court of Canada in Morris (2006) and of the New Brunswick Court of Appeal in Polches , were, therefore, not determinative of the Aboriginal right's issue before this Court. The request for

summary dismissal of the Crown case was denied.

Summary of the Evidence [ 33 ] The Court heard from 14 witnesses — three for the defence, including the two accused, and 11 for the Crown — over the course of 23 days spread over an almost two year period. The Court also heard oral arguments from counsel and read their written submissions.

Included in the evidence before this Court was expert opinion evidence provided by three eminent scholars (one for the Defence, two for the Crown) together with their expert reports and extensive historical writings attached thereto.

In keeping with the direction from the Supreme Court of Canada in Sparrow , Gladstone and Van der Peet concerning the importance of context and a case-by-case approach when determining the content and scope of an Aboriginal right, I will review the evidence provided by the witnesses in the case before me. [ 34 ] In reading about and referring to the 16th century it is appropriate to remember the obvious. The "16th century" refers to the years 1500 to 1599.

It is very easy to become confused here in as much as the writings about that period were actually written between 1600 and 1699, and even later — thus written in the 17th century about events and practices of the 16th century and referring to events that actually occurred between 1500 and 1599 and possibly earlier. DR. WILLIAM WICKEN — Defence Expert [ 35 ] Dr. Wicken has a Ph.D. in history from McGill University and is a Professor in the History Department of the University of Toronto. [ 36 ] Dr.

Wicken testified as an historian qualified to give expert opinion testimony regarding the pre-contact period, the post-contact period to the treaty periods, and the post-treaty periods to 1930 concerning the indigenous characteristics, customs, and usages of the Mi'kmaq people in Nova Scotia, especially their hunting, fishing and gathering practices and traditions. Reference was also made as to how the evolving gaming and fishing legislation impacted/affected the Mi'kmaq people of Nova Scotia during the 19th century and the 20th century up until 1930.

The Court accepted his credentials to testify and he was so qualified to do so by the Court. [ 37 ] Dr. Wicken prepared and presented a report and documents (Exhibits 6 & 7) with the Report entitled "Mi'kmaq Night Hunting: Cape Breton" being the basis of his evidence-in-chief. [ 38 ] Dr.

Wicken divided his report into several sections which can be summarized as follows: ⋅ The first contact with Europeans ⋅ The colonization overview from first contact to approximately 1758 in Nova Scotia (mostly Cape Breton) ⋅ The Mi'kmaq population in Nova Scotia but principally in Cape Breton ⋅ Mi'kmaq hunting and the nature of that hunt during the period from first contact to approximately 1758-60 including the night hunting aspect ⋅ The post 1758-60 period ⋅ The legislative regime - i.e. the introduction of game laws in Nova Scotia post 1758 and how that legislation impacted upon the Mi'kmaq [ 39 ] Dr.

Wicken also attached a series of documents (Exhibit No. 7) which contained the writings of some of the early settlers, merchants, military and missionary personnel who lived with and observed the Mi'kmaq from the 16th century onward and later reduced their observations and conclusions to writing.

The First Contact with Europeans [ 40 ] Dr. Wicken refers to 1500 as the date generally accepted by historians as dividing the contact and post-contact periods when face-to-face interaction occurred between the Mi'kmaq and Europeans. [ 41 ] Dr. Wicken felt that first contact may have occurred in the late 1400s. He estimated that in Cape Breton it was sometime in the 1500s and probably before 1597. The Europeans were there to fish (principally cod).

They needed fresh water, they needed food (fresh meat), they needed to repair vessels, they needed protection from storms - all reasons why their ships might have come into harbour. [ 42 ] The extent of that contact is unknown. Eventually the Europeans were coming in, not only for the purposes mentioned above, but to specifically trade European goods for furs which were increasing in worth. The fishermen saw this as a way of making even more money. By the 1620s the incidental fur trade had evolved into a professional fur trade.

In exchange for furs they offered knives, baskets, mirrors, beads, cloth, and like items which of themselves might not have great value to Europeans but were exotic and unusual and had value within the aboriginal communities. Some also had great practical value - i.e., pots for cooking and cloth for clothing. The Colonization Overview [ 43 ] 1758 is a significant date as it was the year the British defeated the French at Louisbourg and marked British ascendency and occupation in Nova Scotia.

Prior to that date, however, there exists extensive French documentation leading up to 1758 which gives us a picture of the internal workings of the colony Isle Royal (Cape Breton) and these writings go back as far as 1605. Those documents paint a picture of an increasingly vibrant historical period marked by significant political, military and economic change, though there is not a lot of documentation prior to 1690.

Only as the regime became economically and politically more important do we see more and more documentation. [ 44 ] For the British the importance of the area was based on their desire to protect their strategic interest in the trans-Atlantic trade with their colonies in New England and the Caribbean and to protect their interest in the cod fishery. [ 45 ] For France there was the need to protect access to the interior of North America via the St.

Lawrence River Valley - which led to the construction of the Fortress at Louisbourg. [ 46 ] As the area became more important to each party there were more settlers, more military officials and soldiers, more sailors and fishermen. The advancement of each party's interests inevitably led to conflict and eventually resulted in the British ousting the French by their defeat at Louisbourg and later with their loss of Quebec.

Native (Mi'kmaq) Population in Cape Breton [ 47 ] With the increase in numbers of the French (and later British) there were some beginnings of documented efforts to account for the number of people in the area. Dr. Wicken is of the opinion in examining those records, both French and English, that at best these census records can only be considered general estimates - some by numerical aggregate count, some by nominal count. Various factors accounted for the lack of precise numbers.

