R. v. Olive Landry and Fabien Huard 2012 NBPC 18, 2012 NBPC 18

R. v. Olive Landry and Fabien Huard 2012 NBPC 18 PROVINCE OF NEW BRUNSWICK Files: 04268911 and 04268811 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - OLIVE LANDRY AND FABIEN HUARD CORRECTED VERSION DECEMBER 13, 2013 Decision on motion by the Honourable Ronald LeBlanc, judge of the Provincial Court at Bathurst, New Brunswick, on November 9, 2012. Plaintiffs: Mrs. Olive Landry and Mr. Fabien Huard Defendant: The Attorney General of New Brunswick Appearances: Mrs. Olive Landry and Mr. Fabien Huard, in person Mrs. Kelly Lamrock, Esq., for the Attorney General [TRANSLATION] 1 .

This is a motion for a stay of proceedings presented by Mrs. Olive Landry and Mr. Fabien Huard, who were charged separately with having illegally fished for trout during the close time of the fishing season, an offence under s. 106 of the Maritimes Provinces Fishery Regulations and s. 78(

a) of the Fisheries Act of Canada. 2 . Mrs. Landry and Mr. Huard do not dispute the fact that they were fishing. They say however that they are Aboriginal persons within the meaning of s. 35 of the Constitution Act, 1982 and therefore were entitled to fish for trout because of their aboriginal rights and because of certain treaties that allow them to fish. 3 . Whether or not they are Aboriginal persons can obviously be decided by the court hearing the trial. Judges of the Provincial Court are often asked to decide these questions in cases of prosecutions for violations of regulations.

Nevertheless, the plaintiffs contend that such questions should be decided, not by the court that must rule on an accused’s criminal conduct, but rather by a court better apt at deciding these controversial issues: the Federal Court of Canada. This is why they are seeking a stay of proceedings at the Provincial Court level – they want the issue decided at the Federal Court level. 4 . To reply to this motion, the court held a voir-dire during which the plaintiffs presented twelve supporting documents as well as

the testimony of Mrs. Landry. I will go over the evidence presented at the voir-dire in a moment. 5. This motion finds its basis in the comments of LeBel, J. who, speaking for the minority, wrote the following at paragraphs 142 to144 of R. v. Marshall, R. v. Bernard, 2005 SCC 43 , [2005] 2 S.C.R. 220, [2005] S.C.J. No. 44: 142 Although many of the aboriginal rights cases that have made their way to this Court began by way of

summary convictionproceedings, it is clear to me that we should re-think the appropriateness of litigating aboriginal treaty, rights and title issues in thecontext of criminal trials. The issues that are determined in the context of these cases have little to do with the criminality of theaccused’s conduct; rather, the claims would properly be the subject of civil actions for declarations. Procedural and evidentiarydifficulties inherent in adjudicating aboriginal claims arise not only out of the rules of evidence, the

interpretation of evidence and theimpact of the relevant evidentiary burdens, but also out of the scope of appellate review of the trial judge’s findings of fact. These claimsmay also impact on the competing rights and interests of a number of parties who may have a right to be heard at all stages of theprocess.

In addition, special difficulties come up when dealing with broad title and treaty rights claims that involve geographic areasextending beyond the specific sites relating to the criminal charges. 143 There is little doubt that the legal issues to be determined in the context of aboriginal rights claims are much larger than thecriminal charge itself and that the criminal process is inadequate and inappropriate for dealing with such claims. I note that in the NewBrunswick Court of Appeal, Robertson J.A. raised a number of concerns to support his view that

summary conviction proceedings arenot conducive to adjudicating fairly on claims of aboriginal title: R. v. Bernard (2003), 262 N.B.R. (2d) 1, 2003 NBCA 55, at paras. 450-60. See also Daigle J.A.’s reasons, at para. 210. 144 The question of aboriginal title and access to resources in New Brunswick and Nova Scotia is a complex issue that is of greatimportance to all the residents and communities of the provinces. The determination of these issues deserves careful consideration, andall interested parties should have the opportunity to participate in any litigation or negotiations. Accordingly, when issues of aboriginaltitle or other aboriginal rights claims arise in the context of

summary conviction proceedings, it may be most beneficial to all concernedto seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts. Once the aboriginal rightsclaim to the area in question is settled, the Crown could decide whether or not to proceed with the criminal charges. 6. The words of Robertson, J.A. of the Court of Appeal of New Brunswick in R. v. Bernard (J.) (2003), 2003 NBCA 55 ,262 N.B.R. (2d) 1, at paragraphs 452 and 460, are both significant and instructive: 452 In my view,

summary conviction proceedings are not conducive to adjudicating fairly on claims of aboriginal title. I say thisbecause in truth we are not being asked to adjudicate on the guilt or innocence of Mr. Bernard. We are being asked to grant indirectly thekinds of remedial relief that can only be sought in civil proceedings … 460 Another negative aspect of asserting a claim of aboriginal title, under the guise of asserting a defence to a quasi-criminal charge,is that it raises broader issues.

