The adjudication of historical evidence: a comment and an elaboration on a proposal by Justice LeBel.

• Author: Imai, Shin
• Position: Canada

1. Introduction

   Both R. v. Marshall (1) and R. v. Bernard (2) began as relatively minor prosecutions for breaches of regulatory statutes. In this, they were not remarkable as most of the leading cases in this field began from such prosecutions. In R. v. Sparrow (3) the fishing net was too long; in R. v. Badger (4) the First Nation hunters were on private land; in R. v. Van der Peet (5) ten salmon were sold without a licence; in R. v. Marshall (fishing) (6) $700 of eels were sold without a licence; in R. v. Powley (7) a Metis person shot a moose for food without a licence. It is rare, outside of the Aboriginal context, for offences such as these to be considered by the Supreme Court of Canada. Convictions usually result in relatively light non-penal penalties and most cases are settled through plea bargains before they go to trial.

   Summary prosecutions dealing with Aboriginal and treaty rights are unlike other summary prosecutions because a finding of guilt or innocence requires consideration of larger issues relating to territory, priority for the use of resources and the legal framework for exercising those rights. It is for these reasons that Justice LeBel at the Supreme Court of Canada in R. v. Marshall; R. v. Bernard (8) and Justice Robertson at the New Brunswick Court of Appeal in R. v. Bernard (9) expressed concerns about the appropriateness of adjudicating issues related to Aboriginal and treaty rights in summary conviction proceedings. The two judges pointed out that such proceedings are designed to determine the guilt or innocence of an accused individual; they are not designed to address Aboriginal title to territory that may encompass an entire province nor to determine the ramifications for decisions about resource allocation among individuals and corporations who are not parties to the proceedings.

   The complexity of accommodating Aboriginal and treaty rights in a contemporary context where such rights had been ignored for so long leads courts to suggest that negotiations are a more appropriate way forward than litigation. In Bernard, Justice Daigle of the New Brunswick Court of Appeal observed:

   In my view, the larger question looming behind the issues of the reconciliation of aboriginal title and the interests of other title holders, including issues of extinguishment of aboriginal title by the granting of fee simple titles or entitlement to compensation, should not be addressed in a piecemeal fashion before the courts. The fundamental principle that must guide the resolution of these issues is that the rights asserted must be considered in relation to the competing rights and interests of others. As suggested by several courts in Canada, only subsequent negotiations bringing together all the parties who have a stake in the resolution of these complex issues can be truly fruitful and lead to just settlements. (10) In spite of the courts' exhortations to the parties to negotiate, judges often find themselves being asked to determine the existence and scope of Aboriginal or treaty rights. This is because the Crown or the Aboriginal party may not be eager to enter into such negotiations without a Court ruling that establishes the existence of a right, or because the parties have been unable to reach agreement in negotiations. Justice LeBel suggests that if an Aboriginal or treaty rights issue comes to trial in the context of a summary conviction prosecution, the Aboriginal accused should "seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts." (11) Justice Robertson, in the New Brunswick Court of Appeal, imposed a stay of the effect of the decision recognizing the treaty right, in order to permit the parties to negotiate a resolution. (12)

   This paper considers the suggestions made by Justice LeBel and Justice Robertson with respect to the suggested procedure. Staying a proceeding or the effect of a decision raises immediate issues related to the status of other similar charges, the allocation of the resource while the matter is winding its ways through the courts, and the funding necessary in order to enable the Aboriginal party to participate in the proceedings. As I argue, current jurisprudence from the Supreme Court of Canada could be developed to address these concerns. Justice LeBel's primary concern, however, is not procedure, but rather that "[t]he question of aboriginal title and access to resources in New Brunswick and Nova Scotia is a complex issue that is of great importance to all the residents and communities of the provinces" in which "all interested parties should have the opportunity to participate in any litigation or negotiations." (13) I argue that to meet the concerns of such "interested parties," (14) there must be a change in the application of the legal test used to determine Aboriginal and treaty rights. In recent cases, courts have been relying on the interpretation of events in the past to determine contemporary allocation of resources. This approach does not do justice either to the reading of history or to the contemporary interests of the parties who will be affected by the decisions. I argue that it is necessary to separate out the exercise of determining the historical bases for Aboriginal and treaty rights from the exercise of determining the nature of contemporary accommodation. I conclude that if this separation occurs, it will open an opportunity to establish a bi-national panel that could develop an approach to history that would incorporate both settler and Aboriginal experiences.