The various "census" information, for instance, might have been collected from those close to settlement or from those who assembled for various festivals. Some never got counted, some got double counted. An important factor to be remembered when reviewing those numbers was the devastating effect of disease on the Native population.

[ 48 ] Dr. Wicken was of the opinion that historians, anthropologists and academics were in general agreement that the resultant depopulation of the native people as a result of disease, primarily smallpox, could range from between 30-90% of the time-of-contact numbers. Academics have "guesstimated" those numbers at the time of first contact, for the whole region (Nova Scotia and New Brunswick), as anywhere between 30,000 and 12,000. Dr.

Wicken felt that by the 1680s the native population of Cape Breton probably had its first encounter with smallpox, measles, and chickenpox, suffered through its decline and then stabilized. He refers to the various census taken both numerically and nominally in 1687-89 and 1708 which had the Mi'kmaq population of the Cape Breton and Canso areas showing figures of between 159 and 196. These were not accurate numbers given the fact that the means by which those numbers were attained were hardly scientific and precise.

It does appear though that the native population of Cape Breton evolved into two distinct groupings: a northern population congregating around the upper end of the Bras d'or Lake and a southern population congregating around Malagawatch, again on the shores of the Bras d'or Lake. Mi'kmaq Hunting [ 49 ] According to Dr. Wicken the Native economy and their very survival was centered around hunting and fishing. The Mi'kmaq did not raise and produce food by agricultural means though they did gather berries, fruit, etc. in season.

Fish was the mainstay though he was of the opinion that in Cape Breton trapping and hunting played a significant role. Also, the economy changed with increasing European contact after 1500, and it was the fur trade that drove that change. Families spent more and more time farther inland away from the shoreline, trapping and hunting. [ 50 ] Various mammals and birds were their prey with beaver being the most important. They also sought lynx, martens, otters as well as large mammals such as the caribou and moose. They hunted, trapped and fished according to the season. Dr.

Wicken quoted from the Jesuit Relations (Fr. Perrault, Exhibit 7, Tab 4, p.159): "If the winter supplies them with fewer Beavers upon the water, it gives them, by way of compensation, more moose upon the land. In the summer, they live well on marmots and parrotfish, with cormorants and other marine birds.

They have also bustards, smelts, mackerel, codfish, and like supplies, according to the different seasons in the forests or upon the coasts of the sea." [ 51 ] The hunt provided the Mi'kmaq not only with food but the raw materials used for coats, mittens, blankets, rugs, leggings, footwear and hides with which to make shelters. As the weather got colder they relied even more on hunting and trapping to sustain themselves, especially so in Cape Breton. [ 52 ] Moose, the largest of the mammals, played a special role in community life. Properly cured it could provide sustenance and products lasting the year.

Also a moose kill elevated the status of the successful hunter(

s) within the community. Such hunts were carried out early- to mid-fall, during the rutting season, and later in the winter on snowshoes. The winters being harsh, their very survival could often depend upon a successful winter hunt. [ 53 ] The Mi'kmaq, being social beings, lived together for political reasons to resolve disputes, interact with family groups, to form domestic relationships, to hunt and gather food. There also was the need to disperse (especially in winter) in family units so as to gather food, hunt and fish.

They felt the need to spread out so that there was a dependable resource available to supply their needs. There also may have been a conservation need, moving year to year so as not to exhaust the resource of a certain area. [ 54 ] Dr. Wicken felt that it was only logical (though not documented that well) that they moved about. "They understand the territory. They understand the landscape.

And they need to do whatever they need to do to survive." (Transcript, November 24, 2009, p.142) [ 55 ] As a result, hunting evolved from use of spears, bows and arrows, traps, snares and windfalls to the eventual use of guns, and this is shown in the documentation published about that era. Night Hunting

[ 56 ] The very existence of the Mi'kmaq was dependent on their success as fishers and hunters. When they sought out their prey, be it fish, fowl or mammal, they did not have the luxury of choice as to how they might carry out their task. Dr. Wicken said they simply did whatever it took to be successful. [ 57 ] The Mi'kmaq employed various rituals both before and after the hunt. They employed various strategies both day and night. Dr.

Wicken referred to the writings of Nicholas Denys (Exhibit 7, Tab 6) in describing how they fished at night from a canoe holding a birch bark torch to lure the fish closer so they were able to spear it. [ 58 ] Dr. Wicken also referred to the same Denys' writings in describing how the Mi'kmaq hunted at night for moose. They imitated the call of a moose, they dropped water onto a stream or river as Denys described it "constantly imitating the cry of the female" (Exhibit 7, Tab 6, p.427) so as to lure the male moose close enough to be dispatched.

Interestingly, in that same description of the hunt Denys notes: "They were all ready to draw upon him and they never missed" (supra, p.427). [ 59 ] Dr. Wicken also refers to the writings of Christien LeClercq which were published perhaps 20 years later than Denys' (1670s). LeClercq spent approximately 11 years among the Mi'kmaq (1675-1686) shortly after Denys had returned to France. [ 60 ] LeClercq referred to the hunting at night for moose. His description (Exhibit 7, Tab 8) was almost identical to that of Denys' save for one major difference.

LeClercq described how the moose, once lured close enough, was killed with shots from their guns. Thus, it is apparent that in less than one generation there was a transition from the bow and arrow to the gun. [ 61 ] Dr. Wicken was of the opinion that night hunting was integral to Mi'kmaq society and for two reasons: first, the necessity to supply food for their families and, second, to provide the means of acquiring clothing and shelter. The moose was the dependable source of both without which the Mi'kmaq could not survive. "For this reason, they did not shy away from using any method that would bring success.

