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The province has yet to clarify how it will change its practices following a Court of Appeal ruling involving the Indigenous treaty right to hunt and sell meat. (CBC News)
Indigenous sale of moose meat a murky territory, despite court ruling
New Brunswick Court of Appeal said provincial policy circumvented Indigenous treaty rights
R. v. Reynolds (M.P.), (2016) 448 N.B.R.(2d) 399 (CA)
By Jacques Poitras, CBC News Posted: Jan 25, 2018 6:00 AM AT Last Updated: Jan 25, 2018 6:00 AM AT
Indigenous hunters looking to sell moose meat to other New Brunswickers are facing legal uncertainty after a Court of Appeal decision last year.
The top court in New Brunswick labelled a restrictive provincial policy on hunting permits "unfair and oppressive" but did not strike it down or order the province to replace it.
The government calls the ruling "important" and says "potential implications to existing provincial policy and practices are being considered."
But it is refusing to say clearly how such cases are being handled now.
The province decided not to appeal the August 2017 ruling, which said the government was circumventing the Indigenous treaty right to hunt and sell meat by preventing non-aboriginal people from buying it.
The court said the government set out in 2003 to make it impossible for Indigenous people to exercise rights they'd won under the landmark Marshall ruling, by refusing to issue permits for non-Indigenous people to buy their meat.
Dominique Nouvet, a lawyer specializing in Indigenous law, says the ruling is "very significant" and the province needs to clarify how it will change its practices.
"There is a real practical implication to this decision," she said. "I think it's clear from this ruling that the government needs to start re-issuing those permits so Wolastoqey harvesters can exercise their treaty right to sell moose meat."
Abuse of process
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. His legal right to do that was established by the Supreme Court of Canada's 1999 ruling in the case of Donald Marshall, a Membertou First Nation member, who'd been charged in Nova Scotia with catching and selling eels without a licence.
Instead, Reynolds was charged as an accessory to the violation by the non-Indigenous buyer, Addison Knox, who was charged for not having a "special transfer permit" to trade in moose meat.
The province stopped issuing the permits in 2003. The permits had allowed non-Indigenous New Brunswickers to buy meat harvested by Indigenous hunters using their Marshall rights.
The Marshall ruling said Indigenous people have a treaty right to earn a "moderate livelihood" from harvesting and selling wild meat and fish.
Justice Raymond French of the New Brunswick Court of Appeal said in his August 2017 ruling that eliminating the permits was an attempt to "carve around" Reynolds's treaty rights and was an abuse of process.
The Crown was "attempting to do indirectly what it could not do directly," French wrote.
'Adjusted enforcement practices'
Jean Bertin, a spokesperson for the Department of Energy and Resource Development, said conservation officers "have already adjusted enforcement practices" to respect the rights of all New Brunswickers but he wouldn't say what that means.
Bertin said any trade in wildlife meat would "likely" be tracked by the province through permits, but he said he couldn't disclose details "for public safety reasons."
He did not respond to a request for an interview with Minister Rick Doucet.
"It's unfortunate that's the only statement that you've obtained," Nouvet said. "To my knowledge the Wolastoqey have not obtained any clearer statement about how government practices will change as a result of the Reynolds decision.
"The government has to go further and actually confirm that it has done away with the 2003 no-transfer-permit policy," she said.
"It's not enough for all of us to assume that Wolastoqey harvesters are not going to get in trouble with conservation officers when they're out on the land exercising their rights."
Still uncertainty
Nouvet, who has represented Maliseet First Nations in other Indigenous-rights cases, said the ruling is clear that conservation officers cannot prosecute anyone else who buys moose meat from Indigenous hunters.
But she said in practical terms, it creates uncertainty.
"Not only does this decision tell New Brunswick that practice was wrong, it should force a look at all of the enforcement practices, all of its policies in relation to enforcement," she said.
"It's a perfect opportunity and a necessary opportunity to look at how enforcement is working to make sure it's consistent with Wolastoqey harvesting rights."
The province claimed during the Reynolds case that the 2003 decision to stop issuing the permits, not publicized at the time, was because too many moose were being harvested.
But French's ruling pointed out the province kept issuing permits to non-Indigenous people with their moose hunting licences. The only people denied permits after 2003 were non-Indigenous people buying moose meat from Indigenous hunters.
Province's rationale doubted
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."
The ending of the permits was supposed to be temporary but no new system had been put in place at 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.
Reynolds's lawyer, Maria Henheffer, said she couldn't comment without the permission of her client. Woodstock First Nation Chief Tim Paul, reached by phone, said he had no comment.
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