) ) HER MAJESTY THE QUEEN ) N. Carnegie ) for the Crown - v. - ), 2011 MBPC 82

2011 MBPC 82 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) N. Carnegie ) for the Crown - and - ) ) CHARLES HENRY BEER ) Self-Represented ) for the Accused Accused. ) ) Judgment Delivered: ) December 13, 2011 SLOUGH, P.J. INTRODUCTION [1] On December 29, 2009 natural resource officers, acting on a complaint, went to a

section of Crown land located in the Roblindistrict of Western Manitoba. The officers determined that the defendant in this matter, Charles Beer, had been cutting white sprucewithout a permit as required by s. 37 of the Forest Act. Further investigation revealed that over the course of two years Charles Beer hadharvested 145 cubic metres of timber with over 100 cubic metres being harvested in 2009. It is an admitted fact that Charles Beer did nothave a permit to harvest timber.

However, Charles Beer, a self-described farmer and woodsman, is a member of the Western ManitobaMétis community and asserts that s. 37 of the Forest Act is of no force and effect as it violates his rights under s. 35 of the ConstitutionAct, 1982. [2] Charles Beer’s argument is in large part based on what he asserts as the lack of government action in implementing a numberof judicial decisions. I will expand on the applicable legal principles later in this judgment but simply stated the legal backdrop is asfollows: the Supreme Court of Canada in R. v.

Powley 2003 SCC 43 , [2003] 2 S.C.R. 207 confirmed the existence of the Métisright to harvest. In a 2006 decision R. v. Sappier; R. v. Grey 2006 SCC 54 , [2006] 2 S.C.R. 686 the Supreme Court determinedAboriginal rights included the right to harvest timber for the construction of a dwelling. Until the decision of the Manitoba ProvincialCourt in R v. Goodon [2009] M.J. No. 3 the question of whether or not the Métis in Western Manitoba had Aboriginal rights was amatter of dispute between the Manitoba Government and the Métis community.

The Goodon (supra) decision pronounced on January 8,2009 confirmed the Aboriginal rights of the Métis in Western Manitoba. Included in those rights was the right to harvest timber fordomestic use. Charles Beer maintains that what he characterizes as the government failure to implement and respect these decisions isthe central issue in this case.

While I agree this is a very significant factor in determining the outcome of this case there are other factorswhich need to be weighed in determining the appropriate result, including the nature of the harvest undertaken by Charles Beer; the sitewhere the harvest occurred; and his decision to act unilaterally in undertaking the harvest without seeking a permit or formallychallenging the government regulatory scheme.

POSITION OF THE PARTIES: CROWN [3] John Dojack (hereafter Dojack), the Director of Forestry for the Manitoba Forestry Branch of Manitoba Conservation,testified with respect to the regulatory scheme governing forestry in Manitoba. He testified that for individuals the timber harvest issubject to a system whereby permits must be issued prior to harvesting on Crown land. Dojack testified that all Canadian jurisdictionsutilize a permit system to allocate the timber harvest. The permit will detail:

(1) The location where the timber may be harvested.

(2) Cleanup required after harvesting.

(3) The volume of species of trees to be harvested specifically no individual is permitted to harvest in excess of 100 cubic metres per year.

(4) Fees to be charged with respect to the amount of timber that is harvested. [ 4 ] A number of factors are considered in determining whether or not to issue a permit in a specific area. Included in these are: (

a) Whether or not the timber is in an ecological reserve. (

b) Wildlife or fisheries concerns. (

c) Other users such as cross country skiers or ATVs. (

d) The species of the trees to be harvested. [ 5 ] In his evidence Dojack indicated that the location where Charles Beer cut timber was subject to a number of factors that raised concerns about harvesting in that area:

(1) First of all, white spruce (Manitoba’s provincial tree) are relatively rare in the area where Charles Beer was cutting and Manitoba Conservation had previously declined to issue permits to harvest white spruce. Dojack also noted that white spruce are more difficult to regenerate than other species and relatively slow growing .

(2) A second factor was that the location in question formed part of the Rosewood corridor. The Rosewood corridor is an area that links the Riding Mountain (a National Park) and Duck Mountain (a Provincial Forest and Park) areas. Although the Rosewood corridor is predominately agricultural, efforts have been made by Manitoba Conservation and other groups to redevelop this area in a way that facilitates the movement of wildlife between these two ecologically sensitive and important areas.

(3) Thirdly, the evidence shows that other people utilize the area where Charles Beer was cutting. For example, a neighbour gave sleigh rides in that area. In order to ensure the safety of others, Charles Beer had blocked a trail while he was cutting. Apparently, this blockage inconvenienced the neighbour, who in all likelihood called Manitoba Conservation thereby launching the investigation.

(4) Dojack testified that the manner in which Charles Beer harvested would make it more difficult to re-establish white spruce and could pose a fire hazard.