They hunted at night because they had to. Men did not consider night hunting to be unfair...and searched for the most efficient and fastest method of obtaining their livelihood." (Exhibit 6, pgs. 8 & 9) [ 62 ] Dr. Wicken also testified how they hunted for moose in wintertime, using dogs and exhausting the moose by driving it into deep snow and thus chasing it down. There was no reference to this being done at night.

THE POST 1758-60 PERIOD [ 63 ] From the 1760s to the mid-1800s the Mi'kmaq continued to live much as they had prior to 1760 but their situation was made "more difficult" by the increasing arrival of more settlers from Europe. The result was that their communities gradually moved farther away from the coastline to the interior. The soils, being less fertile inland, were of lesser interest to the European settlers with their emphasis on agriculture as a basis of their survival.

By the 1820s various "tracts" of land were carved out and reserved exclusively for the Mi'kmaq - mostly along the shores of the Bras d'or Lake. [ 64 ] Yet hunting and trapping continued to be an integral part of Mi'kmaq life, and they continued to fish and hunt both day and night after 1760. There is reference in the published materials (Exhibit 7, Tab 16) of a British Officer (1846) observing night fishing near Sydney with the use of torches.

There is also the report of Richard Uniackie (Exhibit 7, Tab 18) wherein he refers to the use of lit bundles of torches used to lure lobsters closer to shore. [ 65 ] Neither of these reports referred to the use of torches at night in the moose hunt. Indeed, Uniackie, in referring to the moose hunt, was relying on secondhand information as he acknowledged:

"I have never seen the moose myself in its wild state...but I have often received accounts of their peculiar traits and habits, from the lips of those who have frequently been engaged in hunting them." (Exhibit No. 7, Tab 18, p.86) THE LEGISLATIVE REGIME [ 66 ] Dr. Wicken testified that legislation in Nova Scotia regulating hunting had its beginnings in the early 1800s. Some legislation exempted Mi'kmaq, some didn't. In Nova Scotia, as early as the 1860s legislation was passed (1864) imposing a closed season for all hunters of moose - native and non-native alike.

The legislation became more strict regarding moose, deer, caribou, and beaver, including restrictions or outright banning on traps, snares or pits in the hunt for moose. By 1926 there was but one season (October 1 to November 16) in which moose were allowed to be hunted - and with those seasons adopted the government also began to charge licensing fees. [ 67 ] Nova Scotia was following other jurisdictions in Canada and the United States. Dr. Wicken was of the opinion that the governments were becoming more concerned with the effect of settlement and development on the natural resources, including wildlife.

As a result, restrictions were being put in place limiting access to fishing and hunting resources and the forestry, all done primarily to conserve those resources for future use while at the same time extracting the maximum sustainable benefit from them. According to Dr. Wicken's report tendered before this Court (Exhibit 6, pg. 12): "As the pace of industrial development quickened, this often translated into privileging the rights of urban businessmen.

Politicians and other leading public figures justified this policy by arguing that business created jobs and so the public interest was served, either directly by increasing societal wealth or indirectly by maintaining social stability. If giving private corporations a right of access to public resources sometimes resulted in minor adjustments to rural life, this was unfortunate, but necessary, so long as the public good was served.

The implications for many farmers, labourers, small woodlot holders, and Indians, however, were more than just incidental." [ 68 ] For the Mi'kmaq, this meant the imposition upon them of new gaming laws that impacted on their traditional hunting practices. Dr. Wicken was of the opinion that many of those laws reflected a growing belief in the non-native community that hunting was a sport to be carried out under certain defined "rules". Dr. Wicken in his tendered report quoted other writers on the subject as saying that it was not the product of the hunt but the hunt itself which became primary.

"The commodity was no longer deer [or other game] but the activity. The new laws therefore proscribed these practices sportsmen thought gave the hunter an unfair advantage, such as jacking (night hunting), using dogs to chase game, and snares to trap moose and deer. Sportsmen believed such practices led to wanton destruction and should be outlawed since they undermined the right of equal access." (Exhibit No. 6, p.13) [ 69 ] This was in opposition to what Dr.

Wicken referred to as "rural" hunters (and I take this to mean native and non-native alike) whom he said were more interested in killing an animal quickly than in adhering to some "sporting" ethics. [ 70 ] In Nova Scotia, this "sportsmen's" ethic was advanced by gaming groups (i.e., N.S. Game and Island Society) whose memberships were, as he referred to, composed of : "...a roll call of the Provincial elite" (supra, p.13). [ 71 ] Nova Scotia was late (1926) in outlawing night hunting with other jurisdictions doing so as early as the 1870s. Dr.

Wicken commented: "In Nova Scotia, the ban on night hunting was probably introduced for two main reasons: to enforce the sportsmen's ethic on the rural population and to protect the tourist sports trade. The two, in fact, were inter-related. The intrusion of sports hunting into the rural economy created new market relations. What needed to be protected was the trade and this meant adopting the standards sportsmen themselves used. Using lights was considered to be unsportsmanlike conduct and therefore became the standard by which the government evaluated the practise." (Supra, p.14) [ 72 ] Dr.

Wicken also commented in his report on how the government began to place a greater emphasis on the growth and development of the tourist industry as it offered additional sources of income in trying fiscal times for the governments of the day.

