Seven Mi’kmaq First Nations have filed a lawsuit against the New Brunswick government over its forest policy and management agreements with industrial forestry companies.
The chiefs contend the province’s forest strategy, management agreements, management plans and the Crown Lands and Forests Act itself amount to an unjustified infringement of their Aboriginal and treaty rights.
“We will continue to defend our territory and our treaties against unjustified infringements of our title and rights,” said Eel Ground First Nation Chief George Ginnish.
The chiefs opposed the forest strategy brought in by the Alward government in 2014 which allowed for a 20 per cent increase in the annual allowable cut of softwood on Crown land.
The new policy reduced the amount of Crown lands that is off-limits to the forest industry to 23 per cent instead of the traditional level of 30 per cent.
“This will have a significant, permanent and negative impact on wildlife and the overall health of the forests of New Brunswick, and on the Mi’kmaq rights to hunt, fish and gather in those forests,” states a news releases issued by the chiefs.
Statement of claim
In their statement of claim, the chiefs say the provincial government did not meaningfully consult with them before releasing the 2014 strategy, The chiefs say the province entered into signed agreements with industrial forest companies without consulting the chiefs.
“Where Aboriginal or treaty rights have been established, the required level of Crown consultation and accommodation is greatest,” reads the statement of claim. “In light of the First Nations plaintiffs’ proven Aboriginal and treaty rights, the province owed the plaintiffs a high duty of consultation and accommodation, and failed to discharge that duty.”
The chiefs state the deer population with be “drastically affected” by the new policy as it allows Crown licence holders to eliminate all deer yards that are unoccupied by deer in the winter. They also contend the increased spraying of herbicides and pesticides will kill a greater amount of deer feed.
The moose population, which is used as a source of food and subsistence by some Mi’kmaq, will also be affected by the decrease in the conservation forest and the chiefs say they are concerned it will become impractical to hunt moose within a reasonable distance of their communities.
Salmon and trout stocks amy also be impacted by increased logging in buffer area close to watercourses, the chiefs state.
“The 2014 strategy goes against principles of ecologically sustainable development and falls below the ecological thresholds that are necessary to maintain a healthy forest, endangering the health of the entire ecosystem and all animals and plants that rely on it,” state the chiefs. “Such harm would not only be irreparable, but likely irreversible.
“The First Nations plaintiffs depend on sustainable forest management and a healthy forest in order to continue exercising their Aboriginal and treaty rights, and preserve and pass on those rights to future generations.”
The relief sought by the chiefs includes:
- A declaration that the province has failed to discharge its constitutional obligations toward the First Nations by failing to adequately consult and accommodate them on the 2014 strategy.
- A declaration that the implemented agreements infringe on their Aboriginal and treaty rights and are therefore void.
- A declaration that New Brunswick’s Crown Lands and Forests Act infringes the Aboriginal and treaty rights of the First Nations.
- An order for a permanent injunction to prohibit the province from taking further steps to implement the 2014 strategy, including the terms of forestry agreements with licensees.
- An order requiring the province to pay general, pecuniary and aggravated damages to the chiefs.
- A declaration that any financial compensation paid is inadequate to fully compensate the First Nations plaintiffs for the loss to their culture and way of life.
Conservation council support
The Conservation Council of New Brunswick threw its support behind the Mi’kmaq chiefs on Thursday.
Executive director Lois Corbett said the lawsuit shows how the forest policy is an infringement of Aboriginal and treaty rights.
“We agree with them when they say the forest strategy will significantly, permanently and negatively impact wildlife and the overall health of New Brunswick’s forest while also harming Mi’kmaq rights to hunt, fish and gather in the forest.
“The Mi’kmaq First Nations’ legal challenge gives us reason to be hopeful that the forestry strategy will be stopped.”
Court challenged failed in 2014
Some First Nations mounted an unsuccessful court challenge in 2014 to prevent the province from signing a forest management agreement with J.D. Irving Ltd.
The chiefs say they have tried without success to get the Gallant government to revisit the forest strategy adopted by the Alward government.
“The Mi’kmaq had hoped that the Gallant government would deliver on their promise to review and revise the forest strategy. Unfortunately, that has not happened, ” said Fort Folly First Nation chief Rebecca Knockwood.
“This strategy was brought in without meaningful consultation with First Nations and represents a break of the Peace and Friendship Treaties.”
Little government response
Natural Resources Minister Denis Landry had little to say about the lawsuit, but said his officials had been listening to the chiefs.
“We have had many, many discussions that they had with my staff right after the forestry plan was put in place,” he said. “There’s not much I can say because it’s before the court and that’s where it will be dealt with.”
He said the government still plans to make changes to the forestry plan, and he met with industry leaders in Atholville last month to discuss options.
“We’re reviewing everything that was dealt with there,” he said.
Landry wouldn’t commit to when the review will be finished because he said he missed the last deadline he set for himself.
“I was kind of burned doing that,” he said.
Green party Leader David Coon said the chiefs “just ran out of patience” with the Gallant Liberals.
Coon pointed out that while a judge turned down the 2014 request for a temporary injunction, she said at the time the case did raise serious issues that could be aired at a later date, once companies began increased logging in February 2015.
He said he doesn’t think it’s too late to undo the plan because there appears to be a surplus of wood at sawmills in the province. If large companies lost their increased quotas and needed more wood, “they could buy it from private woodlot owners,” Coon said.
7 First Nations participating
The chiefs of Buctouche, Eel River Bar, Indian Island, Metepenagiag, and Pabineau First Nations are also party to the lawsuit.
The two other Mi’kmag First Nations in New Brunswick — Elsipogtog and Esgenoopetitj — are not parties to the lawsuit.
Elsipogtog launched a landclaim in 2013 to try to take control of Crown land in New Brunswick.