(5) He further testified that the amount of timber harvested by Charles Beer in 2009 was in excess of the annual limit for individuals and overall the timber harvested would have been sufficient to build a large home of up to 3000 square feet. [ 6 ] Dojack testified that in response to decisions of the Supreme Court of Canada and Goodon , Manitoba Conservation developed a “forestry branch circular” - a policy - (Appendix

A) dealing with the allocation of timber harvests to Métis and First Nations harvesters. Earlier versions of that policy applied only to First Nations harvesters. [ 7 ] This revised policy was not issued until January 2010 approximately one month after charges were laid against Charles Beer. The permits issued to Métis and First Nations harvesters after 2010 were described by Dojack as “free permits” meaning that Métis and First Nations harvesters were not required to pay fees but were subject to all other conditions of the permit scheme on a priority basis with respect to other harvesters.

Dojack testified that to his knowledge these free permits were not issued to Métis harvesters prior to 2010. (I will comment further on the revised policy later in this judgment.) [ 8 ] The Crown called Grant White (hereafter White) the district supervisor in the Roblin office of Manitoba Conservation who testified as to the local practice with respect to the issuing of timber permits. In contrast to Dojack’s evidence, White testified that the Roblin office of Manitoba Conservation had been providing free timber permits to Western Manitoba Métis harvesters since 2008.

In support of this statement he produced copies of a number of free permits issued to individuals described on the permit as being “Métis”. These permits start in 2008 and continue on into 2011. White testified that the decision to issue free permits to Métis in 2008 was an interim step while Manitoba Conservation developed policy with respect to Métis harvesters. The authority to do so apparently being contained in certain e-mails that were not tendered in evidence.

It is surprising that Dojack the head of the Forestry Branch for Manitoba Conservation was unaware of this practice but that was the evidence presented to the Court. White testified that since 2008 there was an increase in Métis harvesters applying for free permits. However, the evidence also demonstrates that it took several years for Métis in Western Manitoba to become aware of the availability of free permits. [ 9 ] White testified that Charles Beer applied for a permit with respect to the harvesting of the timber that is the subject of this trial.

That application was made on January 4, 2010 six days after harvesting occurred. As one might expect the preferred practice is to

apply prior to cutting. Three months later on March 5, 2010 Manitoba Conservation responded indicating the permit would not be approved. The reasons for declining the request were as follows: “This letter is to advise you that your Application for Timber Permit dated January 4, 2010 for 100 logs of green tree length spruce was forwarded to Manitoba Conservation, Western Region, Integrated Resource Management Team (IRMT) for review. The IRMT was advised that you were applying for a free permit based on your Métis status and that the wood was to be used for your own use to construct a house and garage.

Your permit application for that type and amount of timber, in that particular area, cannot be approved. The area in which you have applied to harvest timber has been requested in the past by others and those requests have been denied for several reasons. Firstly, the total annual volume of softwoods that can be harvested on sustainable basis in Forest Management Unit 10 (where you have to harvest) is very low and there is no sustainable volume of white spruce allocated for harvest.

Secondly, the area in question is important wildlife habitat area and is located in a critical wildlife travel corridor between Riding Mountain National Park and the Duck Mountain Provincial Forest. Manitoba maintains the authority and responsibility to manage Crown lands and resources to ensure long-term sustainability for all users, including Aboriginal rights-holders. In the case of timber resources, this is done through the timber permit process, which applies to all users and potential users of the resource.

Permits are only granted in situations where the overall sustainable management of the resource base will be not be compromised. In addition, the IRMT understand that you have been charged for illegal harvest of a significant amount of timber for which you did not obtain any type of permits. I understand that this matter will be before the court in the near future.

Further, there is currently a quantity of recently harvested timber on your property at this time.” [ 10 ] White testified that if Charles Beer had applied prior to cutting efforts would have been made to find an alternative site for harvesting in the immediate area. During cross-examination White described the process and the factors considered in determining whether or not to issue a permit: “Q But you, but you just said I had to apply, it was a different process. A Yes, yes we would have looked at it.

We want to know where you are cutting, the volumes, and like some of these other ones, we’ve even made notations on the timber permit, we went in it and took a look at the area we wanted to cut. We wanted to make sure that there’s minimal impact on the environment, so you and I never, and everybody else can utilize that resource, years, and years, and year down the road. So to answer your question, it, you’re not going to get instantly.

You’re not going to walk in, ask for that permit, and two minutes later walk out with that permit but you would get that permit.” [ 11 ] White’s cross-examination also illustrated the importance of location of the timber for individuals such as Charles Beer in that unless the location is accessible harvesting is very difficult, if not impossible, for individuals with limited resources. POSITION OF THE PARTIES: DEFENCE [ 12 ] Charles Beer’s testimony revealed that the land where he cut was land that from 1969 -1981 he leased from the government.