[ 73 ] In his written report (Exhibit No. 6) and on direct evidence Dr. Wicken concluded by stating that the indigenous Mi'kmaq of Cape Breton hunted moose and that such a practice was integral to their society. Among the ways they carried out that hunt was by night. The ability to hunt moose in general was negatively impacted upon with the onrush of European settlers and even more so with the imposition of gaming laws imposed by the Province of Nova Scotia with restrictions such as closed seasons, restricted hours for hunting, and the banning of certain means by which the hunt was previously carried out.

Included among those methods was hunting at night and the use of artificial lights in carrying out the hunt at night. Dr. Wicken was of the opinion that the banning of night hunting with a light was done by the government more so to promote tourism and, as well, conservation. [ 74 ] In his direct testimony Dr. Wicken had addressed the issue of the use of lights at night to assist in the moose hunt.

He referred to the writings of Nicholas Denys and LeClercq, especially as both authors had specifically referred to the night hunt as previously referred to (see "Night Hunting" heading herein at paras 50-56). [ 75 ] Dr. Wicken acknowledged that there was no reference by those early reporters (Denys and LeClercq) to the use of torches or lights. His only reference to that was from a report (Exhibit No. 8, Tab 20, p.106) emanating from events in Lower Canada (now Quebec) and published much later (1869) than Denys or LeClercq (1670s-1690s). Dr.

Wicken commented: "Now there is no indication here whether this was something that's also used by the Mi'kmaq during this period. We might suggest that this is an alternative method the Mi'kmaq had used. They certainly ...we know they used flambeaus during this time period of the 1800s. They probably used it before. They might have used it as a means by which to attract moose as well." (Transcript July 21, p.172) [ 76 ] On cross examination related to the use of torches or flambeaus at night to hunt moose, the following exchange is informative: "Q.

Is there a methodology that you as an ethno historian or as an historian use to correlate tradition to historical record? A. Well, again I would just reemphasize that I'm uncomfortable with the word "tradition" and that I'm more comfortable with looking at historical records as well as processes. So that if somebody says that something is indigenous to their society that I am more comfortable in looking at historical records as a means by which to evaluate that or critically evaluate that particular

interpretation." (Transcript July 21, 2009, p.202) [ 77 ] Dr. Wicken acknowledged that there was very little written prior to 1690 regarding the nature and scope of the Mi'kmaq moose hunt. No oral tradition survives.

He did say that various writings existed that speak of the hunt in one form or another (Biard, Lescarbot, LeClercq, de Diéreville and of course Nicholas Denys), but he acknowledged on cross examination (July 22, 2009, p.293) that none of those individuals made reference to the native Mi'kmaq hunting moose at night with the aid of flambeaus. [ 78 ] Asked how he could today make the connection with hunting with a light when there is no recorded evidence of such happenings in the writings of these classic sources, Dr.

Wicken commented: "I mean, we don't know precisely how the Mi'kmaq hunt in all particular circumstances. I mean, certainly they hunt by moonlight, and that is something that comes out. And that seems to make sense. Whether or not they used flambeaus or not, it seems to me, is one of those areas where you have to use common sense. We know that in terms of fishing, they do. Denys talks about that. Would they have used flambeaus as a means to hunt other animals including moose? I think it makes sense that they would. Q. But that's speculation based on no historical foundation?

A. No, I would say that that's...it's a logical conclusion that you would draw based on what we know they do in other circumstances. That it is probable that their preferred method is to use the moonlight because they can see most clearly. And this is when they would most likely be going out to hunt. Q. Isn't that what Hardy refers to in the late 1800s? A. That's right, that's right. He does refer to that. So I think it is probable that is their preferred method of hunting, though I can't speak to all instances.

And I think this is one of, you know, the areas that you, that you really ...it's difficult for us to know exactly what happens. I mean, there are many communities. There are many families. They all live in different ecological niches where weather and climate will vary. So what they need is they need to find moose. That's what they need to do. And they need to do that in the fall, in the early fall, in September and October. And I think that is a commonality. The second thing, what they need to do is they need to find moose in winter.

And depending upon each family's circumstances, that will vary according to time and place. So, for them, I think the common sense approach is to say, well, whatever I need to do I need to do in order to find moose for my family." (Transcript, July 22, 2009, pgs. 293-295) [ 79 ] Crown counsel referred Dr.

Wicken to Denys comment at Exhibit 7, Tab 6, p. 437 where Denys comments: "All that I have said so far about the customs of the Indians, and of their diverse ways of doing things, ought to be understood only as the way in which they did that in old times." [ 80 ] Crown counsel asked if common sense wouldn't suggest that the Mi'kmaq no longer hunted in the same way as Denys related in his writing. Dr. Wicken replied: "I think that, you know, he's describing what he has been told and what he's experienced.

Now whether this continues into the future, I think he leaves that open." (Transcript July 22, 2009, p. 296) [ 81 ] Dr. Wicken did acknowledge that, of the other sources commonly considered (oral traditions or recollections), he was unaware of any references to night hunting moose with flambeaus. [ 82 ] In conclusion, Dr. Wicken, in response to the Crown asking if night hunting of moose with the aid of a light was a preferred method of hunting by the Mi'kmaq, commented that it was one method they employed. He again acknowledged there was no historical writings or oral tradition of them doing so.

The following excerpt from the transcript of evidence of Dr. Wicken (July 20, 2009 at pg. 322) is informative of the question as to whether or not night hunting with a light was a preferred method of hunting: "A. I would say that it was one method that was used. Q. But not a preferred method. A. I wouldn't say that it was the preferred method . I'd say it's probable that if they were hunting at night they would do so with moonlight, because certainly it would be easier. But I would just say it would be one method they would have used. Q. But there's no historical record or oral tradition of that, is there? A.

