Montreal Gazette




Aboriginal woodcutters win top court's backing: Have right to take lumber for homes, furniture

Three New Brunswick aboriginals secured a victory in the Supreme Court of Canada yesterday when the justices unanimously ruled they could cut wood from crown land to build new furniture and homes.

In a 9-0 decision, the court limited their constitutional right to harvest wood for domestic use.

"The right so characterized has no commercial dimension," wrote Justice Michel Bastarache. "The harvested wood cannot be sold, traded or bartered to produce assets or raise money."

The ruling could apply across the country if First Nations people can show cutting timber is rooted in the livelihood of their ancestors to use wood for such things as shelter, transportation, tools and fuel.

The decision stressed the right is "site specific," and confined to land where timber was traditionally harvested by the aboriginal community in question.

Aboriginal leaders lauded the judgment as a significant win that will improve a housing crisis on reserves and serve as a bargaining chip in negotiations with governments.

"It's beautiful," said chief Alexander McDonald, of the Shubenacadie First Nation in Nova Scotia. "People are excited. ... We're going to make decisions on how we're going to manage the forest."

The ruling follows two losses in Canada's highest court, in 2005 and 1999, on the right to fish and log for commercial purposes. Three N.B. aboriginals - Darrell Gray, Dale Sappier, Clark Polchies - fought the province in court after they were charged with illegally cutting down trees on crown land, including bird's eye maple, which is considered a luxury commodity by furniture makers.

In yesterday's ruling, the judges also took a broad, modern view of aboriginal entitlement, saying rights must be permitted to evolve rather than being frozen in time to when aboriginals used wood to make such things as birch-bark canoes or hemlock baskets.

Mark Arsenault, president of the New Brunswick Forest Products Association, said he is disappointed the Crown lost, but relieved the court left the door open to government regulation on how the timber can be accessed.

The ruling upholds decisions in the New Brunswick Court of Appeal.