Ottawa Citizen Online, Across Canada News
November 4, 1997
Chris Morris

[Please note: The following mainstream news articles may contain biased or distorted information and may be missing pertinent facts and/or context. They are provided for reference only. -- S.I.S.I.S.]

FREDERICTON (CP) Foresters and government officials reeled in shock Tuesday after a landmark court decision ruled that aboriginals own the Crown lands and forests of New Brunswick.

But native leaders were overjoyed. The decision reinforces what they've said all along: that they were here first and ancient treaties preserve their ownership of lands and forests in what are now New Brunswick and Nova Scotia.

"Our aboriginal treaty rights are finally being recognized," said Len Tomah, a vice-chief of the Assembly of First Nations. "Hopefully the government of New Brunswick will respect and honor them as well."

Natural Resources Minister Alan Graham said he expects the province will fight the decision all the way to the Supreme Court.

"Inevitably, at the end of the day, we'll probably be in the Supreme Court of Canada on this one."

Justice John Turnbull of Court of Queen's Bench in Bathurst, N.B., upheld a lower court decision that said a 235-year-old treaty gives New Brunswick aboriginals the right to harvest and sell trees taken off publicly owned Crown land.

The case came about after Thomas Paul, a Micmac, was charged with illegally harvesting bird's eye maple logs on Crown land licensed to Stone Consolidated Inc. The rare maple is prized for its unique grain.

But Turnbull went beyond the bird's eye issue to deal with the ramifications of an early 18th-century proclamation called Dummer's treaty. He said it gives aboriginals the right to harvest "any and all trees they wish on Crown lands."

"The trees on Crown lands are Indian trees," wrote Turnbull, adding that Crown lands are reserved for aboriginals.

The issue has implications beyond New Brunswick. Dummer's treaty applied to what was known as Nova Scotia in the early 1700s now New Brunswick and Nova Scotia.

"It really has broader implications in terms of reasoning for the whole Maritime region," said Fredericton lawyer Cleveland Allaby, who represents Paul. "So Nova Scotia better open its eyes as well."

Blaine Favel, chief of the Federation of Saskatchewan Indian Nations, said the case is of national importance because it affects aboriginals in other provinces.

"It addresses the relationship that First Nations people have with the land, particularly on unoccupied Crown land," said Favel, who was at a meeting in Quebec City.

The New Brunswick government leases much of its millions of hectares of Crown land to forestry companies with names like Irving, Stone Consolidated and Repap. Forestry is the province's biggest industry, employing roughly 16,000people.

Bev O'Keefe, president of the Juniper Lumber Co. of New Brunswick, which has 350,000 hectares under licence, angrily denounced Turnbull's ruling as "irresponsible."

"Not for a minute am I saying the natives shouldn't play a role," O'Keefe fumed. "I know some native people. We have some native people who work for us, both in our woodlands and in our mill. They're very good people. I just think this decision could be detrimental to what we've already put in place."

Roger Augustine, a New Brunswick member of the federal Indian Claims Commission, said forestry companies have reason to be nervous. He said if the case goes to the Supreme Court and the First Nations win, then companies like Irving and Repap will be asked to account for what they have taken off and used from Indian lands in the past and present. That would be more than just trees. It would include all natural resources, wildlife and lost opportunities for aboriginal people.

"In a lot of cases, we're not really asking for the land back," Augustine said. "We just want to be compensated for the lost opportunites."

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Ruling on Crown lands bolsters claims

Globe and Mail
Wednesday, November 5, 1997
Kevin Cox, Atlantic Bureau

A precedent-setting New Brunswick court case has recognized the 277-year-old right of native people in that province to cut trees on Crown land, bolstering land claims of aboriginal groups across Canada and sparking fears about the future of the province's forest.

Mr. Justice John Turnbull of the Court of Queen's Bench has upheld a Provincial Court acquittal last year of Micmac Thomas Paul, who was charged with violating the Crown Lands and Forests Act by cutting highly prized bird's-eye maple logs worth about $3,000 from Crown land near Bathurst that was licenced to pulp and paper company Stone Consolidated Canada Inc.

Judge Turnbull ruled that the act is not applicable to New Brunswick native people because a treaty signed between Indian leaders and representatives of the British monarchy in 1725 recognized that the aboriginal people in the province maintained ownership of their lands.

"I am of the opinion that the Indians of New Brunswick do have land rights and that such are treaty rights," Judge Turnbull wrote in a decision released in Bathurst. "It does not matter what such rights are called. It is not a right restricted to personal use, but a full-blown right of beneficial ownership and possession in keeping with the concept of 'This is our land -- that is your land.' "

He said that a legally correct way to interpret the 1725 treaty -- which was made more than 50 years before British settlers arrived in what is now New Brunswick -- would be to consider Crown lands reserved for Indians.

"The trees on Crown land are Indian trees," the judge wrote. "Not exclusively, but [the Indians'] rights are protected by treaty...At the present time, Indians have the right to cut trees on all Crown lands."

The New Brunswick government, which fears the decision could lead to widespread poaching of trees on Crown lands, will likely appeal the decision, Natural Resources Minister Alan Graham said in an interview yesterday.

Mr. Graham said 50 per cent of the province's forests are on Crown land and any widescale timber cutting would disrupt the province's management plans.

He said more than 16,000 people in the province make a living from the forest and the province is concerned that some people may use the court decision to cut trees indiscriminately.

"This is not an issue of a native person cutting a bit of wood to heat a home or to make furniture. We've always gone along with that. The concern is how that may change because of this decision," Mr. Graham said.

He said the department has laid more than 200 poaching charges this year against people who illegally cut bird's-eye maple logs, valued because of their unique grain, in Crown forests.

"That bird's-eye maple is worth between $5,000 and $10,000 a tree, and we have been seeing some hefty fines handed down [to those convicted of poaching]. But that could all change if we find we have people hiding behind the guise of treaty rights."

Mr. Graham said he hopes to meet as soon as possible with native representatives in the province and to work with them to improve forestry-management plans for Crown lands.

But native leaders believe the decision should lead to more jobs for aboriginal people in forestry. As well, they say, it will give a major boost to native land claims across Canada.

"This is not so much 'Goodbye to the forest' as 'Hello to better forest management,' " Roger Augustine, former president of the Union of New Brunswick Indians, said in an interview yesterday.

"This is great news for land claims across Canada. Just to get to this point where a judge comes in and recognizes our treaty rights is a major, major step forward, not just for forestry management but also for self-government," said Mr. Augustine, a member of a federal commission examining native land claims.

He said the recognition of native ownership of Crown land could prompt aboriginal groups to demand compensation from forestry companies such as J. D. Irving Ltd. that have been cutting there for decades.

He acknowledged there are some native people cutting trees on Crown land now but said he does not expect that number will increase because of the court decision.

The decision should also prompt provincial governments and logging companies across Canada to start working with native groups to develop forestry-management plans, Harry Bombay, executive director of the National Aboriginal Forestry Association, said in an interview yesterday.

"The provinces have never before recognized that aboriginal people and their governments have a role to play in sustainable forest management," he said, noting that 80 per cent of the Indian reserves in Canada are in forested areas.

He said the decision should prompt the federal government to consider aboriginal treaty rights when the national forestry strategy is revised next year.

As well, Mr. Bombay said, native groups should be able to expand employment opportunities in the forest industries as they negotiate with logging companies and the provincial and federal governments.

"We have unemployment rates of 95 per cent in some of our communities, and a bit of good will on the part of governments and a willingness to involve aboriginal people in the forest industries could greatly change that," he said.

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