New Brunswick Telegraph-Journal
2006.12.08
Rob Linke
Natives throughout the Maritimes are cheering a Supreme Court of Canada ruling that allows them to harvest timber on Crown land for domestic use.
Thursday's unanimous decision recognizes an aboriginal right for band members to harvest timber within their traditional territory for such purposes as firewood, building furniture or a home.
It does not allow harvesting wood for commercial sale or barter. The ruling also says the right is subject to provincial regulation.
Chief Noah Augustine, a veteran of the native logging battles and co-chair of the Atlantic Policy Congress of First Nations Chiefs, said he believes the decision will significantly lower the cost of housing on reserves.
"Housing is a big issue in native communities," said Augustine, chief of the Metepenagiag Mi'kmaq Nation near Miramichi.
"I'm hoping this ruling will enable First Nations to improve housing conditions."
Chief Joe Knockwood, of the Fort Folly First Nation near Dorchester, was in the foyer of the Supreme Court on the telephone with chiefs in New Brunswick when the decision came down. He'd come to Ottawa for an Assembly of First Nations meeting.
He was soon surrounded by a small group of supporters crying out "we won! We won!"
Later, he said the ruling's immediate impact will be to help him finish building houses for the five families on his small reserve.
"I won't be backlogged if we're able to do what we're now allowed to do," he said.
"We've got harvesters, we've got what we need to bring the wood to the mill - and we have our own carpenters."
Kelly Lamrock, New Brunswick's acting attorney general, said "we're very pleased with the way the court has dealt with the decision. It is well-reasoned and it is clear."
Lamrock said the decision provides an opportunity for the province to improve the tone of relations with its native groups. He said arrangements are already being made to meet with individual chiefs to see how the ruling applies to each community.
Chief Jeff Tomah of the Woodstock First Nation, home to two of the men whose arrests for illegal harvesting sparked the court case, said the ruling should "make life a little easier back home."
He said that since being allocated 5.3 per cent of the forest by the provincial government, bands have acted responsibly.
"We've developed guidelines, we've developed protocols, we've got structures in place at home that every tree we take off the land and every species we take off the land will be documented."
The court said harvesting wood for survival purposes was integral to the culture of the Mi'kmaq and Maliseet peoples.
"The right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling," said the judgment, written by Mr. Justice Michel Bastarache, the New Brunswick jurist on the court.
"Any other conclusion would freeze the right in its pre-(European) contact form."
However, the timber harvesting right "has no commercial dimension," added the judgment.
"The harvested wood cannot be sold, traded or bartered to produce assets or raise money" - even if the goal is to finance the building of a home.
The right to harvest for domestic purposes is "communal," said the judgment. It is not to be exercised independent of the aboriginal community that aboriginal rights are meant to preserve.
The high court had already ruled against aboriginal rights to log Crown lands for commercial purposes.
But after the New Brunswick court of appeal upheld lower court rulings that absolved native men from taking timber for personal use, the Supreme Court agreed to hear the Crown's appeal.
Darrell Gray, of the Pabineau First Nation, was originally charged in 1999 after taking four maple trees from Crown land.
The trees were bird's-eye maple, an extremely valuable wood used for fine furniture, cabinetry and the dashboards of high-end automobiles.
Two others from the Woodstock First Nation, Dale Sappier and Clark Polchies, were accused of taking Crown timber in 2001.
The Crown had argued that using modern harvesting methods to secure wood to build large, permanent, modern dwellings from milled lumber cannot be seen as an aboriginal right because they are not grounded in traditional culture.
But the court ruled previous decisions said otherwise.
Mark Arsenault, president and CEO of the New Brunswick Forest Products Association, said the aboriginal right will need to be limited, co-ordinated and regulated in practice, and that the decision recognized that.
The forest industry will want to have a voice in any negotiations over how the right is realized, he said. He said "we'll have to wait and see" whether the 5.3 per cent timber allocation for natives is sufficient to accommodate the harvesting for domestic purposes.
If it's not, he said the industry would have to see "how the government would make up the difference and make sure there is enough wood to go around."
Ken Coates, a former University of New Brunswick-Saint John academic who wrote a book on the Marshall decision and native rights, hailed the ruling as yet another that recognized a more expansive set of native rights than anyone would have thought existed 15 years ago.
"This affirms what aboriginal people in the Maritimes have long believed about their right to use wood," he said.
The downside, argued Coates, is that it still leaves questions about how far the right extends. Although several native rights rulings give primacy to conservation over aboriginal rights, he said the Department of Natural Resources "is going to have to make it very clear what the conservation restrictions are and how they'll be enforced."
"All of this is still an impetus to pursue a modern-day treaty settling these questions," he said.
- with files from Quentin Casey, Carl Davies and Canadian Press.