No, there's not. Q. So your conclusion, then, that they would is based on supposition and speculation.

A. It's based upon a reading of ...a general understanding of Mi'kmaq society, something about their hunting and subsistence practices, and the consistency with ...they live by hunting over this period from 1600 to 1850. It declines after that. It's a conclusion I think is reasonable to make based upon all these factors." (Transcript June 21, 2009, p.322, 323) [Emphasis added.] [ 83 ] Dr. Wicken stated that Mi'kmaq didn't hunt for the sake of hunting.

They did so for what they got out of it - food for survival together with products derived from the animal for the making of clothing, shelter and instruments to sustain their families; and, as time went on, for furs to trade to the Europeans for such things as cloth and guns. [ 84 ] In carrying out the hunt or in fishing they would do so by any means that were going to produce the quickest and easiest results. One way was to hunt at night when the moose were mating. Dr.

Wicken noted as to how that was described by both Denys and LeClercq, and as fully set out in the documents in Exhibit No. 7, Tabs 6 and 7. [ 85 ] Dr. Wicken again responded to the question as to why it was so done with the answer: "Because it is easy." (Transcript, July 24, 2009, p.157) DR. ALEXANDER VON GERNET — Crown Expert [ 86 ] Dr. von Gernet described himself as an anthropologist and ethno-historian with a Ph.D. from McGill University. He has been employed as a professor at the University of Toronto for twenty plus years. Dr. von Gernet was called by the Crown to give evidence on its behalf.

Dr. von Gernet specifically was asked to research and provide his professional opinion on the Mi'kmaq interest in moose and to address the question as to whether they historically hunted moose at night with the aid of illumination. (Transcript Feb. 3, 2010, p.79) [ 87 ] Dr. von Gernet emphasized that his task was not to provide any "legal" opinion on the merits of the aboriginal rights claim being put forward by Mr. Paul and Mr.

Francis, but rather: "...my mandate is to assist the parties and the Court in sifting through a record and identifying what evidence in that record has a bearing on the subject I was asked to address." (Exhibit 18, p.6) [ 88 ] His task had the time of first contact between aboriginal people and Europeans as a target date which required examining "any and all evidence" relevant to the subject. He was also provided with the report of Dr. Wicken (Exhibit No. 8) and transcripts of his evidence heard in this Court.

Dr. von Gernet was asked to provide not only his opinions but also his points of agreement or disagreement with Dr. Wicken's opinions. [ 89 ] Dr. von Gernet also was made aware of the facts as admitted by Mr. Paul and Mr. Francis in the Agreed Statement of Facts (Exhibit No. 5) [ 90 ] He described anthropology as the study of human cultures past and present.

According to Dr. von Gernet, ethnohistory doesn't describe a field of study but rather a methodology that combines the skills and training of an anthropologist with that of an historian. [ 91 ] Such skills are acquired by formal training in either discipline (anthropology or history) so that it is not unusual for that methodology to be employed by both anthropologists and historians. [ 92 ] In North America both disciplines have used that methodology and focused "primarily on the study of change and continuity among natives and newcomers", who after first contact shared an intercultural history and "single historical trajectory" (Exhibit 18, pp. 3, 4).

[ 93 ] These methodologies and anthropological reconstructions are often used to assist courts in providing evidence required to adjudicate issues regarding aboriginal rights, title or treaty rights.

Dr. von Gernet has, himself, given expert opinion evidence in that regard in 24 legal proceedings in Canada and the U.S. including six involving the Mi'kmaq in Nova Scotia. [ 94 ] Dr. von Gernet was subsequently qualified by the Court, (after rigorous direct and cross examination), "as an expert to give expert opinion testimony as an anthropologist, an ethno-historian, specializing in the use of archaeological evidence, written documentation, and oral traditions to reconstruct the past cultures of aboriginal peoples, as well as the history of contact between aboriginal peoples and European newcomers throughout Canada and parts of the United States, including Northeastern U.S., Atlantic Canada, and the Mi'kmaq." [ 95 ] Dr. von Gernet prepared a report for the Court (Exhibit No. 18) wherein he examined and discussed evidence and records bearing on the subject matter that he felt were important and relevant to his task of "assisting the parties and the Court". [ 96 ] He subdivided his report into several headings: Time of First Contact Oral Histories and Traditions Archaeological Guidance Written Documents Nocturnal Hunting Time of First Contact [ 97 ] Dr. von Gernet refers to the whole of the 16th Century as the proto-historic period, that being the transitional period between first contact with Europeans by Aboriginal peoples and the time when substantial historical records began to be produced and be made available. [ 98 ] Dr. von Gernet was of the opinion that the timing of first contact between Europeans and Aboriginal peoples in Nova Scotia cannot be reduced to a single event or point in time.

Norse seafarers, the Breton(s) (from which Cape Breton got its name) and the Portugese, all were visitors, some more frequently than others. [ 99 ] The Mi'kmaq were probably one of the earliest North America peoples to come in contact with Europeans. Dr. von Gernet was of the opinion that the first documented reference was to contact that occurred in approximately 1504.

