Treaty Right to Harvest Crown Timber Upheld

Ruling could open forestry industry to Aboriginal loggers

By Len Kruzenga

Fredericton-The New Brunswick Court of Appeal has ruled that Mi'kmaq logger Joshua Bernard has a treaty right to harvest and sell trees from Crown lands that were historically occupied by first nations people in the area.

The ruling sent shockwaves rippling through the forestry industry as well as provincial government corridors across the nation, where the issue of aboriginal hunting, fishing forestry and natural resource rights is currently vexing the captains of commerce and provincial legislators alike.

The ruling comes after a three year-legal battle that began when Bernard was convicted of illegally possessing timber from crown land.

Bernard maintained he held aboriginal title to the area of Crown land on which he cut the tress, noting that his ancestors had occupied the land.

His lawyer, Bruce Wildsmith, appealed his client's conviction by focusing on treaties signed by the Mi'kmaq and Maliseet in the 1800s, which included a provision allowing the tribes to hunt and fish for their livelihood.

It was an argument Wildsmith had successfully argued in his 1999 presentation to the Supreme Court of Canada in the Donald Marshall case, in which Marshall had originally been convicted for fishing eels out of season and without a provincial fishing license.

The Marshall ruling caused the fishing industry and the province to actively pursue agreements allowing for the broader participation of aboriginal people in the fishing industry.

And the recent ruling by the Appeals Court in Bernard's case is widely expected to create a similar impetus in the forestry industry, which accounts for over $3 billion dollars in economic activity in the province.

In its 380-page decision the court said that the Mi'kmaq must be assured "equitable access to identified resources for purposes of earning a moderate living."

The three-member tribunal however was not unanimous,

Mr. Justice Alex Deschenes argued that there was no treaty right and that Bernard's original conviction of unlawful possession of timber from Crown land should be reinstated.

However the two other justices disagreed, ruling that aboriginal title exists on the basis of historic occupancy and use of the land, and that the Crown had unjustifiably infringed upon Bernard's treaty rights.

A decision on a possible leave to appeal to the Supreme Court of Canada has not been announced by the province however Natural Resources Minister Keith Ashfield met with the province's 15 bands to discuss natural resources where the recent court decision topped the agenda.

Some forestry industry representatives expressed concern over the decision.

"Anytime you change the game in the forestry industry in the province it's dangerous, you could create problems. We'll just have to wait and see what happens now," said New Brunswick Forest Products Association president Yvon Poitras.

But the aboriginal community was overjoyed by a court decision many view as a further reinforcement of their inherent and treaty rights.