6 First Nations sue province for charges against Indigenous loggers

Six Wolastoqey First Nations are suing the province for not recognizing their treaty rights to Crown timber.

Oromocto, Woodstock, Saint Mary's, Kingsclear, Tobique and Madawaska First Nations allege the province is infringing on their Peace and Friendship Treaty rights by "wrongfully" limiting their ability to sell and trade timber to gain a "moderate livelihood."

In a lawsuit filed in January, they allege enforcing the Crown Lands and Forests Act against members of their communities is a breach of the constitutionally protected treaties.

"First Nations have the right … to continue the cutting and trading of timber as firewood and other wood products, as that practice has evolved over the years," the lawsuit says.

In 2012, the province charged two members of Woodstock First Nation with illegally harvesting Crown timber and with illegal possession of that timber, the lawsuit says. The trial went on from July 2013 to November 2014.

During that time four expert witnesses testified "regarding their expert opinions confirming the treaty rights." The lawsuit says the province stayed those charges and allegedly "avoided a decision of the provincial court judge on the treaty rights."

In the fall of 2019, the province charged five people under the same legislation. Four of them were members of First Nations and were harvesting Crown timber to sell as firewood, "to the extent of obtaining a moderate livelihood," the lawsuit says. A fifth was someone who purchased that wood.

The lawsuit says that in both those cases, the province "wrongfully failed to recognize and respect the [First Nations'] Treaty rights."

This infringement is unconstitutional, the suit alleges, and has caused "substantial financial loss to the [First Nations] and their members." 

The allegations have not been tested in court.

The First Nations are seeking an order from the court to declare their treaty rights. They're also asking the court to declare the province has failed to honour and respect treaty rights, as well as damages "to be determined." 

In an emailed statement Abigail McCarthy, spokesperson for the Department of Natural Resources and Energy Development said it would be inappropriate for government to comment because the case is before the courts.

The province has filed a notice of intent to defend on Feb. 11 but no statement of defence has been filed yet.

Chiefs of Woodstock and Kingsclear First Nations both declined to comment. The other chiefs did not respond to requests for comment. The lawyer representing them, Maria Henheffer, did not return requests for an interview. 

Legal precedent

If this case goes ahead it could clarify if the Peace and Friendship Treaties can guarantee profit from Crown property for Indigenous peoples in New Brunswick. 

A 2006 Supreme Court of Canada ruling in a New Brunswick case has already laid some foundation. In that case, two Wolastoqi loggers and a Mi'kmaw logger were facing charges for harvesting and possessing timber from what the court considered to be Crown lots.

The ruling says the men have an inherent right to harvest wood in their traditional territories for use in their own communities, but not for financial gain.

This lawsuit specifies Indigenous loggers should be able to make a profit from the wood they harvest.