He referred to a comment by a French Jesuit in 1614 (Pierre Biard) published in the Jesuit Relations, wherein the observation was made that the country was "first discovered" 111 years prior by French Bretons who continued thereafter to frequent the area. [ 100 ] There is also documented evidence of a Portugese explorer (Joam Fagundes) setting up a settlement in Cape Breton in the 1520s and, even more importantly, the existence of maps prepared by Portugese cartographers around the middle of the 16th Century, which maps have been identified as being of Cape Breton and: "...what is most astonishing about that evidence is that these Portugese maps actually have Mi'kmaq names on them" (Transcript, Feb. 3, 2010, p.88) [ 101 ] Such evidence would obviously imply significant contact with local natives.

It is worthy of note that Mr. Justice Leo Barry in the Newfoundland & Labrador Supreme Court case Newfoundland (Minister of Government Services and Lands) v. Drew , 2003 NLSCTD 105 , a case where Mi'kmaq Aboriginal rights were at issue, specifically accepted that date — 1504 — on substantially the same evidence as referred to above. [ 102 ] Further, by way of documented evidence, Dr. von Gernet referred to a documented account of a Norman ship the "Clarendon",

under command of one Etienne Belanger in 1583, on his third trip to this region exploring the coast of Cape Breton and coming in contact with Native people. [ 103 ] As the 16th century came to a close, it was evident that there was substantial contact by Europeans with the Native peoples - to the extent that both groups changed and adopted aspects of each other's cultures in significant ways. Native peoples were referred to as using cloth for clothing purposes, Europeans were then using tobacco.

These are but two examples demonstrating how Native people and Europeans interacted and influenced the ways of one another. Oral Histories & Oral Traditions [ 104 ] Another part of the record that presents itself to the Court for consideration is evidence of oral histories and oral traditions. [ 105 ] Dr. von Gernet described oral histories as recollections of eyewitnesses to an event.

These people had personal first-hand knowledge of certain events that they observed during their lifetime. [ 106 ] Oral traditions differ in that they are recollections or documents about past events transmitted by word of mouth from generation to generation. They are not of personal first hand observations of events as they occurred - in a legal setting they would be described as hearsay. [ 107 ] Dr. von Gernet was of the opinion that when encountering such evidence "rigorous" methods of evaluation on a case-by-case basis should be carried out. Often the two terms are used interchangeably.

He was of the opinion (accepted by some Courts: R. v Drew , supra; R. v Benoit , [2003] FCA. 236 at para. 111; Chief Victor Buffalo et al v. The Queen et al , 2005 FC 1622 at para. 453 ) that some oral traditions have preserved historically accurate information about events occurring centuries ago and others are but inventions of more recent times. (Exhibit 18, p.12) [ 108 ] Dr. von Gernet was further of the opinion that oral tradition is not something that can be assumed to be correct, but must be demonstrated to be true and accurate.

He was of the opinion that continuity between recent practices and the existence of such practices in earlier times needs to be demonstrated and not just assumed. Archaeological Evidence [ 109 ] In contrast to oral traditions which can only be projected backward in time by way of assumptions, analysis and logical reasoning, archaeological evidence is already a product of the past and is direct evidence which can be used to test circumstantial evidence arising in post- contact times. It offers the best evidence for a reconstruction of pre-contact cultures.

It was evidence generated by and a direct product of the aboriginal peoples who created it and left it behind. It does not require "proof" by way of records produced at later times. [ 110 ] In that regard, moose, tools, and implements made from moose and moose hides, did show up in archaeological sites generated in the 16th century. Dr. von Gernet referred to one archaeological site in Cape Breton (Exhibit 18, p.16) which turned up such remnants. He was of the opinion (based on that archaeological evidence) that pre-contact Mi'kmaq "likely" harvested moose when available.

Written Documents [ 111 ] Dr. von Gernet commented on how the oral tradition record made very little, if any, reference to moose and it's importance in the Mi'kmaq way of life. That is in contrast to the importance of seafood creatures (salmon, lobsters and especially eels) emphasized in the oral traditions as passed down from generation to generation.

[ 112 ] The written record from the 17th century gave a more detailed idea of conditions and customs from the 17th and 16th century. His observation was that: "What the elders were saying in the 1980s is not necessarily something that we can project to the time of first European contact. At best, we can project it to the 19th century. We need something else. We need an independent form of evidence which we don't always have. Here, we do have the luxury of independent forms of evidence.

We have a large corpus of 17th century records to at least give us an idea of what it was like in the 17th century and probably the 16th century. And we also have some limited archaeological evidence." (Transcript, Feb. 3, 2010, p.99) [ 113 ] Dr. von Gernet was surprised to see so little emphasis on moose in the oral traditions of the Mi'kmaq.

The 17th century written record contained many references to moose whereas the existing oral traditions place a far more significant emphasis on sea foods and products of the sea. [ 114 ] Thus he was of the opinion that one can't necessarily rely on the accuracy of the oral histories as related to 21st century Mi'kmaq about traditional Mi'kmaq culture during earlier times.

Some of these oral histories can and need be tested against written records. [ 115 ] Dr. von Gernet testified that when he attempts to reconstruct what happened at the time of first European contact, oral histories and oral traditions are not always of that much assistance.

What he finds to be more useful are the written documentary records generated in the 17th century which are the closest in time to actual first contact. [ 116 ] He recognized that written documentary records, though not generated by the aboriginal people themselves, "which is the downside", (Transcript, February 3, 2010, p.101), were generated by eye witnesses present at the time and many of whom had extensive personal contact with the native peoples, some living among them for decades, and who observed their practices and reduced those observations to writing. [ 117 ] In accepting the written record Dr. von Gernet recognized the necessity of critically analysing that written record.

