Donald Marshall ruling cited in N.B. logging case

The Gazette (Montreal)
Tuesday, September 21, 1999

FREDERICTON. A closely watched New Brunswick court case has boiled down to one basic question: do aboriginals have the same right to trees as they do to eels under ancient treaties?

The fallout continued yesterday from last week's Supreme Court of Canada decision that upheld an 18th-century treaty giving Maritime aboriginals the right to year-round hunting, fishing, gathering and trading.

The ruling overturned the 1996 conviction of Donald Marshall Jr., a Nova Scotia Micmac, for catching and selling eels out of season and without a license.

Bruce Wildsmith, one of Marshall's lawyers, mentioned the Supreme Court decision at yesterday's trial of Joshua Bernard, a New Brunswick Micmac charged with illegal possession of crown timber.

Wildsmith said part of his defence in the Bernard case is based on trading rights contained in centuries-old treaties - rights validated by the Supreme Court.

''The Marshall case is extremely significant,'' he said. ''(Judge Dennis Lordin) is going to have to decide whether logs are in the same position as eels.''

The high court said the Micmac people have a right to provide for themselves through hunting, fishing and other gathering and trading activities for what were termed ''necessaries'' under a pivotal 1760 treaty between Indians and the British Crown.

New Brunswick aboriginals have for years claimed the right to harvest lumber from crown land. One lower court found they had such a right, but it was overturned by a higher court and the Supreme Court refused to hear the case.

The Marshall decision has reopened the issue, and aboriginal groups are confident it will prove to be the lever to pry open the forests of New Brunswick and Nova Scotia to Indian logging.

''It's a great shot in the arm and a major milestone in the history of the Micmac people,'' Wildsmith said. ''Mind you, it's only as good as what governments and courts make of it.''

The New Brunswick government appealed for calm yesterday from people worried about the effects of unlimited and unlicensed hunting, fishing and harvesting by aboriginals.

Brad Green, aboriginal affairs minister, said the Marshall decision refers specifically to hunting and fishing, not logging. He said he wants to sit down as soon as possible with Indian leaders to discuss the impact of the ruling.

Green added that all hunting and fishing rights are subject to reasonable restrictions, such as conservation needs. ''I'm not expecting chaos, I'm not expecting a crisis.''