Case information

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The Respondent was charged with unlawfully possessing timber from Crown lands in May, 1998, near Mullin Stream Road in the County of Northumberland, New Brunswick, contrary to section 67(1)(c) of The Crown Lands and Forests Act, S.N.B. 1980 c. C-38.1 (the "Act"). The Crown land is licensed to Repap Inc., a pulp and paper company. The Respondent was hauling wood for a Mr. Stephen Paul, and transporting it for sale to Anderson's Mill in Miramichi City. The Respondent acknowledged that he was in possession of timber cut from Crown lands without Crown authorization. However, the Respondent relies for his defence upon the existence of a treaty right or a right as part of aboriginal title. The Respondent is of Mi'kmaq descent, a registered status Indian, and a member of the Eel Ground Band near Miramichi, New Brunswick. The Respondent's defence of his charge raised the following issues for the Court: i) did the Respondent have a treaty right to commercially harvest and sell forest products either individually or as part of an Aboriginal community; ii) did the Respondent have the right referred to in i) above as part of an Aboriginal community as an aspect of aboriginal title; iii) if such rights exist, have they been lawfully extinguished; and iv) do the authorizations required under the Act infringe a treaty right or Aboriginal title right, and if so, is such infringement justified.

The Provincial Court of New Brunswick held that the Respondent had neither a treaty right nor an ability on the basis of aboriginal title which would provide a defence to his charge. The Respondent was therefore convicted of the offence. The Court of Queen's Bench of New Brunswick dismissed the Respondent's appeal. The Court of Appeal of New Brunswick allowed the appeal, with Deschênes J.A. dissenting. The majority held that the Respondent held a treaty right to harvest and sell trees growing on the Crown lands at issue, and that the right was not restricted to resources traditionally traded at the time the treaty was signed. They held that this right had not been extinguished and that the provincial legislation was an unjustified infringement of the right. Daigle J.A. also found that the Respondent could rely upon aboriginal title to the land in question. The Court stayed the effect of their judgment for one year from the date of their decision.