In January, 2001 Maliseet citizens, Dale Sappier and Clark Polchies were stopped in their truck carrying 16 hardwood logs and were subsequently charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of, or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ First Nations and were harvested to build Clark Polchies’ house.

Sappier and Polchies informed the courts that they possessed an Aboriginal and treaty right to harvest timber for personal use.  They were acquitted at trial, however, their case was combined with a similar case of Mikmaq citizen, Darrell Joseph Gray and brought before the Supreme Court of Canada.

In December, 2006, the Supreme Court decided that Gray, Sappier and Polchies, as a member of their Aboriginal communities, had an Aboriginal right to harvest timber on traditional lands for domestic uses, including the construction Clark Polchies’ house.  Because the Court recognized their Aboriginal right there was no need to decide on a treaty right.

The Court ruled that the harvested wood could not be sold, traded or bartered and that the Aboriginal right was communal in nature, so could not be independently exercised by a single citizen and was subject to regulation by the Aboriginal community . These rights are not frozen in pre-contact practice and thus can be applied to today’s building methods.

What does this mean for First Nations? The rights in this case are held by the Mi’kmaq of Pabineau First Nation and the Maliseet of Woodstock First Nation, however, this case sets a precedent that might apply to other First Nations in Canada who want to harvest timber on their traditional territories to build housing.

While R. v. Sappier; R. v. Gray is the highest level decision made about harvesting timber for housing, other cases have been contested and have been successful for First Nation citizens.

Xeni Gwet’in First Nation citizen, Sonny Lulua appealed a decision issued in 1996 by the Deputy Chief Forester of the Government of BC. In 1994, Mr. Lulua cut and removed 30.6 cubic metres of timber from Crown land in contravention of the Province’s former Forest Act. Mr. Lulua appealed, claiming an Aboriginal right to cut timber on Crown land to construct housing for Aboriginal people.

Before the Board heard the merits of Sonny Lulua’s appeal, the parties negotiated a settlement. The Board ordered that the Deputy Chief Forester’s decision be reversed, and that the Deputy Chief Forester pay Mr. Lulua’s costs of $38,428.64 for the appeal. The appeal was allowed and Mr. Lulua’s application for costs was granted.

In 2009, the Ontario Crown prosecutor dropped charges against trapper, hunter and Grassy Narrows First Nation citizen, Roberta Keesick. Keesick was on trial for building two log cabins on her family trapline without Ontario government permits.  A pre-trial Notice of Constitutional Question filed on behalf of Keesick argued that the “Government of Ontario has no right to regulate or interfere with the…right to hunt or fish in territory governed by Treaty #3 or to use the territory traditionally cared for and used by the Anishnabe people of the Grassy Narrows First Nation for hunting and fishing, among other uses.”

Harvesting timber for housing based on an Aboriginal right is legally distinct from harvesting timber for housing based on Aboriginal title.

Many provincial governments now recognize the impacts of court decisions and have reworked their regulations in an effort to address the Aboriginal right to harvest timber for housing and other domestic uses.

Reprinted from June, 2012. This story provides information about the law and is not legal advice.  If you need legal advice, please contact a lawyer directly.