Once it is acknowledged that the defence of aboriginal title includes both Crown and privately ownedlands, a number of related issues are left unresolved and for which there may be no obvious or ready answer. 7. The plaintiffs are therefore asking the court for an order allowing them to have their claims dealt with in a civil action fordeclarations rather than in the context of a defence to a quasi-criminal charge. The prosecution opposes the motion. The Crown wants toproceed to trial immediately, without delay. 8. What then is the evidence in support of the motion? 9. Mrs.

Olive Landry has been residing in Laplante since 2004. A group of 30 to 32 persons in the area of Laplante, Alcida andMadran, small communities in the northern part of the Province, have formed a council called the Conseil Autochtone de la Côte-Est,commonly referred to as the CACE. The CACE was incorporated on July 5, 2010. Members of the CACE, including Olive Landry andFabien Huard, are all descendants of Joseph Mius, a Mi’kmaq.

Joseph Mius’ brother, François Mius, was a signatory to the 1760-1761Treaty of Peace and Friendship, a treaty between the Mi’kmaq aboriginal people and the British Crown in Nova Scotia, formerlyAcadie. Mrs. Landry states that she can trace her aboriginal descendants [sic] back beyond the date of Confederation.

10. The defendants, who are not represented by counsel in this case, were informed by the court that it would not be useful to presentsupplementary evidence of their native ancestry. The issue of whether or not they are aboriginal persons will be decided at trial, whetherit is before the Provincial Court or before the Federal Court. They were told that the court was interested mainly with evidence orrecords that deal with the questions to be decided at the voir-dire, i.e., should the court suspend the proceedings in Provincial Court?

What are the advantages of proceeding in Federal Court rather than in Provincial Court? 11. The documents filed at the voir-dire show that the CACE members meet about two or three times a month. Mrs. Olive Landry iscouncil secretary. Her husband, Jean-Paul Landry, was president of the council in the past and was her spokesman at the hearing on thevoir-dire. Mrs. Michelle Landry is currently president. 12. On January 17, 2012, Mrs.

Landry filed a Notice of Motion in Provincial Court seeking [translation] “a temporary stay ofproceedings in order for the issue of aboriginal rights to be decided before a civil court”. The hearing was set for March 8, 2012. 13. On February 24, 2012, the members of the CACE filed a Statement of Claim in Federal Court seeking a declaration from thatcourt recognizing the right to shared title of Mi’kmaq land as well as treaty and aboriginal rights, which include the right to fish.

Theyalso sought an order that the Government of Canada accommodate and consult the members of the CACE, and they submit that theFederal Government’s refusal to accommodate them discriminates against the members of the CACE. They also sought an orderproviding for the payment of legal fees and an order compensating them for their expenses in the civil action. They argued that theGovernment of Canada had infringed upon the rights of CACE members to fish for food.

Finally, they alleged that the Department ofFisheries and Oceans, the Department of Indian Affairs and Northern Development and the Department of Natural Resources had refusedto negotiate an agreement with the CACE, in contempt of the rights of the members of the council. 14. On March 26, 2012, the defendant, the Attorney General of Canada, filed an application with the Federal Court to strike out all orpart of the Statement of Claim for failure to comply with the Federal Court Rules and on the ground that the plaintiffs’ Statement ofClaim disclosed no reasonable cause of action.

In the alternative, they sought an order authorizing the defendant to file a defence within30 days of the final decision on the application to strike out the Statement of Claim. 15. On April 19, 2012, the Federal Court gave its decision. Prothonotary Richard Morneau decided to strike out the Statement ofClaim filed on February 24, 2012, but authorized the plaintiffs to file prior to June 19, 2012, an amended Statement of Claim that wouldcomply with the requirements of the rules and correct the defects and omissions highlighted by the defendant in the application and replyrecords. 16.

On May 1, 2012, the members of the CACE filed an Amended Statement of Claim. It contains some 40 pages. It should be notedthat the CACE was not represented by counsel during this entire period. The defendant received the Amended Statement of Claim onMay 1, 2012. 17. On May 14, 2012, the defendant’s solicitor wrote to the prothonotary asking for instructions as to the procedure to follow todispute the Amended Statement of Claim which, in her client’s opinion, did not comply with the Court order. 18.

On May 15, 2012, the prothonotary replied to the solicitor for the Attorney General of Canada informing her that by filing theirAmended Statement of Claim on May 1, the plaintiffs had exhausted all avenues open to them and that if the defendant considered thatthe Amended Statement of Claim did not comply with the Court order, the defendant should serve and file an application record to thiseffect on or before June 14, 2012, seeking the effective remedies. 19.

