Implications for New Brunswick
Had the case been proven for the aboriginal people on either an aboriginal rights or aboriginal treaty basis and it is clear that this case failed not on its merits but on the lack of evidence presented, what effect would this have on provincial forestry?
The willingness of the New Brunswick government to negotiate shows a recognition of the need to reconcile its sovereignty with pre-existing Micmac and Maliseet nations, regardless of whether a court challenge is immanent.ii
Once a right is accepted, the question is whether the legislation infringing on that right, in this case, the Crown Lands and Forests Act, has a valid objective and respects aboriginal peoples prior interests. Clearly, the Act does not respect aboriginal peoples prior interests. Objectives that are considered valid infringements on those rights include conservation and the pursuit of regional and economic fairness. These are values that the Conservation Council asserts are not adequately addressed by the existing legislation. As an alternative it has been proposing community-based ecological approach to forest management on Crown lands, an approach which uniquely accommodates the communal nature of aboriginal rights.
iiOn May 11, 1998, the provincial government proposed an interim one year arrangement to First Nation chiefs that would transfer five percent of the annual allowable cut on Crown land to be distributed among the 15 bands proportionate to their populations. This amounts to 192,000 m3 of softwood and 52,000 m3 of hardwood. The first agreement in principle reached with the Maliseet community at Tobique provided for the related stumpage fees to be placed in a trust fund for the community, freedom to sell the wood anywhere within the province rather than to the pertinent Crown licensee, and a government to government relationship to oversee the logging activity .