Supreme Court Rejects Treaty Right to Log

By Frank Larue

East coast aboriginal leaders vowed to continue their fight for logging rights despite a Supreme Court of Canada ruling that rejected their claims to a right to harvest timber on Crown lands.

On July 20, 2005, the nation’s top court found that First Nations of New Brunswick and Nova Scotia do not have a treaty right to commercially harvest timber on Crown lands without a permit.

In a pair of unanimous decisions, the Supreme Court found that treaties signed in 1760-61 only granted the Mi’kmaq the right to continue to trade in items traditionally traded at that time.

The court said there was no evidence to prove the Mi’kmaq were logging 250 years ago when they signed treaties with the Crown.

“In order to be protected under these treaties, trade in forest products must have been the modern equivalent or logical evolution of Mi’kmaq use of forest products at the time the treaties were signed,” wrote the court.

“Logging is not a logical evolution of activities traditionally engaged in at the time the treaties were entered into.”

The court also noted that the First Nations of New Brunswick did not have aboriginal title to the lands they were trying to log.

Call for rights
Chief George Ginnish, of the Eel Ground First Nation, emerged Wednesday from a meeting of about 45 aboriginal leaders to speak on behalf of all 15 New Brunswick First Nations.

“We think another case can move forward with another set of facts in regards to aboriginal treaty rights and title. We clearly believe we have title and treaty rights,” he said.

Speaking on behalf of the Atlantic Policy Congress of First Nations Chiefs, co-chair Chief Lawrence Paul of the Millbrook First Nation, expressed the concern that: “The ruling could have strengthened the covenant chain of treaties upon which we feel is the foundation on which Canada was built.”

Paul further noted, “The relationship between the Wabanaki Confederacy Nations and Great Britain was cemented in the treaties signed between 1725 and 1794. This relationship was, and continues to be based on peaceful co-existence and mutual cooperation and sharing and I am disappointed that the Supreme Court did not further expand our treaty rights.”

New Brunswick Justice Minister Brad Green said the court’s decision brought much needed clarity to aboriginal rights in the province including questions about land title.

“It said no, there is no treaty right to engage in commercial logging on Crown land. (It) also made clear, that they were not convinced there was aboriginal in the lands pertaining to this specific case,” he said.

Natural Resources Minister Keith Ashfield said the province will maintain its forest management agreements, which gives the province’s 15 First Nations access to 5.3 per cent of the annual allowable cut. That access gives the New Brunswick First Nations timber harvesting, sale and royalty agreements.

“We will continue to honour these agreements,” said Ashfield.
President of the New Brunswick Forest Products Association Yvon Poitras, said the decision is a relief.

“If you have uncertainty over your head, it doesn’t matter which industry it is, if you have uncertainty it creates problems. Before everything is clarified, what do you do next? Now, we have a clear situation,” he said.

Joshua Bernard, a member of the Eel Ground First Nation and one of the principal defendants named in the lawsuit, said he was disappointed with the ruling and was unsure of what to do next.

“I still feel that I have a right to harvest Crown timber,” he said.
“I have to go back to my community, talk to my chief, my elders and see what steps we’re going to take.”

Previous conviction
The case began in 2000 when Bernard was convicted of illegally possessing 23 spruce logs harvested from Crown land near the Eel Ground reserve.

He appealed his conviction on the grounds that he had a treaty right
to commercially harvest logs stemming from treaties signed in 1760′s with the early British governors of the Maritimes.

But the Supreme Court decided the right emphasized trading activities, not the item being traded.

“The right conferred is the right to trade,” Chief Justice Beverly McLachlin wrote in the main judgment. “The emphasis therefore is not on what products were used, but on what trading activities were (contemplated by) the parties at the time the treaties were made. Only those trading activities are protected.”

AFN national chief Phil Fontaine noted the decision was local and is not precedent-setting.

“This Supreme Court decision is disappointing for First Nations but it is not the final word treaty rights and aboriginal rights and title in Canada, or even in the Atlantic,” said Chief Fontaine. “The decision has local application only and does not set national precedent … In future litigation, a fuller examination of the historical record will hopefully lead to a full and respectful understanding of the importance our forests have always had to the social, economic and spiritual life of the First Nations of New Brunswick and Nova Scotia,” said the national chief.

Grand Chief Ed John, a member of the First Nations Summit political executive in British Columbia, said, after reviewing the decision, “Today’s Marshall and Bernard decisions will not affect political or legal issues in British Columbia with respect to commercial logging. These decisions do not establish new legal principles. They are based on the facts about the Mi’kmaq’s relationships to the Crown and to particular portions of their territory in the 1760s.”

The court’s rejection of a Mi’kmaq treaty right to log will not affect First Nations in B.C. because such a treaty right is not asserted in B.C. since the federal and provincial governments refused to negotiate treaties here until very recently.”