Batchewana chief disappointed by decision in logging case

Justice Romuald Kwolek of the Ontario Court of Justice today granted leave for the Crown to withdraw charges against Batchewana First Nation Chief Dean Sayers and three others under Ontario's Crown Forest Sustainability Act.

"I am satisfied that the Crown has demonstrated that it is in the public interest that the outstanding charges under the Provincial Offences Act and the Crown Forest Sustainability Act should be withdrawn," Judge Kwolek said in a decision released today at the Sault Ste. Marie Courthouse.

"Based on the existing state of the law, the court is satisfied that it should not interfere with the prosecutorial discretion and should grant leave to withdraw the charges," the judge said.

Chief Sayers, Clinton Robinson, Gilles Robinson and Philip Swanson were charged in 2008 with unlawfully logging in a Crown forest without a licence.

The four entered pleas of not guilty on September 21, 2015 and were ordered to stand trial on May 16, 2016.

Ten days before the scheduled trial, the Crown indicated it didn't intend to proceed with the prosecution, even though it thought there was a reasonable prospect of conviction.

Sayers, Swanson and the Robinsons all opposed the dropping of charges.

"Normally, defendants are more than happy to consent to a withdrawal of charges as that would terminate proceedings against them and they would no longer be in jeopardy of criminal or pseudo-criminal sanctions," Judge Kwolek said in his 28-page decision.

"However, this prosecution, it was argued by the defendants, had much greater significance to the litigants as they hoped to address issues of treaty and aboriginal rights."

The judge granted leave to the Crown to withdraw the charges against the four accused.

He ordered that $300,000 be paid to Sayers, Gilles Robinson and Philip Swanson for legal costs.

He also ordered that Clinton Robinson receive $90,000 for costs.

Judge Kwolek said he had no power to order the Crown and Batchewana First Nation to negotiate sharing of the Algoma forest resources, but he expressed hope that withdrawal of the charges will result in resumption of talks in accordance with "the honour of the Crown."

"Surely the issue of interim logging in a defined area by aboriginal loggers can be resolved in relatively short order between the provincial Crown and Batchewana First Nation," the judge said.

"The court also encourages the parties to enter into expedited discussions relating to the outstanding issues involving treaty rights and the validity of the Pennefeather Treaty which will require the co-operation of both the federal and provincial Crowns and others."

"Such negotiations should proceed in the absence of outstanding charges under the Provincial Offences Act," Kwolek said. "The threat of criminal sanctions should be replaced with negotiation by both the federal and provincial governments with Batchewana First Nation and other interested parties."

The negotiation process should reaffirm "the nation-to-nation relationship between aboriginal peoples and the Crown," the judge said.

Afterward, Chief Sayers expressed profound disappointment with the decision, telling reporters that he will now seek advice from his band council and elders, as well as other Robinson-Huron treaty chiefs, on how to best assert jurisdiction over Indian land. 

"We will continue to assert our jurisdiction," the chief said.

"We will have our people become more involved in how we address this issue. We cannot continue to allow our people to be on the outside as the erosion of the environment continues to be endorsed and perpetuated by Ontario from a corporate window of interest."

"We have been at the negotiation table. The largest negotiation took place in 1850 when we said we were going to retain and maintain forests. It's pretty black and white. There is no 'let's negotiate for the jurisdiction of the forest now.' We can sit down and we can talk about possibly a place for Ontario in our forests. But the table isn't going to be set the way it's set right now."

"There is an assumption of jurisdiction. We're not content with that assumption right now. We will be resuming our control of that table, somehow, some way, come hell or high water. We will be back there."

Chief Sayers said that legal costs weren't the principal issue in this case and he estimated that the $300,000 awarded to himself, Gilles Robinson and Philip Swanson will cover just two-thirds of the actual costs of defending the case.

Read the full text of Justice Kwolek's decision here