Law Times

Law Times • march 6, 2017 Page 5 www.lawtimesnews.com NEWS Ontario court orders costs against Crown BY ELIZABETH RAYMER Law Times A provincial court judge has ordered that costs be paid to four mem- bers of a First Nations band near Sault Ste. Marie, Ont. 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 un- acceptable departure from the reasonable standards expected of the prosecution,'" wrote Jus- tice wRomuald Kwolek of the Ontario Court of Justice in a 28- page judgment released Feb. 13. In R. v. Sayers, three mem- bers of the Batchewana First Nation were charged with log- ging 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 Say- ers, 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 No- tice 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 practitio- ner who defended three of those charged, engaged James Mor- rison, an ethno-historian and researcher, to prepare a report on the history of the Batchewa- na First Nation and their treaty agreements. That report was released in May 2014, and it 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 Robin- son 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," says Tremblay-Hall. "Of course, the Crown want- ed to have their own expert re- tained." In May 2016, the Crown wrote to the court stating that it would not proceed with the prosecution and would be seek- ing leave to withdraw the charg- es, saying the prosecution was not in the public interest. The band members did not consent to the Crown with- drawing the charges because they wanted to address the is- sues 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 complex- ity until they got [James Morri- son'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 prosecu- tion,'" says Tremblay-Hall. 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 appli- cants, as to whether it should or should not pursue this prosecu- tion," he wrote. "It did not do so within a rea- sonable period of time [despite] considering its options by the summer of 2015." Tremblay-Hall calls the deci- sion 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 or so," she adds, referring to the Truth and Rec- onciliation Commission report, which contained a number of "calls to action," and the UN Declaration of the Rights of In- digenous Peoples. "This is another example of court saying these documents mean something, they mean that you should be negotiating in good faith. They're not just words on a page." Indeed, wrote Kwolek, "Pro- ceedings, at least theoretically, relating to native land claims should be resolved, not with the threat of a pseudo-criminal proceeding outstanding hang- ing over the heads of the defen- dants, but in a spirit of negotia- tion and cooperation. "Conversely, Counsel for the defendants argue that without an imminent threat or an im- pending crisis or a judicial de- cision that opens the door for First Nation commercial log- ging, 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 resolu- tion. LT 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. Jennifer Tremblay-Hall CCLA Gala 2017 FEATURING: EDWARD SNOWDEN via live video 2017 HONOREES: KATHERINE GOVIER JIM BRONSKILL PATRICIA GAGIC BEN MAKUCH MARGIE WOLFE ROBERTA BONDAR CRAIG FORCESE KENT ROACH ROBERTO MARTELLA IRWIN COTLER SHELAGH DAY LINDA BERTOLDI FRANCES WAITHE MARY SPENCER LISA BORSOOK DENNIS EDNEY YAVAR HAMEED BILL BOGART JASMINE AKBARALI URSULA FRANKLIN MEDIA SPONSOR APRIL 27, 2017 THE EGLINTON GRAND, TORONTO TICKETS AND INFORMATION: GALA.CCLA.ORG Join us to celebrate remarkable Canadian human rights and civil liberties activists from all walks of life Untitled-2 1 2017-02-21 9:56 AM

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