At one point he attempted to purchase the land but as result of a change in government policy his request to buy the land was denied. Although no dates were specified, it is clear that since 1981 Charles Beer utilized this land to harvest small amounts of timber for his own use. He testified that on three occasions when he requested permission from Manitoba Conservation to cut logs permission was denied on the basis that the timber had been allocated. Charles Beer believed other individuals had been allowed to cut timber on that property.

He testified that his attempts to assert his rights as a member of the Western Manitoba Métis community were ignored by Manitoba Conservation in the years prior to 2009. Offers to pay for the timber were denied. Charles Beer’s evidence spoke to years of frustration on the part of the Métis of Western Manitoba in their attempts to have their rights acknowledged let alone addressed. [ 13 ] Charles Beer testified that the white spruce he cut was to be used to build a house and a garage as his current premises that date back to the 1940s were “falling down”.

In his testimony he detailed his efforts to secure the timber required to replace his home and garage: “THE ACCUSED: Okay, I think it was in November, 2006, or that could have been 2007, I helped Matt Komishen (phonetic) a

neighbour take green timber out of timber of which he had a permit out of Crown half

section in question. He also pulled out about 10 full length trees which I had cut, which I hauled home, and cut on a sawmill into squares for the house. He told me later that Fred Case had come in and marked his stumps, and would, wondered if Fred had come and talked to me about my logs. I told him no. In the fall of 2007, I cut about approximately 86 trees. I was starting to get timber together to build a square log house and a garage. My existing house and garage are falling down.

I have some pictures of it here if you care to have them, my house and garage… THE ACCUSED: This kind of just show you the mould and conditions on the inside, and the way the roof is here, Your Honour, and the house has been there for, since early 40’s, and one is the garage. It’s kind of, the foundation is gone and it’s tipping to the, to the one side… THE ACCUSED: These log were, these logs were fallen in November, and hauled home in December 2007, and January 2008, and were sawed into six inch squares, eight inch squares to be used in my house. I was not targeting white spruce.

I just needed a supply that was close enough as it, close enough as it would have been too much for my resources to haul them from further away. Also, I was not trying to choose white spruce. If I had my preference, I would, for my house I would choose, first tamarack, then birch, then black spruce, then white spruce. I did not take, I did take some black spruce which was in this wood that the, it was in this pile of wood that the, they had seized from. There was some black spruce logs in there, Your Honour.

Yeah, I have thing here that I, after the first year after I harvested the 86 trees, I sawed it, and I figured out, I got what volume of wood I could get out of there, and I measured it all up, and after that I went back to harvest the next year cause I figured I needed about another 100 trees to finish my project there.” [ 14 ] The fact that Charles Beer was not only interested in white spruce but could have used other less valuable species is significant in that his needs may not have been particularly difficult to accommodate. [ 15 ] He testified as to the following exchange occurring on December 29, 2009 with the neighbor who had his sleigh ride business disrupted by Charles Beer’s activities: “THE ACCUSED: I figured that I still needed approximately 100 logs to get enough to finish my house and garage.

November 2009, my son Calib (phonetic) and I went out and cut trees from about 10 o’clock until 2 o’clock on three different days. I never counted the logs but guessed I had at least 80 to 90 trees. Actually when I cut them the year before, that’s about the time we spent cutting them. I guess I taken into consideration I bought a new saw, and, but those logs will all be used, Your Honour. I left the logs there about a month to dry with the limbs on so they would, so they would partially dry. This keeps them straight, and makes them lighter to haul.

On December 29 th , 2009, I and my four boys went out to start cutting the branches off, measuring and cutting the trees into lengths I would need, the lengths I would need. Three of my boys went out with the car and I came with the tractor and bale wagon to haul them out. When I arrived, the boys were at the edge of the bush and said there was someone in there giving sleigh rides. I told them to just go and start limbing the trees. I went and approached John Stadnyk, and he was complaining I had his blocked his trails, and asked if I had a permit. I say no.

I’m Aboriginal, I have a constituently protected right to harvest wood. He said, why should you have more rights than I have. I told him it was my customs, cultures, and traditions that I was expressing, and everyone has a right to do that. I said also that had been harvesting in this bush since 1970.

I told him I did not know he was giving trails rides, and that I blocked so no one would go into my harvested area, and if he would have called me, I would have come and cleared them for him.” [ 16 ] Charles Beer testified that once he was charged he spoke to counsel for Manitoba Conservation and was advised of the availability of a free permit.

As previously referenced he applied for that permit immediately but after a wait of three months his application was denied by Manitoba Conservation. [ 17 ] In cross-examination it becomes clear that Charles Beer having been denied permission to cut on the land in question on three previous occasions decided to harvest sufficient timber to build his house and garage without seeking a permit. Charles Beer believes that as a member of Métis community of Western Manitoba until the Manitoba government consults with the Métis he has a right to cut timber for his domestic use without a permit.

