Top court upholds aboriginal logging rights on Crown land

Native people have the right to log Crown lands for personal use, the Supreme Court ruled Thursday in a unanimous judgment on two New Brunswick cases.

'A practice undertaken for survival purposes can be considered integral to an aboriginal community's distinctive culture.' -Supreme Court decision

The high court judges decided three New Brunswick men who took Crown wood to make furniture, build a home and burn as firewood were exercising their aboriginal rights, not stealing.

The ruling upholds the decision of the lower courts in New Brunswick, which also ruled in the men's favour.

"The respondents possessed an aboriginal right to harvest wood for domestic use," the judges wrote in their summary.

In 2005, the Supreme Court had ruled against aboriginal people's right to log Crown lands for commercial purposes — but these men were clearly logging for personal use, the court said.

Darrell Gray, who is Mi'kmaq, was originally charged in 1999 for taking maple trees from Crown lands near three reserves. Clark Polchies and Dale Sappier, both Maliseet, were charged two years later for harvesting trees on Crown land without a licence.

The Supreme Court judges ruled that both Mi'kmaq and Maliseet people logged wood on those lands long before Europeans arrived in North America.

The judges said records show the wood was historically used for shelter, transportation, tools and fuel. It was key to native people's survival.

"A practice undertaken for survival purposes can be considered integral to an aboriginal community's distinctive culture," the judges wrote in their summary.

The judges said the right to harvest the wood must be allowed to evolve with the times. Historically, natives used the wood to build temporary shelters, but now the right must be allowed to evolve to the construction of modern homes, they wrote.

They stressed that the wood cannot be sold, traded or bartered for money, even if the money is used to build another home.

Native leader applauds decision

Jeff Tomah, chief of the Woodstock First Nation in New Brunswick, praised the decision. Sappier and Polchies belong to Woodstock First Nation.

"Housing has been an issue for quite some time and this case here, of course, will help," said Tomah.

"There's a lot of our people scattered and we haven't had time to build houses in a timely manner, but this is a landmark decision that will sure help our people."

Sappier said he never thought it would go this far.

"I thought, you know, that we were just a couple fathers out getting some wood to build some furniture and it just escalated to something that blows our minds when you think about it."

The judges' decision follows a long legal battle.

After lower courts and the New Brunswick Court of Appeal ruled in favour of the men, the Crown appealed to the Supreme Court.

New Brunswick government pleased

The New Brunswick government is pleased the Supreme Court brought clarity to the issue.

"In this case, we really do have a well-written decision," said Education Minister Kelly Lamrock, speaking on behalf of the government.

"It is well reasoned and it is clear … It's one that we certainly believe can be accommodated in our shared interest of managing the land."

Six provinces, the federal government and two forest industry associations intervened in the case, siding with the New Brunswick government.

Nova Scotia was one of the interveners.

The provincial government announced Thursday it will review the ruling to determine the potential implications for Nova Scotia.

Provincial Natural Resources Minister David Morse said an agreement signed in 2002 involving the Mi'kmaq and the Nova Scotia and federal governments will lead to full negotiations on native rights issues, including forestry.

But native rights expert Ken Coates said the ruling leaves a lot of room for interpretation and that there will be questions about how far this non-commercial right can be taken.

"It says they can use it to construct a home, to build furniture to make a boat, that kind of thing, so those elements are included. There will be attempts to push that envelope to see how far they can push it."