Those records were generated by Europeans with their own biases, prejudices and backgrounds; be they missionaries, fur traders, military, etc. They all had a different reason for writing as they did. Some were motivated to emphasize the difference between Europeans and the Native peoples, some demonstrated genuine empathy for the Native peoples, and some emphasized what they perceived to be European "superiority".

But in describing the mechanics of how Natives did certain things, he felt they were not doing so from a position of being hopelessly biased. [ 118 ] In making such assessments, he also recognized that it was necessary to keep in mind these documents are of the 17th century, 100 years more or less after what he felt was a demonstrable date of first contact (circa 1504) "So what we have is a very good record of the 17th century, a poor record of the 16th century, but we do know that during the 16th century there was change.

So we have to always be mindful of that." (Transcript Feb. 3, 2010, p.107) [ 119 ] The change having the most significant impact was the introduction of the fur trade, resulting in the Mi'kmaq venturing farther and farther away from the coastline to the interior in their quest for beaver and large mammal skins.

The quest was for moose, caribou and beaver skins (and large quantities of them) as seen by references in historical reports referred to in his report. (Exhibit 18, pgs. 17, 18) [ 120 ] Yet those references from the 17th century may not reflect pre-contact reality in as much as the Native people, in changing their habits, acquired guns ("as early as 1607", Transcript February 3, 2010, p.19) which Dr. von Gernet felt may have impacted significantly on their hunting habits to the extent it greatly contributed to the virtual extinction of moose in Cape Breton.

It was his view that those classic 17th century written reports remain and are the "best hope" for reconstruction of practices at the time of contact.

[ 121 ] Dr. von Gernet summarized what he referred to as the classic sources: Samuel de Champlain, Marc Lescarbot, Pierre Biard, Nicholas Denys, Christien LeClercq , and Sieur de Diéreville, and, to a lesser extent, Julien Perrault (17th Century) and Pierre Maillard (18th century). [ 122 ] Samuel de Champlain first arrived in what is now Canada in 1603 and remained for much of his life until his death in 1635. In 1604-05 he helped establish Port Royal. He made reference to the native people (Mi'kmaq) hunting moose in wintertime and referred to how important it was to them both for food and clothing.

They also traded with the French in moose hides and beaver skins and Champlain noted how they (the French) received them in trade from various places including St. Anne's Bay (Grand Cibao) in Cape Breton. [ 123 ] Marc Lescarbot resided in Port Royal in 1606-07 and is credited with publishing the first book to describe the Mi'kmaq. In that writing he described moose in detail with an observation that, after fish, moose provided their best hunting prey. [ 124 ] He described winter as the best time to hunt moose because of the conditions and their means of effecting the kill with bow and arrows.

They used dogs, used snowshoes and were persistent in their hunt. He described how they moved from place to place once they had exhausted the moose from one area. [ 125 ] Pierre Biard, a Jesuit priest, arrived at Port Royal in 1611. He referred to the ways of the Mi'kmaq ("they did not till the soil"), how they fished and hunted for different animals with emphasis on seafood and birds, but with the hunt for moose and elk taking place in October and November.

He also referred to how various articles of clothing and footwear were made from moose hides. [ 126 ] Julien Perrault, another Jesuit priest, spent time in Cape Breton in 1634-35 and referred to the Mi'kmaq using moose fat on their bodies, and how, in wintertime, they were able to hunt moose. [ 127 ] Nicholas Denys spent approximately 33 years among the native Mi'kmaq in the Maritime area of what is now Canada, including one period in the 1650s when he set up a trading post at what is now St. Peters in Cape Breton.

He had received a letter patent from the French Crown to trade furs with the local native population and remained there (though he also set up trading posts elsewhere) until his fort at St. Peters was destroyed in 1669. [ 128 ] He began writing his memoirs shortly thereafter before returning to France in 1671. He wrote from memory and described events that took place 35 years prior to their inscription. [ 129 ] His writings are the most extensive of that era though he doesn't mention the Mi'kmaq specifically by name.

Given that it is where he spent the most time, it is generally accepted he was referring to the Mi'kmaq. Though the majority of the writing is about the French Acadians, he does refer extensively to the Natives among whom he lived and observed and with whom he traded. [ 130 ] He described the moose itself and the moose hunt as carried out during the various seasons. In spring and summer, by using stealth so as not to be discovered and using bow and arrow as the means of effecting the kill.

In the fall ( ‘ rutting time') at night they hunted from canoe in the rivers using a strategy of misleading the bull moose by dropping water onto the rivers and imitating the call of a female moose to deceive the bull moose into believing it was a female moose. Again, quiet and stealth were required to entice the male moose and upon approach it would be ambushed. Interestingly (in the context of the case at bar) Denys made the observation "the darkest night was best for this hunting..." (Exhibit 18, p.31, quote from Nicholas Denys (1908) in William F.

Ganong, ed, The Description and Natural History of the Coasts of North America (Acadia) (The Champlain Society, Ontario: Toronto) at pgs. 426-429). [ 131 ] In winter they hunted on snowshoe with the assistance of dogs. The moose were easily exhausted in deep snow after being chased, whereupon they were dispatched with a lance or spear.

[ 132 ] Denys reported how the moose not only provided food, but also how they made clothing, footwear, pouches, parts of snowshoes, and wigwams from moosehide. It could be and was used to make a canoe sail, pipe bowls and provided items used for grave furnishings. [ 133 ] Denys described how they traded those moose skins with trading posts and by enticing passing ships to stop and trade with them. Moose hunting became so pervasive, according to Denys, that the Mi'kmaq, by the 1660s, armed with guns and supplying great amounts of skins to the fur trade, hunted the once abundant moose to extinction in Cape Breton.