He did however stress that when he cuts timber conservation is always a factor in where and how he cuts timber.

ANALYSIS [18] Goodon (supra) at paragraphs 6 – 11 provides a concise

summary of the relevant legal principles to be considered in cases ofthis sort: “The Constitution Act, 1982 in s. 35 provides: s. 35(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. s. 35(2) In this Act "Aboriginal peoples of Canada" includes the Indian, Inuit and Métis people of Canada.” The fact that Métis hunting rights are affirmed and protected under this

section of our Constitution was confirmed by the Supreme Courtof Canada in R v. Powley 2003 SCC 43 , [2003] 2 S.C.R. 207. The decision clearly determined, however, that a Métis huntingright only exists in circumstances where that individual is a member of an identifiable Métis community that has been continual andstable at a site that can be specifically identified. In addition, as this is a communal right rather than an individual right, the practicewhich is to be protected must be a practice important to that community not only today but prior to European control of that community.

Certain principles have been established by the Court in analyzing Aboriginal rights and, in particular, the effect of s. 35(1) of theConstitution Act. These principles recognize the purpose of constitutionally recognized Aboriginal rights as enunciated in R v. Van derPeet (SCC), [1996] 2 S.C.R. 507 at paragraph 31: "What s. 35(1) does is provide the constitutional framework through which the fact that Aboriginals lived on the land in distinctivesocieties, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.

Thesubstantive rights which fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affectedby s. 35(1) must be directed towards the reconciliation of the pre-existence of Aboriginal societies within the sovereignty of the Crown." Our Constitution, in s. 35 recognizes the existence of the unique Métis culture and practices that existed prior the control by Europeansettlers and governments and ensures, as much as reasonably possible, that the Métis be allowed to preserve their culture and carry ontheir practices without unreasonable government interference.

Therefore, in interpreting s. 35(1) the Supreme Court in R v. Sparrow (SCC), [1990] 1 S.C.R. 1075 at paragraph 56, itis suggested that it be done in a "purposive way" with a "generous, liberal

interpretation of the words in the constitutional provision". Theprovisions must be interpreted and applied in a manner that recognizes and preserves the interests that are being protected. This wasdescribed by MacLachin, J. (as she then was) in R v. Van der Peet (supra) as the right to use the land and adjacent waters as the peoplehad traditionally done for its subsistence. Any doubt about the

interpretation or application of any provisions whether they be in statutesor treaties, should be resolved in favour of the Aboriginal right being claimed. It is equally clear that any legislation which significantly impairs a Métis person from exercising a right granted under s. 35 will bedeemed to be an infringement and, absent reasonable justification, is of no force and effect against that individual. In R v.

Adams (SCC), [1996] 3 S.C.R. 101 at paragraph 54, Chief Justice Lamer on behalf of the Court stated: "In light of the Crown's unique fiduciary obligations toward Aboriginal peoples, Parliament may not simply adopt an unstructureddiscretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence ofsome explicit guidance.

If a statute confers an administrative discretion which may carry significant consequences for the exercise of anAboriginal right, the statute or its delegate regulation must outline specific criteria for the granting of discretion which seeks toaccommodate the existence of the Aboriginal rights." [19] Goodon (supra) established that hunting and harvesting food was integral to Métis culture in Western Manitoba. The Crowndoes not dispute that the harvesting of timber is an aspect of Métis culture and rights in Western Manitoba.

Nor can there be any disputethat the Métis are entitled to harvest wood to be used in the construction of a modern dwelling: R v. Sappier; R v. Grey; at Para. 25, 26and 48. “25 The word “domestic” qualifies the uses to which the harvested timber can be put. The right so characterized has nocommercial dimension. The harvested wood cannot be sold, traded or bartered to produce assets or raise money. This is so even if theobject of such trade or barter is to finance the building of a dwelling.

In other words, although the right would permit the harvesting oftimber to be used in the construction of a dwelling, it is not the case that a right holder can sell the wood in order to raise money tofinance the purchase or construction of a dwelling, or any of its components.

26 The right to harvest wood for domestic uses is a communal one.

Section 35 recognizes and affirms existing Aboriginal and treaty rights in order to assist in ensuring the continued existence of these particular Aboriginal societies. The exercise of the Aboriginal right to harvest wood for domestic uses must be tied to this purpose. The right to harvest (which is distinct from the right to make personal use of the harvested product even though they are related) is not one to be exercised by any member of the Aboriginal community independently of the Aboriginal society it is meant to preserve.

It is a right that assists the society in maintaining its distinctive character. 48 Although the nature of the practice which founds the Aboriginal right claim must be considered in the context of the pre- contact distinctive culture of the particular Aboriginal community, the nature of the right must be determined in light of present day circumstances. As McLachlin C.J. explained in R. v.