2. An "inadequate and inappropriate" process

   Justice LeBel in the Supreme Court and Justice Robertson in the New Brunswick Court of Appeal raised several issues related to procedure and evidence which, in the words of Justice LeBel, made summary conviction proceedings "inadequate and inappropriate." (15) Both judges felt that the more fulsome pre-trial requirements of civil proceedings would be more appropriate for adjudicating Aboriginal and treaty rights. Criminal trials require disclosure by the Crown but not by the defence. Justice Robertson expressed

   ... great sympathy for the Crown's plea that it is simply unfair to permit the defence of Aboriginal title to be raised in summary conviction proceedings where none of the procedural safeguards employed in the civil sphere is available. For example, there has been no exchange of pleadings and an opportunity to crossexamine witnesses before trial. (16) Both judges also expressed concern about having different levels of proof in a criminal proceeding. In a prosecution, ordinarily the Crown must prove the elements of the offence beyond a reasonable doubt. In the usual course, summary conviction proceedings for breach of a regulatory statute might take half a day or a day. When the accused raise an Aboriginal or treaty rights defence, the process is a little different. Usually, the main elements of the offence are admitted so that the trial is really a different type of proceeding not accounted for in the rules of criminal practice. The accused open their defence by proving the existence of the Aboriginal or treaty right, on the balance of probabilities. They must then show, again on the balance of probabilities, that the legislation under which they were charged infringes the claimed Aboriginal or treaty right. At this point, the burden shifts to the Crown to show that there has been a "clear and plain" intention to extinguish the right.

   The problem of different levels or burdens of proof in the same proceeding is exacerbated by the type of evidence needed to establish the existence of Aboriginal and treaty rights. Rather than the forensic or medical evidence commonly introduced in a summary conviction proceeding, Aboriginal and treaty rights cases may require introduction of evidence from voluminous documents, oral histories, archaeology, anthropology, ethno-history and descriptions of cultural practices. In consequence, trials will require more hearing days spread over a longer period. The Bernard trial in New Brunswick Provincial Court required 29 hearing days spread over two years, with five expert witnesses and 600 documents. In Marshall (logging), there were several interlocutory proceedings; the trial in the Nova Scotia Provincial Court was conducted over eighteen months, with six expert witnesses, 25,000 pages of exhibits and 9,000 pages of transcripts. (17) An application by the Newfoundland government to remove cabins erected by members of the Miawpukek Band on Crown land required 47 days of testimony and generated 150,000 pages of historical material, with seven expert witnesses called by the Crown and five by the respondents, as well as four Mi'kmaq witnesses. (18) The trial in R. v. Powley which established the existence of a Metis Aboriginal right, with three expert witnesses, required eleven days of hearings. (19)

   The concerns expressed by LeBel J. and Robertson J.A. with respect to summary quasi-criminal proceedings have been noted by courts in summary civil proceedings as well. In Ontario (Minister of Municipal Affairs and Housing) v. TransCanada Pipelines Ltd., (20) the Nishnawbe-Aski Nation sought judicial review of a proposal by the Ontario government to extend the boundaries of a northern municipality. The Nishnawbe Aski Nation argued that such an extension would prejudice treaty rights and land claims to the area and that, consequently, they were entitled to be consulted on the decision. They were successful at the Divisional Court (21) but the Ontario Court of Appeal held that it would not enforce consultation until the Aboriginal or treaty rights in question had been established in judicial proceedings. The Court of Appeal declined to send the matter back to the Divisional Court because, in its view, such rights could not be established in proceedings of a summary nature such as judicial review. (22) In another Ontario case, Keewatin v. Ontario...