On June 13, 2012, the defendant, the Attorney General of Canada, filed a document entitled [translation] “Defendant’s/applicant’swritten arguments” in which it contended that the plaintiffs’ Amended Statement of Claim did not disclose a reasonable cause of actionin so far as it related to their claim to aboriginal title and aboriginal and treaty rights. 20. On July 17, 2012, the prothonotary struck out the Amended Statement of Claim. His reasons are instructive.

The Court adoptedthe defendant’s position that the Amended Statement of Claim filed by the CACE did not disclose a reasonable cause of action given thatthe allegations of fact set out in the Amended Statement of Claim, even assuming they could be established, would not meet the test setout in the case law to show that they are aboriginal persons, holders of shared title rights, as well as aboriginal and treaty rights. Thedefendant referred to R. v. Powley, 2003 SCC 43 , [2003] 2 S.C.R. 207 (S.C.C.), and R. v. Hopper, 2008 NBCA 42 (N.B.C.A.).

The prothonotary determined that the factual allegations did not meet two of the three components of the test to determine the plaintiffs’ membership in a contemporary native community: self-identification and community acceptance. Given that the factual background alleged by the plaintiffs did not support a general claim to aboriginal, treaty and title rights, accordingly, it did not support a reasonable cause of action. The contents of the Amended Statement of Claim could not make a case for the remedy sought; therefore, the Amended Statement of Claim was struck out, with no possibility for amendment. 21 .

It should be noted that the plaintiffs mentioned during the voir-dire that even if the Amended Statement of Claim were struck out, the CACE would file a new case. 22 . In my opinion, despite the fact that, as a general rule, it would generally be preferable that proceedings involving aboriginal rights claims be brought before the Federal Court, in this case, the motion for a stay of proceedings must be denied. 23 . The plaintiffs tried to convince the Federal Court on two occasions of the appropriateness of their civil action. Both times, their request was turned down.

The second Statement of Claim was struck out with no possibility of amendment. The reason for striking out the Statement of Claim specifically goes to the heart of what the plaintiffs were seeking, i.e., that they be recognized as aboriginal persons. The Federal Court could not recognize the plaintiffs as aboriginal persons on the facts presented in the Amended Statement of Claim. I cannot imagine how a new Statement of Claim would have a different result. The facts will always be the same and the result, predictable. 24 .

Moreover, I am of the opinion that the Supreme Court of Canada in Marshall and Bernard was not dealing with a situation such as the one in the present case. In Marshall , 35 Mi’kmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. In Bernard , a Mi’kmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill. The logs had been cut on Crown lands in New Brunswick.

In both cases, the accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they had a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. The Supreme Court decided that the commercial logging that formed the basis of the charges against the accused was not the logical evolution of a traditional Mi’kmaq trading activity in 1760-61 and moreover that t he accused did not establish that they hold aboriginal title to the lands they logged. 25 .

It is evident that the courts did not have to decide the issue raised in the case before this court, i.e., whether or not the defendants are Indians. The parameters of inquiry are significantly different in both cases and comments made by Justices LeBel and Robertson do not necessarily apply in the present case. 26 . The court cannot decide beforehand matters brought before it, but I would assume that a decision made with respect to a single member of the CACE could determine the fate of the other members of the CACE.

Although the Provincial Court cannot determine if all of the members of the CACE are aboriginal persons, as the Federal Court might possibly do, the judge can nevertheless decide if Olive Landry and Fabien Huard are aboriginal. Members of the CACE are either Indians within the meaning of s. 35 of the Constitution Act, 1982 or they are not. If the judge of the Provincial Court decides against the defendants, this decision will, in all probability, affect all of its members.

If the judge decides that they are Indians, I would think that this could affect the relations that other members of the group have with the local government. The Provincial Court decision would obviously not have the scope of a Federal Court decision, nevertheless, the primary decision, i.e., whether or not the defendants are Indians, could have an impact on future deliberations. 27 . In any event, the proceedings underway in Provincial Court do not prevent the members of the CACE from pursuing proceedings in civil court.

The Court must take into consideration the reality of the situation: a civil action may take much longer to process than proceedings before the Provincial Court. It is altogether possible that the other members of the CACE are also contemplating taking advantage of the privileges granted to Indians, such as fishing when the fishing season is closed. A stay of proceedings in Provincial Court could result in continued or repeated offences. There is some degree of urgency here. Diligent resolution of this dispute is desirable. 28 .

Having considered all of the facts that come into play here, I am of the opinion that the determination of whether or not Mrs. Olive Landry and Mr. Fabien Huard are Indians should be made in Provincial Court. For this reason, the motion for a stay of proceedings in this matter is denied. Dated at Bathurst on November 9, 2012.

Ronald LeBlanc, Judge of the Provincial Court