Marshall , [2005] 2 S.C.R. 220 , 2005 SCC 43 , at para. 25 , “[l]ogical evolution means the same sort of activity, carried on in the modern economy by modern means.” It is the practice, along with its associated uses, which must be allowed to evolve. The right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling.

Any other conclusion would freeze the right in its pre-contact form.” (Emphasis added) [ 20 ] The Crown submits that the manner in which Charles Beer harvested the timber was inconsistent with his obligations as a Métis harvester particularly with respect to conservation and the communal aspects of the right. Firstly, the Crown asserts that “the volume and manner of Mr. Beer’s harvest cannot reasonably be described as being domestic”.

The Crown argues that the quantity of trees harvested: 145 cubic metres enough timber to construct a 3000 square foot home was so large that it cannot be described as being domestic in nature. I disagree. Charles Beer was seeking to replace his house and shed which were over 50 years old. The accused needed to obtain sufficient wood to be in a position to complete his home and shed. Given the possibility of warping, rot, and other spoilage I find the volume of Charles Beer’s harvest was reasonable.

In fact, his harvest over 3 years was less than half the cumulative allotment provided for in the Manitoba Conservation 2010 policy which allows an annual harvest of up to 100 cubic metres. [ 21 ] To the same effect the Crown argues that “if every Aboriginal harvester were entitled to the large quantity of timber Mr.

Beer cut, there would be serious challenges to the sustainability and availability of the resource to benefit future generations.” Perhaps, but the evidence in the form of the permits issued to Métis harvesters from 2007-2010 suggests that Métis harvesters were not seeking to cut anywhere near the 100 cubic metre limit. I would suggest the reason for this is that cutting the trees is only the beginning: once they are cut the trees must be trimmed, moved, cut into usable lengths and stored for a number of years.

This is a highly labour intensive and expensive process even if you are not paying fees to the government. Charles Beer’s reconstruction of his home and shed is for a person of modest means a once in a generation event not something that the average person is going to be doing on a continual basis.

Viewed in this context I do not find that the quantity of wood harvested was for anything other than a domestic purpose and further that the harvest was consistent with the communal nature of the right. [ 22 ] The Crown asserts that the manner in which Charles Beer harvested was beyond the parameters of an Aboriginal right. Specifically, the Crown maintains that the manner of cutting which left large stumps and piles of brush impaired regeneration of the forest. There is no question that conservation is an essential aspect of the exercise of Aboriginal rights and that steps must be taken to insure regeneration.

However, in this case, Charles Beer was not allowed to complete the cutting of the wood and any clean up he might have undertaken. So, it is impossible to determine whether or not the final result would have resulted in what the Crown described as the “unprofessional nature of the harvesting”. I should add that I do not accept the position put forward by Charles Beer in his evidence that it was not his responsibility as a Métis harvester to ensure that reforestation was possible.

Reforestation is the responsibility of whoever undertakes to cut significant amounts of green timber and that would include Métis harvesters. [ 23 ] An important issue to be determined is whether or not the permit scheme as it existed prior to 2010 infringed Charles Beer’s right to harvest timber for domestic use. What amounts to an infringement is set out in R. v. Sparrow [1990] 1 R.C.S. at: “Section 35(1) suggests that while regulation affecting Aboriginal rights is not precluded, such regulation must be enacted according to a valid objective.

Our history has shown, unfortunately all too well, that Canada’s Aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of Aboriginal rights and interests. By giving Aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodies in legislation to the extent that Aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification.

The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s Aboriginal peoples. The extent of legislative or regulatory impact on an existing Aboriginal right may be scrutinized so as to ensure recognition and affirmation. (Emphasis added) The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power.

While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some

negative effect on any Aboriginal right protected under s. 35(1). In these reasons, we will outline the appropriate analysis under s. 35(1) in the context of a regulation made pursuant to the Fisheries Act. We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of theconstitutional provision, and especially in light of the complexities of Aboriginal history, society and rights, the contours of a justificatorystandard must be defined in the specific factual context of each case.

To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certainquestions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does theregulation deny to the holders of the right their preferred means of exercising the right?

The onus of proving a prima facie infringementlies on the individual or group challenging the legislation.” [24] At the time Charles Beer was cutting timber for his house, late December 2009, the Manitoba Conservation policy dealing withMétis harvesters had not come into effect. The policy was not officially adopted until January 2010.

While the evidence demonstratesthat the practice in Western Manitoba since 2008 had been to grant permits to Métis harvesters free of charge in my view that the fact thepermits were free does not necessarily mean that the permit scheme did not infringe the rights of Métis harvesters. As previouslyindicated the permit regulates the harvest in the following manner:

(1) The location where the timber may be harvested.

(2) Cleanup required after harvesting.

(3) The volume of species of trees to be harvested. No individual is permitted to harvest in excess of 100 cubic metres per year.

