By Shari Narine
BATCHEWANA FIRST NATION, Ont.
The Ontario government has been ordered to pay $390,000 in legal fees for dragging its feet to end court action against four Batchewana First Nation band members.
In 2008, Batchewana First Nation Chief Dean Sayers and band members Clinton Robinson, Gilles Robinson and Phillip Swanson were charged under the Crown Forest Sustainability Act, for incidents in 2007 and 2008 of logging in the Algoma forest without a license.
Although they first appeared in court on Nov. 6, 2008, a trial date wasn’t scheduled until September 2015.
The four men pled not guilty and the trial was adjourned to May 16, 2016. Ten days before trial was to begin, the Crown announced it would not proceed with the prosecution.
In May 2014, the defendants provided the Crown with an expert report that justified looking closer at the Constitutional issues involved.
“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. It did not do so within a reasonable period of time,” wrote Justice Romuald Kwolek of the Ontario Court of Justice.
“I find that this delay by the Crown in reaching a decision… was ‘a marked and unacceptable departure from the reasonable standards expected of the prosecution.’”
The province had conceded it would be responsible for a portion of the costs incurred by the defendants, but the judge’s order exceeded the amount the province had proposed–$90,000 to Clinton Robinson and $300,000 to the other three band members.
“(Kwolek) is trying to send a message: this is not the way to deal with these issues,” said Jennifer Tremblay-Hall, legal counsel for Sayers, Swanson and Gilles Robinson. “I see it as a precedent. I’d like to see it get some coverage just for that reason, because how else does everyone know that, what I call egregious conduct on the part of the Crown, how do other bands know about that? Certainly the ministry is not going to tell anybody.”
Tremblay-Hall said she is not confident, however, that having to pay costs will deter the government from beginning legal action in similar cases impacting other First Nations.
“Because they’re so piecemeal in the way they approach each case,” she said.
Kwolek noted in his 28-page decision that the larger issue–whether the Pennefather Treaty of 1859, which varies the earlier Huron-Superior Robinson Treaty of 1850, is a “valid and subsisting treaty” –was a Constitutional question.
“There is another more appropriate and direct forum to deal with these issues rather than within the forum of a prosecution in a court that has no jurisdiction to resolve the issues ultimately sought by all parties to be resolved,” Kwolek wrote.
Tremblay-Hall is heartened by Kwolek’s citing of both the work undertaken by the Truth and Reconciliation Commission and Canada endorsing the United Nations Declaration of the Rights of Indigenous Peoples as reasons why negotiations should be pursued instead of legal action.
In granting the province’s request to withdraw charges, Kwolek stated, “In fact, this court finds that the withdrawal of these charges is consistent with the UN Declaration of the Rights of Indigenous Peoples and is consistent with the calls to action as enunciated in the Summary of the Final Report of the TRCC.”
“These things breathe meaning into negotiations and resolving these matters outside of court,” said Tremblay-Hall.
In a strategic move, the Batchewana Council had opposed the Crown’s move to withdraw the charges.
“There would have been a finding of facts that would have flowed into that guilty or not guilty (verdict). And those finding of facts would then have been a hammer, if you will, or basis upon which they could have said to Ontario, ‘Are you ready to sit down now?’” said Tremblay-Hall.
“In the way that the province and Canada operate, they don’t sit down and do meaningful negotiations absent of some form of litigation.”
Tremblay-Hall points out that before the charges were laid, Batchewana Council had written to ministry officials requesting negotiation talks on these issues. Nothing happened.
Now, with the charges dismissed, Batchewana First Nation has lost seven years of civil litigation,
“So dragging it out, allowed the government not to do anything meaningful while the band thought they were moving toward a certain ending,” said Tremblay-Hall.
She believes the band will be initiating civil proceedings to litigate the Pennefather Treaty. The hope is to move it into a case management situation, but it will still be a 10-15 year process, she says.