New Brunswick Court of Queen’s Bench, Trial Division
Judicial District of Bathurst

Heard March 1, 1997
Judgment: October 28, 1997

Appeal by the Crown from acquittal of the accused, Peter Paul, on charges involving the unlawful cutting of timber on Crown lands without the Minister's authority. Peter Paul, a Micmac Indian, was charged with an offence under section 67 of the Crown Lands and Forests Act. Section 67 prohibited the cutting down, removal or possession of Crown timber from Crown lands, unless authorized by the Minister. At trial, the judge reviewed treaties between the English and the Aboriginal people of Nova Scotia and concluded that Peter Paul had a broad treaty right relating to trade and had the right to harvest nature's bounty and sell it. Peter Paul was acquitted on the basis that he was not acting unlawfully.

HELD: Appeal dismissed. New Brunswick's Aboriginal people had a treaty protected right to cut trees on all Crown lands. The Act did not apply to them. The 1725-26 treaties did not give Aboriginal people of present New Brunswick the unrestricted right to cut trees under the treaty aegis of trade as found by the trial judge. Rather, their right arose as an appurtenance to their land rights under Dummer's Treaty of 1725-26. Under the 1763 Royal Proclamation, lands that had not been ceded or surrendered were reserved for the Aboriginal people, and Aboriginal title remained as agreed to at Dummer's treaty. Nothing overt had happened from 1763 to the present to change the parties relationship regarding land rights. They had treaty land rights similar to a usufructuary right. These rights were not restricted to personal use, but were rights of beneficial ownership and possession. Crown lands, including trees on Crown lands, were not exclusively reserved for them, but their rights to them were protected by treaty. The Crown had jurisdiction and dominion over all land and could enact laws affecting Aboriginal Treaty rights. However, governments had to accept that Dummer's Treaty protected Aboriginal land and recognized Aboriginal people's primacy when enacting legislation.


Atlantic Policy Congress of First Nation Chiefs
c. 1997
New Brunswick, CANADA
© Atlantic Policy Congress of First Nations Chiefs. All Rights Reserved.

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