(4) Fees are charged with respect to the amount of timber that is harvested. [25] The restrictions on the volume, species and location of the wood harvested are significant. Indeed for Charles Beeraccessibility of the timber is a crucial aspect of the harvest. Unless the timber is located in close proximity to roads a short distance fromhis residence harvesting will be prohibitively expensive or even physically impossible given his minimal resources. [26] Furthermore, on the date of Charles Beer’s apprehension official Manitoba Conservation policy did not make accommodationfor the Métis harvester.

While an informal practice had been adopted whereby certain individuals would receive free permits providedthey could prove Métis ancestry or were on a list of Métis harvesters there was still no recognition of the priority of Métis rights. [27] A further difficulty relates to the implementation of the Powley (supra) and Goodon (supra) decisions. Powley (supra) adecision of the Supreme Court of Canada was pronounced in 2003. That decision confirmed that Métis rights were protected by s. 35 ofthe Constitution.

I must caution myself that I have only heard evidence of the interaction between the Métis of Western Manitoba andthe Government of Manitoba. That being said, given the rich history of the Métis in Manitoba it is almost inconceivable that theManitoba Government did not believe that identifiable Métis communities existed in Manitoba. Such communities would be entitled toAboriginal rights with respect to natural resources. The Supreme Court decision in Sappier (supra) released in late 2006 clearly states thattimber harvesting was an Aboriginal right.

At this point, I believe, the Manitoba Government was obliged to develop policies thataccommodated Métis rights with respect to the harvesting of timber.

While it was not until January 2009 that the Goodon (supra)decision confirmed the existence of an identifiable Métis community in Western Manitoba the government had already had a number ofyears to review and implement policies relating to the Manitoba Métis. [28] Accordingly, even if I were to conclude that Charles Beer was aware of the availability of “free permits” when he cut in 2009(something he denied) it is my view that the permit scheme with its restrictions on volume and location of harvesting coupled with thelack of priority for Métis harvesters was a prima facie infringement of Charles Beer’s Métis rights.

DUTY TO CONSULT [29] The duty to consult is based on the concept of the honour of the Crown as described by the Supreme Court of Canada in HaidaNation [2004] R.C.S. at paragraphs 16 -17: “16 The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour ofthe Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456.

It is not a mereincantation, but rather a core precept that finds its application in concrete practices.

17 The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.

Nothing less is required if we are to achieve “the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown”: Delgamuukw, supra , at para. 186, quoting Van der Peet , supra , at para. 31 .” [ 30 ] In his book “The Duty to Consult” (Purich Publishing 2009) Dwight G.

Newman outlines the fundamental components of the duty to consult: “1) the duty to consult arises prior to proof of an Aboriginal rights to title claim or in the context of uncertain effects on a treaty right; 2) the duty to consult is triggered relatively easily, based on a minimal level of knowledge on the part of the Crown concerning a possible claim with which government action potentially interferes; 3) the strength or scope of the duty to consult in particular circumstances lies along a spectrum of possibilities, with a richer consultation requirement arising from a stronger prima facie Aboriginal right or treaty right; 4) within this spectrum, the duty ranges from a minimal notice requirement to a duty to carry out some degree of accommodation of the Aboriginal interests, but it does not include an Aboriginal veto power over any particular decision; and 5) failure to meet a duty to consult can lead to a range of remedies, from an injunction against a particular government action altogether (or, in some instance, damages) but more commonly an order to carry out the consultation prior to proceeding.” [ 31 ] As previously stated, I find that the restrictions imposed on Métis harvesting in terms of location and volume constituted a prima facie interference in the exercise of their Aboriginal rights.

Accordingly, applying the principles outlined by the Supreme Court of Canada in Haida Nation (supra) and by Dwight Newman I find that i t was incumbent on the Manitoba Government to consult with the Manitoba Métis as they developed policies that recognized the rights of the Métis with respect to the harvesting of timber. [ 32 ] The evidence establishes that since R. v. Powley (supra) (establishing Métis rights to harvest) Charles Beer and others Métis leaders in Western Manitoba had been writing the Manitoba Government seeking a dialogue with respect to Métis rights.

Charles Beer was and continues to be a leader of the Métis Rights Coalition a Western Manitoba organization which as its name would suggest is dedicated to issues relating to Métis rights. Prior to being charged, Charles Beer who is not a lawyer, acted as “counsel” to a number of Métis harvesters charged with alleged violations of Provincial legislation relating to the regulation of natural resources e.g. fish and wildlife.

The point being that Charles Beer and the Métis Rights Coalition were well known to senior officials within Manitoba Conservation yet Manitoba Conservation even while they developed their revised policy dealing with Métis timber harvest did not consult with the Métis Rights Coalition or any other Métis organization or individual.

