Who Should Have Access? What Should It Cost?
by Erin Anderssen
The Globe and Mail
The New Brunswick government has ordered native loggers off Crown land after the province's Court of Appeal overturned a landmark decision giving them unfettered access to the forests.
The move cracks the uncertain calm between the government and native people, who began harvesting trees freely last fall and are vowing to ignore the court ruling and keep cutting.
"I hope people on both sides don't create a situation where people get hurt," said Roger Augustine, former president of the Union of New Brunswick Indians. "But [native people] are not going to walk away. The story on the street is, we're not going to leave. We don't care what the province does."
The province is appealing for reason. At the same time as Premier Ray Frenette was calling for an immediate halt to all unauthorized cutting, he said he hopes to negotiate a deal with native leaders that would see them take a small share of the fees charged to companies that cut Crown forests.
"Hopefully we can resolve this in a friendly manner," Mr. Frenette said. "My first approach is with the carrot. We've put quite a bit on the table to get them to work with us."
The five-member appeal court ruled unanimously against a Court of Queen's Bench decision that said 18th-century treaties gave New Brunswick natives the right to harvest Crown land commercially. The appeal court also criticized the judge for using his own historical research, and argued that key documents did not apply to New Brunswick.
The appeal court directed the provincial court to find Micmac logger Thomas Peter Paul guilty of illegally taking provincial trees. He was charged in May, 1995, with stealing three maple logs, hoping to sell them for several thousand dollars. The case, which has major ramifications for New Brunswick's billion-dollar forestry industry, is expected to go to the Supreme Court of Canada, where aboriginal leaders expect to win.
They point to that court's historic Delgamuukw ruling in December, which said native people have a constitutional right to ancestral lands and can use them almost entirely as they wish. Because the decision applied specifically to natives who have not signed away their lands in treaties, it has special significance for natives in British Columbia and Atlantic Canada.
For now, however, New Brunswick operates with the upper hand. Mr. Frenette said the government will give native loggers "days, not months" to vacate Crown property. He has offered them help to move the wood they have cut.
Native leaders met late last night to decide their next move, which is expected to include seeking a stay on yesterday's decision. But Mr. Augustine said there probably will be more, not fewer, native loggers in the woods in the next few days. Aboriginal communities, he said, have become too attached to the jobs their forestry operations have created to give them up.
Tim Paul, president of Thunder East Corp., an aboriginal logging company, said he has no intention of leaving. "We're just going there to work," he said. "We're not going there to fight. But if we have to defend ourselves, we won't lay down dead."
Even the most pragmatic native leaders were not faulting that approach. Phil Fontaine, National Chief of the Assembly of First Nations, said the best way to avoid trouble in the woods is to start negotiating a solution. But he supports the loggers who stay. "They're prepared to stand their ground," he said, "and I can't blame them."
Mr. Frenette made it clear that he wants to talk. But the government's offer is a far cry from what the native community hopes to gain in court.
The province says native loggers must follow the same rules as other New Brunswickers working on Crown property. The law requires loggers to cut designated blocks of trees, follow environmental and safety standards, and send all wood to provincial mills. But in a meeting with native chiefs Monday, the province offered aboriginal communities a small share of the $46-million it collects each year in harvest fees. The meeting ended without an agreement, but plans were set for a third discussion in a couple of weeks. The province says the offer stands, even with the court decision.
"We're pleased to see we can now restore some harmony," said Natural Resources Minister Alan Graham. "But we're still willing to sit down with native leaders and help them benefit economically from Crown land."