Court sides with aboriginals on right to cut Crown timber

 Janice Tibbetts, CanWest News Service

Published: Friday, December 08, 2006

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

In a 9-0 decision, the court limited the constitutional right to 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, which did not define the limits of personal use, could apply across the country if natives can show cutting timber is rooted in the traditional livelihood of their ancestors to use wood for things such as shelter, transportation, tools and fuel.

The decision also stressed the right is "site specific" and confined to land where timber was traditionally harvested by the aboriginal community in question before contact with European settlers.

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 to secure rights to other resources.

"It's beautiful," said Chief Alexander McDonald, of the Shubenacadie First Nation in Nova Scotia. "People are excited. I've got so many phone calls today. We're going to make decisions on how we're going to manage the forest."

The ruling follows two losses in the Supreme Court in 2005 and 1999 on the right to fish and log for commercial purposes.

Three New Brunswick natives -- 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 things such as birch-bark canoes or hemlock baskets. "The right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling," said the ruling.