To be clear, it is an admitted fact in this case that no consultation took place. [ 33 ] Manitoba Conservation’s failure to consult and inform is illustrated by the fact that Charles Beer, a leader in the Western Manitoba Métis community, did not become aware of the terms of the Manitoba Conservation policy issued in January 2010 until it was provided to him as part of the disclosure package for his trial. In addition, it was only during the course of these proceedings that he first saw a list of individuals in Western Manitoba utilized by Manitoba Conservation to identify people of Métis ancestry.

Charles Beer described this as the “magic list”: if your name was on it, your rights as a Métis harvester were acknowledged, if not you were charged. In the result, a number of Métis harvesters were charged only to have those charges stayed when Manitoba Conservation became aware of the status of these individuals. In my opinion, this situation illustrates singularly ineffective communication between a government agency and the Métis. [ 34 ] Nevertheless, I believe it is important to comment on what has taken place since December 2009.

As previously indicated within a month or so of Charles Beer’s being charged a new policy was implemented. That policy acknowledged Court rulings in Sappier and Grey; (supra) and Goodon (supra). The policy dealt with how to manage Aboriginal rights within the context of the permit scheme. The salient features of that policy include: “ Objective : This policy is intended to maintain the Crown’s obligation to manage provincial timber resources while facilitating Aboriginal and

Treaty rights holders access to timber for domestic use at no charge. This relationship will continue to evolve as the rights of Aboriginal people are identified in treaties or as defined by law. Consistent application of this policy across the province will also ensure equitable treatment of all Aboriginal people who wish to obtain Crown timber for their own use. Policy Application : This policy applies to all members of a First Nation Community and Métis persons that hold a Harvester Identification Card and are resident in a recognized Métis community zone.

Approved domestic uses for Crown timber include fuel wood, docks, fences, furniture, homes and shelters required for expeditionary hunting/fishing/gathering. Timber cut under an Own-Use Crown Timber Permit is NOT allowed to be sold, traded or used for commercial purposes at any time. Volume of Crown Timber Available : Per the existing regulation 227/88R 43(2), Own-use Crown Timber Permits are limited to 100 m 3 per household per year.

Locations for Domestic Harvesting : The location for harvesting Crown Timber for own-use can be requested by the permittee, or if no area is preferred, it can be designated by the issuing office. Generally, the location for harvesting Crown wood for own-use shall be granted as requested by the permittee, as long as the area is within the traditional use area of the Aboriginal Community. An Aboriginal right is a constitutional right and access to Crown timber for domestic purposes generally supersedes other uses of the resource.

Consideration will also be give to the sustainability of the forest in a particular area and any applicable socio-economic impacts. If an issuing District has a resource conservation concern for an area selected for harvest then they should take a timber permit application from the individual and forward it to the Regional Forester for review with the IRMT. Despite the nature of Aboriginal harvesting right, in order to ensure that conservation and important resource management requirements are met, regional IRMTs may direct Aboriginal domestic harvesters to alternate suitable locations.

Factors that the IRMT may consider to determine the suitability of an area for own-use wood harvest would be: (

a) Protection of prior investment in plantations, experimental plots and immature wood; (

b) Habitat and riparian zone protection; (

c) Conflicts with conservation uses including sensitive areas, ecological reserves, protected areas, or other conflicts with Crown uses of the land; (

d) Effects of creating new access or need to provide seasonal protection for an area; (

e) Wildfire hazard; (

f) Safety considerations.” [ 35 ] The important features of this policy are:

(1) There is no charge to aboriginal harvesters.

(2) The amount of timber per year is 100 cubic metres per household per year for domestic use. (I find in normal circumstances this is a reasonable limit on consumption. The policy also allows for larger harvests if community projects are being considered.)

(3) Priority is given to aboriginal harvesters to harvest for domestic purposes.

(4) Location will be as requested by the applicant subject to conservation and other issues.

(5) Small amounts of forest products for hunting, fishing, spiritual and ceremonial purposes can be taken without a permit. [ 36 ] In my opinion this policy strikes a reasonable balance between the priority rights of Métis harvesters while acknowledging conservation and broader societal goals.

[37] I note as well that recently Manitoba Conservation has been communicating with the Métis Rights Coalition with respect toissues relating to policy and practices that impact on Métis right to harvest. For example, in 2010 when Manitoba Conservation decidedto limit fisheries harvests in parts of Western Manitoba letters were sent to the Métis Rights Coalition advising them of the steps thatwere going to be taken and the rationale for these measures. Similar correspondence occurred with respect to restrictions on moosehunting in 2010 and 2011.

This illustrates a positive change in practice which hopefully signifies a new era of improved communicationand consultation between the Manitoba Government and the Métis of Western Manitoba. [38] One other issue is of concern. While I accept Charles Beer’s evidence that he was not aware of the fact he could receive a“free permit” in December 2009 pursuant to the informal policy of the Roblin Conservation office I have no doubt he was aware of theneed for a permit before harvesting. He chose not to apply for such a permit.

