Late judge was 'ahead of his time' on Indigenous right issues, professor says

John W. Turnbull, the New Brunswick politician, lawyer and judge known for his decision to recognize Indigenous logging rights, died Tuesday at age 84.

Turnbull served as a Court of Queen's Bench justice for 28 years. He was born in Montreal but lived in Saint John most of his life. 

In the Peter Paul logging case in 1997, Turnbull wrote the decision that recognized Indigenous peoples' right to harvest timber from Crown land for commercial purposes. 

The decision was overturned on appeal and the man at the centre of it, Thomas Peter Paul, was fined $120 for illegal harvesting.  

But Indigenous rights expert Ken Coates said Wednesday that the repercussions of the unprecedented decision remain to this day.

"Judge Turnbull was ahead of his time," said Coates, a former University of New Brunswick professor who is now with the University of Saskatchewan. "He took an extraordinary step because he didn't think that the evidence coming to him was sufficient."

Before 1997, there weren't many laws that dealt with Indigenous rights to fishing and harvesting. The Peace and Friendship Treaties were signed in the 18th century but were not land-surrender treaties and were never enforced.

In 1997, Peter Paul, of Pabineau First Nation, south of Bathurst, was arrested for cutting wood on Crown land. A lower court judge ruled in his favour but on appeal the case came to Turnbull.

Coates said Turnbull did the "extraordinary" thing of doing his own research, because he found the evidence before him insufficient.

"He was trying to set right a legal and historical wrong," Coates said. 

"If you step forward to 2020 and hear of his unfortunate passing, you also realize he was a judge who understood where the wave of history was heading and decided to get in front of the wave instead of waiting for it to wash over the province of New Brunswick."

It awakened in New Brunswick that Indigenous people had a right to access timber and crown lands and to harvest that and to sell that product.​​​​- Graydon Nicholas, former provincial court judge.

Peter Paul's team tried to take Turnbull's overruled decision to the Supreme Court of Canada, but it refused to hear the case.

Two years later, however, the Supreme Court of Canada upheld a decision in the Donald Marshal case that recognized Indigenous peoples' right to fish commercially in Nova Scotia.

"He was sort of part of a very important process of recognizing that history had not been kind to Aboriginal folks, realizing that the legal system had not been kind to Aboriginal people," Coates said of Turnbull.

And even though the Peter Paul decision itself wasn't upheld, retired provincial court judge Graydon Nicholas says the province changed its policies directly because of it.

"It awakened in New Brunswick that Indigenous people had a right to access timber and Crown lands and to harvest that and to sell that product," he said.

Nicholas said he and another judge were appointed to a task force to respond to the logging dispute. At that time, the unemployment rates among Indigenous people in New Brunswick was 80 to 85 per cent, he said.

But Indigenous people wanted to work and make a living. That's when the province decided to allow them to apply for licences and harvest up to five per cent of land, he said. People were limited in how much they could cut, and also who they could sell to and where, Nicholas said.

Almost 25 years later, New Brunswick is still involved in a legal battle with members of different First Nations. Last August, the province charged three members of a First Nations firewood harvesting association with illegal harvesting. Their cases are still going through the court system.

And in January of this year, six Wolastoqey First Nations sued the province for not recognizing their treaty rights to Crown timber.

Oromocto, Woodstock, Saint Mary's, Kingsclear, Tobique and Madawaska First Nations allege the province is infringing on their Peace and Friendship Treaty rights by "wrongfully" limiting their ability to sell and trade timber to gain a "moderate livelihood."

Coates said after the Turnbull and Marshall decisions there was a realization that something needed to be done to clarify and further recognize treaty rights, perhaps through a modern treaty, but that hasn't happened.

"History does seem to repeat itself over and over and over again," he said.

Personally remembered

Saint John lawyer John Barry said he knew Turnbull personally and described him as a kind, jovial man. Before he was a judge, Turnbull served as MLA for Saint John and Saint John Harbour from 1973 to 1978.

Barry said he was not afraid to level with people,

"[He] was a larger than life character in a very positive way."

Turnbull's decision in a medical malpractice case has been cited nationally close to 100 times since it came out in 1990, Barry said. 

Turnbull ruled that the doctor, or the respondent, has more responsibility to show evidence, rather than the complainant. 

It shifted the balance and put the onus on the expert rather than the patient alleging malpractice, Barry said.

"It changed the traditional approach," Barry said.

His obituary says Turnbull was an avid outdoor sportsman, master salmon-fly tyer and loyal supporter of the Kennebecasis Valley Food Bank. Because of COVID-19 health restrictions, a memorial service and interment of his ashes will be held at a later date.