The result was the abandonment of Cape Breton by the Mi'kmaq as they could not sustain themselves on the remaining birds and small game. Some migrated to mainland Nova Scotia while others migrated to Newfoundland. [ 134 ] Christien LeClercq, a Recollect priest, worked mostly in Gaspé and Miramichi and had contact with Mi'kmaq there.

He gave accounts of the moose hunt (much in accord with Lescarbot and Denys) regarding the summer hunt and the winter hunt, describing with great similarity the hunting from a canoe imitating the cry of the female moose and the water droppings onto the river, and also the chase to exhaustion in the snow of winter. He also related the emphasis upon and enjoyment of moose meat by the Mi'kmaq.

His writing is more relevant in demonstrating commonality in moose hunting methods carried out by the Mi'kmaq in both Cape Breton and Gaspe than it is a commentary on how hunting was carried out in Cape Breton, itself. [ 135 ] LeClercq also noted how the Mi'kmaq utilized the moose for clothing, footwear, lodging and burial items. Of interest, LeClercq referred to the use of guns by the Mi'kmaq.

Dr. von Gernet referred to LeClercq as the second most important source (after Denys) on how the Mi'kmaq considered moose and how they went about hunting moose and utilizing the products derived from the moose hunt. [ 136 ] Le Clercq corroborated Denys' account that the Mi'kmaq hunted moose at the various times of the year, that they did hunt at night and that moose products had various applications. [ 137 ] Dr. von Gernet also referred to how things were changing in hunting methods. Denys, in writing of events when he first arrived (1630) in the area, did not refer to guns.

By the time he was leaving (1669), guns were referred to when he spoke of the abandonment of Cape Breton by the Mi'kmaq because of the extinction of the moose. LeClercq was arriving as Denys was departing Nova Scotia and LeClercq specifically mentioned the use of guns in the nocturnal hunt: "...and the Indians who are on the watch kill them with shots from their guns." (Exhibit 7, Tab 8, p.278) [ 138 ] So within 40 years we see a movement from the use of bow and arrow as a means of hunting moose to the adoption and use of firearms.

Yet even with that, the various references to the moose hunt remain strikingly similar. [ 139 ] Sieur de Diéreville was a surgeon at Port Royal who published a book in 1708 referring to his time in Port Royal between 1699 and 1700. He just briefly spoke of the moose hunt with references to the method of the kill (musket or knife) and the fact that the skin was traded or sold.

No mention is made of the bow and arrow - thus further evidence of the transition from the original native manner of hunting to one adopted from Europeans. [ 140 ] Pierre Maillard was a priest who came to Cape Breton in 1735 — over 200 years after first contact. He lived among the Mi'kmaq and spoke the language to a point where he prepared a dictionary. His recollections were published in 1758 and included exploits of a native hunter in tracking and hunting moose including reference to hunting with spears. He too referred to nocturnal hunting. Nocturnal Hunting

[ 141 ] In regard to the nocturnal hunting of moose, Dr. von Gernet examined over 2000 pages of the early documentary record; he reviewed Dr. Wicken's report on what were his opinions about nocturnal hunting and specifically how Dr. Wicken felt they used the darkness of night to provide cover. [ 142 ] Dr. von Gernet expressed the opinion that night fishing and night hunting were two entirely different activities involving two entirely different methods.

Night fishing was done with birch bark torches to attract fish and such torches were used to confuse birds - in each instance making it easier to attract the species being sought. [ 143 ] There was no question in his mind, based on the Denys account and that of LeClercq, that Mi'kmaq did on occasion hunt moose at night. But he felt it was only done at a certain time of year and for a very peculiar and specific reason.

"It is only during the fall rutting season which occurs between sort of the middle of September to the middle of October that this very peculiar technique was used where they would get into a canoe at night and quietly paddle or let themselves follow the current down the stream in the dead of night, very quietly, and then proceed to use two techniques." (Transcript, February 4, 2010, p.11) [ 144 ] Both of those techniques — a moose caller and water droppings — involved the use of sound to lure the prey closer, yet be able to see the moose but not be seen by it.

He also indicated the same technique was used in the 16th century (per Denys) and in the 17th century (per LeClercq) but by the latter period (17th century) a gun was used to dispatch the animal instead of bow and arrow. He again referred to Denys' description of such a hunt, emphasizing the need to lure and also to deceive the animal into believing it was a female moose making the call.

Denys' concluding sentence is informative: " The darkest night was best for this hunting, and the most calm, [since] the wind prevented the noise made by the fall of the water from being heard." (Nicholas Denys, supra , pp.426-29) [Emphasis added.] [ 145 ] Dr. von Gernet emphasized that there was no record of torches being used in either account when it came to the moose hunt. [ 146 ] Dr. von Gernet testified that he could find no logical "connect" between the luring method used at night (water droppings and luring calls) and the use of a light to "freeze" the animal thus enabling a hunter to dispatch the moose.

One relies on sound, the second relies upon light. He said there was evidence of the first (per Denys & LeClercq) but he did not find any historical evidence of the second method proposed by the defence. [ 147 ] Dr. von Gernet took issue with Dr. Wicken's opinion that night hunting was integral to the Mi'kmaq society. It was Dr. von Gernet's position that nowhere in the 2000 plus pages of documentation he had reviewed was there anything to suggest the Mi'kmaq "had to" hunt at night.

Yes, they do refer to the night hunt in the fall of the year, but substantially they refer to moose being hunted during daylight hours, and he felt that if there

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