'Unfair and oppressive': Court scolds province for interfering with treaty right

New Brunswick's top court has blasted the provincial government for circumventing an Indigenous person's treaty right to hunt and sell meat by preventing non-aboriginal people from buying it.

In a recent ruling, the New Brunswick Court of Appeal says the province set out in 2003 to make it impossible for Indigenous people to exercise rights they'd won under the landmark Marshall ruling.

In 2012, prosecutors charged Michael Reynolds, a Maliseet member of the Woodstock First Nation, under the Fish and Wildlife Act after he killed and sold moose to a non-Indigenous person.

But Reynolds wasn't charged for hunting and selling: he was charged as an accessory to the violation by the non-Indigenous buyer, who didn't have a permit to trade in moose meat.

The New Brunswick Court of Appeal says that was an attempt to "carve around" Reynolds's treaty rights and was an abuse of process.

The Aug. 31 ruling, by Justice Raymond French, upheld two lower-court decisions to halt the prosecution.

The Crown was "attempting to do indirectly what it could not do directly," French wrote, which he called "inconsistent with the principles respecting the honour of the Crown" laid out in the 1999 Marshall decision by the Supreme Court of Canada.

That ruling said Indigenous people have a treaty right to earn a "moderate livelihood" from harvesting and selling wild meat and fish — something the province was trying to block through policy, French said.

"It is difficult to view the Policy as intending to do anything other than end the Aboriginal trade in moose to non-Aboriginals," says his ruling.

Reynolds's lawyer, Maria Henheffer, said through an assistant that she would not comment on the decision before the province decides whether to appeal it to the Supreme Court of Canada.

The Public Prosecutions office hasn't made that decision yet.

"We are evaluating whether or not this should be appealed," Luc Labonté, the assistant deputy attorney-general, said in an email. "No formal decision has been made."

Charged as accessory

According to the ruling, Reynolds killed a moose in 2012 and traded the meat to Addison Knox, a non-Indigenous person, for his Dodge Durango.

Knox was charged because he didn't have a provincial transfer permit to trade or possess moose meat, and Reynolds was charged as an accessory.

At first, the Crown argued that Reynolds's treaty rights didn't extend to Knox and so they didn't protect him from being charged as an accessory to Knox's offence.

Just before Reynolds's trial date, he learned that there would have been no way for Knox to get a transfer permit because of a policy change by the province in 2003.

Province ended permits

The province stopped issuing "special transfer permits" that year. They were created after the Marshall decision as a temporary measure so the province could monitor the sale of wild meat harvested by Indigenous people to non-Indigenous people.

The province claimed the decision to stop issuing the permits, which was not publicized at the time, was because too many moose were being harvested.

But French's ruling points out the province kept issuing transfer permits to non-Indigenous people with moose-hunting licences. The only people denied permits after the policy change were non-Indigenous people buying moose meat from Indigenous hunters.

That left "no doubt that the intention of the Policy was to end, albeit temporarily, the Aboriginal trade of moose to non-Aboriginals," French wrote. He called that "an adverse and unreasonable interference with the treaty right."

No new system

The ending of the permits was supposed to be temporary but no new system had been put in place at the time Reynolds was charged.

The appeal ruling doesn't strike down the permitting system or order the reinstatement of special transfer permits for non-Indigenous buyers of Indigenous-harvested meat, and it's not clear how the province will respond.

"The Department of Energy and Resource Development is currently reviewing the decision as it applies to the Fish and Wildlife Act," a spokesperson said in an email.

Province claimed chiefs consented

The ruling says Crown lawyers changed their legal arguments in the case when they appealed the provincial court decision to the Court of Queen's Bench.

In provincial court, they had argued that treaty rights didn't apply to Reynolds because he was being charged as an accessory.

But in Court of Queen's Bench, they argued First Nations chiefs had agreed to limit the treaty rights in the Marshall ruling when they consented to the province ending the special transfer permits in 2003.

French rejected that logic, writing the Crown presented no legal evidence "for the proposition the Chiefs could alter communal treaty rights and bind their bands."

"The Crown's assertions the Chiefs had the authority to alter treaty rights in the circumstances are not persuasive."

That means the Crown could not have used that argument if Reynolds had gone to trial.

'Unfair and oppressive'

French didn't accept the initial argument either. He said the Crown hadn't shown that prosecuting Reynolds as an accessory would violate his rights any less than if he'd been prosecuted directly.

Because there were no grounds to put Reynolds on trial, French said, he was upholding the initial stay of proceedings.

"The Crown's prosecution of Mr. Reynolds sought to carefully carve around the treaty rights described in Marshall," he concluded.

"The totality of the circumstances inescapably leads to the conclusion that the continued prosecution of the charges against Mr. Reynolds is unfair and oppressive," he added.

"The burden of continuing to defend these charges is disproportionate to the interest of having these charges determined at trial. The prosecution of Mr. Reynolds in these circumstances amounts to an abuse of process."