In a historic decision that could reshape the Atlantic forestry industry, the New Brunswick Court of Appeal has ruled in favour of a Mi'kmaq logger who claimed a treaty right to harvest logs from Crown land.
"This does for native peoples' access to the forestry industry what the Marshall case did for the fishing industry," said Bruce Wildsmith, the Nova Scotia native-rights lawyer who represented logger Joshua Bernard. "In many ways it is even more important."
After two appeals, New Brunswick's highest court ruled 2-1 that Mr. Bernard did not violate the Crown Lands and Forests Act when he chopped down 23 spruce trees five years ago from a patch of land near the Eel Ground Reserve where he lives, in the Miramichi area of central New Brunswick.
Mr. Wildsmith said his client was "delighted but surprised" by the decision. Mr. Bernard did not attend the news conference because the truck he drives for a living broke down in Quebec.
Native logging on Crown land has been a volatile issue in New Brunswick since 1997, when a court found in favour of Mi'kmaq logger Thomas Peter Paul. Tense standoffs followed in the forest between native and non-native loggers until the New Brunswick Court of Appeal overturned the lower-court decision.
Mr. Bernard's case has been winding its way through the New Brunswick court system for years. It began in 2000, when he was convicted of illegally possessing the timber. He was fined $300. He maintained he has aboriginal title to the area of Crown land from which he cut the trees. Although it was several kilometres from the reserve, he said the land had been occupied by his ancestors.
In 1999, the Supreme Court of Canada's landmark ruling on Donald Marshall's conviction, six years earlier for fishing eels out of season and without a licence, forced the fishing industry to allow more aboriginal involvement.
Mr. Wildsmith's appeal focused on 18th-century treaties based on ancient occupation dating back several thousand years that include a trade provision allowing Mi'kmaq and Maliseet people the right to hunt, fish and gather in pursuit of their livelihoods. This case and Mr. Marshall's turned on that element.
"In some places in New Brunswick, the logging industry is much bigger than the fishing industry because people have more access to the interior spaces than the coast," Mr. Wildsmith said. "And the right way to interpret the treaty was upheld again today."
The 380-page appeal court's decision states: "The emphasis is on assuring that the Mi'kmaq have equitable access to identified resources for purposes of earning a moderate living."
The decision is stayed for one year to allow the government, natives and forestry industry to negotiate a sharing of resources. The province has 60 days to file an application for appeal.
One member of the three-member panel, Mr. Justice Alex Deschênes, maintained there was no treaty right and argued that Mr. Bernard's original conviction of unlawful possession of Crown timber should stand.
But the other judges disagreed, including Mr. Justice Joe Daigle. He argued that aboriginal title exists on the basis of historic use and that the Crown, without justification, had infringed upon those rights.
New Brunswick Justice Minister Brad Green refused to comment on whether the province would appeal, saying only that the $4-billion-a-year industry must stay healthy while incorporating the aboriginal treaty right to harvest timber commercially.
Natural Resources Minister Keith Ashfield was scheduled to meet with the province's 15 native bands to discuss natural resources next week.
Mr. Green said the decision would top the agenda.
Yvon Poitras, president of the New Brunswick Forest Products Association, said the decision is "very dangerous."
"Any time you don't know what's going to happen is dangerous in the forestry industry in New Brunswick. If you change the game you might create problems. . . . This is very touchy. We just have to wait and see what happens."
The native community was thrilled by the outcome, if not slightly surprised.
"I can't stop smiling," said Betty-Ann Lavelle, president of the New Brunswick Aboriginal Peoples Council. "I stood in line at the courthouse this morning to get the decision, and when I read it my mouth just dropped open. I had prepared myself for the worst."
Ms. Lavelle expects that the province will appeal the decision but hopes it realizes the opportunity to forge a better relationship with natives. "Harvesting from Crown land is a right that's been denied to us for centuries. But no one wants chaos. We've had enough in this province."
An appeal would send the case to the Supreme Court of Canada and could affect a case before the Nova Scotia Court of Appeal that involves 35 Mi'kmaq loggers convicted in March, 2001, of illegally harvesting timber on Crown land.