Introduction

Thomas Peter Paul, the Micmac logger charged with removal of bird’s-eye maple from Crown Land has sparked a controversy of widening significance. The lowest court to hear the charge found that Paul had a treaty right to remove the logs.(footnote #2)  On appeal to the Court of Queen’s Bench, Justice Turnbull found that aboriginal people had a title right to the land, and to natural resources in New Brunswick.(footnote #3)   Justice Turnbull’s decision was successfully appealed by the Province. The Court of Appeal rejected both lower court decisions on the grounds that not enough evidence was presented to establish either a treaty or aboriginal right to harvest trees.(footnote #4)

Aboriginal rights - where do they come from? Anyone trying to make sense of the judgments immediately notices that treaty rights, aboriginal rights, and land title rights have all been referred to by the courts to determine whether Mr. Paul was guilty or innocent. All three have been protected by the Canadian Constitution since 1982.(footnote #5)  Constitutional protection means that the rights can only be extinguished by voluntary surrender or by constitutional amendment.(footnote #6)  Before 1982, aboriginal and treaty rights could be extinguished by federal legislation provided clear and plain language is used. In addition to Constitutional protection, treaty rights have long been protected from extinguishment by provincial laws through a provision in the Indian Act.(footnote #7)