While I understand his frustration with ManitobaConservation’s refusal to acknowledge his rights as a Métis harvester his activity did cause some ecological damage in terms of thevolume, species of tree harvested and the impact on an ecologically sensitive area. [39] In effect Charles Beer’s cutting without a permit amounts to a collateral attack on the regulatory scheme utilized by ManitobaConservation to regulate the timber harvest in Manitoba. In R. v.

Lefthand 2007 ABCA 206 the Alberta Court of Appeal outlines thenature of a collateral attack and the dangers it entails: “19 As is common in cases where aboriginal hunting rights are concerned, this case involved a collateral attack on the validity ofthe regulations: Wilson v. the Queen, (SCC), [1983] 2 S.C.R. 594, at pg. 599. Instead of mounting a direct challenge tothe validity of the fishing regulations, Lefthand and Eagle Child elected to disobey the regulations, and to fish as they chose.

When theywere charged, they raised as a defence that the regulations were invalid, and presumably void, so that they were entitled to an acquittal. Itmust be acknowledged that collateral attack of game regulations by the assertion of aboriginal rights has to date been accepted by thecourts. 20 Allowing collateral attack creates a most unsatisfactory situation, especially where conservation of threatened species isconcerned. If a regulation is attacked directly, the regulators will know that the regime is challenged.

They can examine the challenge,and perhaps replace the regime with an acceptable one, or consult with interested parties and modify the approach taken. In the interim,they can take steps to ensure that the fish stock in not damaged while the legal process continues. 22 If collateral attack is allowed regulators have no opportunity to react to any legitimate complaints about the regulatory regime.The aboriginal community that owns the right, and that may indeed support the regulations, has no opportunity to provide input.

In theLefthand appeal the bait ban had been in place since 1987, the regulations were confirmed in 1998, but the offences were not the subjectof charges until 2001. How many fish were taken in the intervening fourteen years by those who took it upon themselves to conclude thatthe regulations did not strike the right balance between conservation and aboriginal rights?

Collateral attack has no reciprocity ofremedies, because if the accused is wrong, and the regulation he or she ignored is a valid conservation measure, he or she may be finedbut there is no effective remedy to undo the damage that may have been done to the resource in the meantime. A direct challenge to theregulation allows the court to structure a remedy that is just for all concerned.” Albeit on a smaller scale the concerns expressed by the Court in Lefthand arise in this case. Charles Beer harvested white spruce in anecologically sensitive area where the reforestation of the trees taken will take decades.

Other users of this area are impacted by hisactivities. Had he challenged the legislation or even sought a permit instead of acting unilaterally it is possible, even probable, that heand Manitoba Conservation could have found a suitable supply of timber for his project. This is particularly so given that he did notneed to cut white spruce but could have cut other species. CONCLUSION [40] There is no question that Charles Beer knowingly violated s. 37 of the Forest Act. The question to be determined is whetherthe Court should intervene on the basis that his rights as an aboriginal harvester had been violated.

As can be seen by the previouspassages I am confronted by at least four conflicting factors in reaching a decision. Those factors can be summarized in the followingmanner: 1. The failure of the Manitoba Government and Manitoba Conservation to consult with the Métis of Western Manitoba when they wereobliged to do so. 2. The fact that at the time of the cutting in December 2009 the formal policy of Manitoba Conservation did not give priority rights tothe Métis of Western Manitoba as required by Powley (supra); Sappier and Grey (supra); and Goodon (supra).

3. The policy adopted by Manitoba Conservation in January 2010 which reasonably accommodates Métis harvesting rights. 4. Charles Beer deliberately ignored the existing regulatory scheme and his defence consisted of a collateral attack on the legislation. [ 41 ] If I only considered the official policy in December 2009 and the government’s treatment of Métis concerns, I might very well be inclined to declare the permit scheme to be of no force and effect with respect to these charges. However, to do so might suggest that Métis harvesters are not currently required to utilize the permit scheme.

Given the changes that have occurred I believe the current scheme is valid so to strike down Charles Beer’s charges sends a confusing message. In addition, I am struggling to determine the weight to be given to the fact Charles Beer deliberately ignored the regulatory scheme and is utilizing a collateral attack on the legislation in order to avoid legal responsibility. [ 42 ] Having made these conflicting findings, I believe the appropriate step is to reconvene and hear argument from the parties as to the appropriate remedies.

The spectrum of remedies at least on a preliminary basis would include declaring the legislation to be of no force and effect or alternatively a finding of guilt and consideration of the appropriate sentence in view of the conduct of the Manitoba Government and Charles Beer up until January 2010.

An additional matter to be dealt with is the disposition of the approximately 145 cubic metres of white spruce logs seized from Charles Beer and currently under the control of Manitoba Conservation. [ 43 ] I will therefore be asking the trial coordinator to contact the parties and arrange for a continuation date to deal with these issues. _____________________ Slough, P.J.

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