Ontario court orders costs against Crown in treaty dispute

A provincial court judge has ordered that costs be paid to four members of a First Nation band near Sault Ste. Marie in a dispute over logging and treaty rights, after the Crown decided to withdraw charges on the eve of the trial, eight years after charges had been laid.

“I find that this delay by the Crown in reaching a decision to withdraw the charges in May of 2016 was ‘a marked and unacceptable departure from the reasonable standards expected of the prosecution,’” wrote Justice R. Kwolek of the Ontario Court of Justice in a 28-page judgment released on February 13.

In R. v. Sayers, three members of the Batchewana First Nation were charged with logging on Crown land without the authority of a forest resource licence, contrary to the Crown Forest Sustainability Act, while the chief of the band, Dean Sayers, was charged with being a party to the logging. The defendants in the case maintained that the logging was within their established treaty rights, under the terms of the Robinson Treaty of 1950.

The first court appearance took place in November 2008, but the trial was not scheduled to begin until September 2015, at which time the defendants tendered not-guilty pleas. Defence counsel filed a Notice of Constitutional Question, arguing that the defendants’ use of their land was protected by s. 35 of The Constitution Act, and could not be limited by the Crown Forest Sustainability Act.

Jennifer Tremblay-Hall, a Sault Ste. Marie sole practitioner who defended three of those charged, engaged James Morrison, an ethno-historian and researcher, to prepare a report on the history of the Batchewana First Nation and their treaty agreements. That report was released in May 2014, and substantiated the band members’ claim that the Batchewana First Nation had the right to harvest timber resources for sustenance, trade or sale under the 1850 Robinson Treaty, which had likely not been extinguished under the 1859 Pennefather Treaty.

The process to get to trial was a long one “because that research has never really been done into that particular treaty,” Tremblay-Hall told Legal Feeds. “Of course, the Crown wanted to have their own expert retained.”

In May 2016, the Crown wrote to the court stating that it would not proceed with the prosecution and would be seeking leave to withdraw the charges, saying the prosecution was not in the public interest. The band members did not consent to the Crown withdrawing the charges because they wanted to address the issues of treaty and aboriginal rights.

The Crown did concede, though, that an award of costs would be fair and appropriate.

“This judge in this particular case said, clearly the Crown was aware of these complex issues, at least as early as 2009,” says Tremblay-Hall. “That’s why he came up with this elevated cost award” of $90,000 for one defendant, and $300,000 to be divided among the remaining three, including the band chief. “He didn’t buy into the Crown’s argument that they didn’t realize the complexity until they got [James Morrison’s] report in 2014.”

The Crown’s decision to wait so long to withdraw charges “prevented Batchewana from logging for eight years … At the last moment to say, ‘we’re not going to pursue this, you should really initiate a civil claim -- they could have done that in 2009, and said, listen, we’re not going to pursue this prosecution.

Justice R. Kwolek agreed. “This court finds that the Crown should have at the very least reassessed its position, once it received the expert’s report from the applicants, as to whether it should or should not pursue this prosecution,” he wrote. “It did not do so within a reasonable period of time [despite] considering its options by the summer of 2015.”

Tremblay-Hall calls the decision to award costs “very rare; I don’t think there’s one other case in Ontario where … a cost award of such magnitude has ever been awarded against the Ministry of Natural Resources for a prosecution.

“This decision breathes light and life into those documents that we’ve heard so much about in the last year of so,” she adds, referring to the Truth and Reconciliation Commission report, which contained a number of “calls to action,” and the UN Declaration of the Rights of Indigenous Peoples.
“This is another example of court saying, these documents mean something, they mean that you should be negotiating in in good faith. They’re not just words on a page.”

Indeed, wrote Justice Kwolek, “Proceedings, at least theoretically, relating to native land claims should be resolved, not with the threat of a pseudo-criminal proceeding outstanding hanging over the heads of the defendants, but in a spirit of negotiation and cooperation. Conversely, Counsel for the defendants argue that without an imminent threat or an impending crisis or a judicial decision that opens the door for First Nation commercial logging, such assurances are mere platitudes that do not result in any action.”

The judge noted that this case before the court did not provide an appropriate forum to settle treaty disputes, and that nation-to-nation dialogue should take place in order to reach resolution.

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