Wolastoqey First Nations take New Brunswick to court for violating treaty right to harvest timber for a moderate livelihood

Last fall, the province of New Brunswick charged four Wolastoqey loggers with illegally harvesting and possessing Crown timber. Now, six Wolastoqey First Nations are suing the province for depriving the Wolastoqey people their treaty right to harvest Crown timber in order to earn a moderate livelihood.

St. Mary’s Chief Allan Polchies Jr. said, “the Government of New Brunswick repeatedly fails to recognize and respect our Aboriginal and Treaty Rights. The province needs to uphold the honour of the Crown and act in a manner that promotes reconciliation by honouring the Treaties and following the law that has been laid down by the highest court in this country.”

The Wolastoqey statement of claim, filed on Jan. 18 by the Madawaska, Tobique, Woodstock, Kingsclear, St. Mary’s and Oromocto First Nations seeks affirmation that the Wolastoqey have a treaty right to harvest Crown timber for the purposes of obtaining a moderate livelihood.

The Wolastoqey communities are also seeking monetary compensation for the losses suffered as a result of the province failing to honour the treaty right.

Wolastoqey Chiefs are pointing to the 1999 Supreme Court of Canada decision, R. v. Marshall, as affirmation that the Wolastoqey, Mi’kmaq and Passamaquoddy possess a treaty right to sell, trade, or barter resources in order to earn a moderate livelihood. The Supreme Court decision stated that Mi’kmaq fisherman Donald Marshall Jr. had a treaty right to catch and sell fish for a moderate livelihood.

Since the Supreme Court ruling two decades ago, Maritime provinces have continued to pursue penalizing Indigenous peoples for “illegally” harvesting timber and fish. Indigenous peoples have been forced to turn to the courts to affirm their treaty right to a moderate livelihood as set out in the Marshall decision.

In 2003, the New Brunswick Court of Appeal ruled in favour of Mi’kmaq logger Joshua Bernard and his treaty right to harvest logs from Crown land. Bernard had been charged with violating the Crown Lands and Forests Act when he cut down 23 spruce trees five years prior near Natoaganeg (Eel Ground First Nation).

In 2006, the Supreme Court of Canada ruled in favour of the Aboriginal right of Dale Sappier and Clark Polchies, two Wolastoqey men, and Darrell Gray, a Mi’kmaq man, to harvest timber for personal use. The men had been charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of timber from Crown lands. They were acquitted at their first trial but the province pursued numerous appeals, including all the way to the Supreme Court of Canada.

This landmark ruling recognized Aboriginal right to harvest wood for personal use for the first time but not their treaty right, nor their right to sell wood beyond the reserve. According to the Court, there was no need to decide whether Sappier and Polchies would also “benefit from a treaty right to harvest wood for personal uses.”

In 2012, the province charged two Woodstock First Nation members with illegally cutting Crown timber. Those charges went to trial but were stayed by the province, with no decision from the Court.

Treaty scholars are worried that the province will respond to the recent court challenge by the six First Nations by attempting to challenge the treaties.

Crown land in New Brunswick covers approximately half the province. The Indigenous Wolastoqey, Mi’kmaq and Passamaquoddy peoples have never ceded Crown or other land in the province.

The land is subject to the Peace and Friendship Treaties signed between the Indigenous peoples and the British Crown, starting in 1725. Unlike other treaties in Canada, the Peace and Friendship Treaties did not involve Indigenous nations surrendering rights to the lands and resources they had traditionally used and occupied.

Margo Sheppard is a long-time forest advocate and member of the Fredericton chapter of the Council of Canadians, an organization that is a member of the Peace and Friendship Alliance. She supports the First Nations in their statement of claim against the province.

The Council of Canadians recently partnered with the Wolastoq Grand Council in filing an unsuccessful judicial review against the province for failing to consult the Wolastoq Grand Council over a snowmobile grooming and fuel hub in Mount Carleton, the province’s only wilderness park and a sacred site for the Wolastoqey people. The groups are appealing the court decision.

“The province allows non-indigenous groups like forestry companies JD Irving and Acadian Timber to harvest at unsustainable rates, then comes down like a ton of bricks on those outside of that club. The hypocrisy is breathtaking,” said Sheppard.

According to Woodstock Chief Tim Paul, “We have a treaty right to harvest Crown timber for the purposes of sale as firewood in order to earn a “moderate livelihood”, but the province continues to blatantly ignore our rights and our members continue to be harassed by the province. The province cannot continue to deny us our rights.”

Tracy Glynn is on the NB Media Co-op editorial board and a doctoral researcher with RAVEN-Rural Action and Voices for the Environment, a media-activst research project based at the University of New Brunswick on unceded Wolastoq territory.