Two-thirds of Native loggers illegally harvesting wood in New Brunswick forests have defied a recent New Brunswick Court of Appeal decision, which overturned a lower court ruling, based on a 265-year old treaty giving aboriginal people ownership of the province's Crown timber resource.

About 70 Native logging operations began harvesting Crown timber once it became legal for them to do so, following a controversial court ruling earlier this year. Three weeks after the decision had been Overturned, 43 were continuing to operate illegally and 27 others were engaged in site clean-up operations, according to the New Brunswick Forest Products Association (NBFPA).

SID far, the Province and logging contractors have avoided confrontation with illegal operators, but in an exclusive interview with Logging and Sawmilling Journal, the executive director of the NBFPA says the province will eventually have to act.

"The Premier has been saying that this has to come to an end," says Association executive director Max Cater. "They have been very tolerant and they would like to see Native loggers come out, sit down and come up with an arrangement that any harvesting they do will be done legally." There seems to be interest among many Native loggers, he adds, to find a solution.

So far, however, loggers from the province's three largest Native bands have refused to vacate their cutblocks.

Over the past four months, since New Brunswick Court of Queen's Bench Justice John Turnbull rendered his decision granting Natives the right to harvest and sell wood from Crown land, they have harvested about 75,000 cubic metres. This represents a small amount compared to the province's 5.3 million cubic metre annual allowable cut, but they have not operated within guidelines set out in forest management plans.

"They went where it was accessible, a lot of it along roads and highways," says Cater. Normally, that is not permitted within forest management plans.

The immediate objective is to convince loggers working illegally to vacate their cutblocks, but the long-term issue of harvesting rights is just another chapter in the complex issue of Native land claims.

Cater says the primary reason the New Brunswick Court of Appeal threw out the decision was because there was no evidence presented at preceding trials to show that the 265-year-old Dummer's Treaty is applicable to this case of Native harvesting rights.

The whole issue landed in court two years ago, when a Micmac named Thomas Paul was charged with illegally harvesting bird's eye maple, a rare wood species prized for its unique grain, from Crown land licensed to Stone Consolidated. A lower court judge ruled in favour of Paul, based on Dummer's Treaty, and the Crown appealed to the Court of Queen's Bench, where Justice John Turnbull agreed with the lower court ruling. His ruling was recently overturned at the Court of Appeal.

Aboriginal groups say they have evidence supporting their claim that Dummer's Treaty is valid, says Cater. So it appears that the whole trial process will head back to square one, moving once again up the legal ladder.

Dummer's Treaty was proclaimed near Boston, Massachusetts, in the early 18th century. According to Justice Turnbull, the treaty gives Natives the right to harvest any and all trees on Crown land. The Court of Appeal said no evidence was presented to support this claim.

While New Brunswick Premier Ray Frenette has said Natives must halt all illegal logging activity, negotiations continue between the province and Native leaders to resolve this issue. The New Brunswick government has offered to share the resource and stumpage fees with Natives, and provide training and technical support to Native loggers to help them develop their own businesses.

New Brunswick loggers, however, wonder who will pay for the Premier's offer to Native groups. Ultimately, if Native workers replace existing forestry workers, there will be job losses.

"There's no magic in that," says Catei. "There are just so many jobs out there to harvest 5.3 million cubic metres of wood."

The province's forest industry already imports 10 per cent of its softwood requirement to keep its mills operating, and there is 13 per-cent provincial unemployment.

"So if a couple of hundred members of the aboriginal community decide they want to work in the woods, or the province gives them permission, obviously that same number has to come out on the other side," says Cater. "There's only so much out there that is going to be harvested." Mill owners should not suffer as long as Native loggers follow wood distribution plans.

Forestry is New Brunswick's largest industry and employs 16,000 workers. New Brunswick is second only to BC for its dependence on the forest. So far, there has been no confrontation between contract loggers and loggers working illegally. Cater points out that there are also non-Native loggers working illegally with Native loggers.

The situation is about to become a little more tense at ground zero. Fortunately, the Turnbull decision came down just as many logging operations were winding down for spring break-up. But contract loggers are now returning to the woods to resume operations.

Cater says they have left it up to individual license holders to instruct their logging contractors on how to respond to potential confrontational situations.

However, as some contract loggers face potential job losses should the province come to an agreement with Native leaders, there is bound to be some hard feelings within some cutblocks.

Cater adds that the industry cannot afford a long, drawn-out situation of illegal harvesting.

"You cannot have licensees building roads, managing forests, planting trees, commercial thinning and pre-commercial thinning at great cost," he says, "and then have someone else just come in and harvest wood that is to be harvested in the year 2020 or 2030. It doesn't make any sense."

The province is keeping industry leaders closely apprised of ongoing negotiations with Native leaders, and its intentions regarding those who have so far defied the Court of Appeal decision.

Letters

Witless wonders in government

Re: Sawmilling in Scandinavia, Logging and Sawmilling Journal, February 1998. Here we go again. The Nordic countries, with less forest land and lower productivity, are once again beating our socks off in the world market.

Why? The Swedes are not necessarily smarter than us. The one fact that was overlooked in your article is the issue of land ownership - this is the simple reason why we are losing market share. In Scandinavia, the vast majority of the workinc, forest is owned by the citizens, not regulated by witless wonders in government.

In BC, as long as we struggle along with 95 per cent of the working forest administered by Victoria, we are going to go nowhere. Call it privatization, forest homesteads, woodlots, whatever - it is time for some major reform! Harold E Macy Courtney, BC

Clarification

In reviewing John Clarke's article in the April issue, I noted that I was quoted incorrectly with respect to some numbers on research and development expenditures. The numbers I gave John were from a report by Clark Binkley and Otto Forgacs entitled "Status of Forest Sector Research and Development in Canada, June 30, 1997".

The article should have read: According to Ian de la Roche, President of Forintek, about $125 million is spent by the industry, including their investment in the three institutes (Paprican, FERIC and Forintek). Pulp and paper projects account for more than 70 per cent of the spending. Of the remainder, less than 20 per cent represented research and development dedicated to the wood products sector and less than 10 per cent in logging, log transportation and silviculture. Forest sector research and development spending in Canada totaled across all sources is about 0.4 per cent of the value of shipments.

Last year, Forintek's budget was $17 million, not $80 million, and this represented about 80 per cent of the industry's investment in wood products research in Canada. Incidentally, we are not the primary research institution in BC. Our sister research institutes, FERIC, Paprican and the University of BC, also carry out sioficant research activities in British Columbia.