Take Away Pt from Ct of Appeal

[57] Although Gladue was focused primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system's engagement with Canada's First Nations. I note three factors in particular that were highlighted in Gladue: the estrangement of aboriginal peoples from the Canadian justice system, the impact of years of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member. Those factors were all at stake in this case.

[58] First, while the appellants did not contest the injunctions and admitted that they were in breach of the orders, the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation. The fact that persons of the stature of Mr. Lovelace and Chief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation and the other problems discussed in Gladue at paras. 67-69. Finally, imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system. That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture's sense of justice and this First Nation's sense of justice.

[59] For these reasons, I cannot agree that the principles underlying the Gladue decision have no application in the civil contempt context. Rather, as in Gladue, the court must look at the unique systemic or background factors at play in this case.

[60] What then are the unique systemic or background factors that played a part in bringing the AAFN and two of its leaders before the courts to be sentenced for contempt? The first background factor is that there is an existing land claim negotiation between the Algonquin Nation and Ontario. In Haida Nation, the Supreme Court of Canada held at pp. 532-36 that when the Crown has knowledge that a First Nation community has claimed rights or title in respect of a territory, it must consult the affected community and, where indicated, must accommodate aboriginal concerns before approving any activity that could have an impact on the claimed rights or title. In Taku River, at p. 567, the Supreme Court also held that the fact that a land claim has been accepted by the Crown for negotiation establishes a prima facie case that the claim has merit. Ontario accepted the Algonquin land claim for negotiation in 1991: see Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, [2007] O.J. No. 3360 (S.C.J.) at para. 25. Haida Nation and Taku River together instruct that the existing, and as yet unresolved, Algonquin land claim – the basis for the AAFN's protest and blockade – cannot simply be dismissed as illusory, flawed or weak.

[61] The second background factor that played a part in bringing the appellants before the courts is the nature and content of Ontario's Mining Act. It is a remarkably sweeping law. It establishes a "free entry" system whereby all Crown lands, including those subject to aboriginal land claims, are open for prospecting and staking, without any consultation or permitting required. Anyone with a prospector's licence may stake claims and prospect for minerals on any Crown land. Once a claim has been staked, in accordance with the Act, the Mining Recorder must record the claim. There is nothing in the Mining Act about considering aboriginal land claims or interests.

[62] The intersection of these two background circumstances creates an obvious problem, indeed the problem that lies at the heart of this case. What Frontenac wants to do on Crown land – staking and exploration – is legal under the Mining Act. However, the appellants' response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of s. 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada. In summary, the appellants' character and circumstances, their actual conduct, and the difficult legal context within which it occurred, should have counted as significant mitigation when sentences were imposed on them. The circumstances of the offences and these aboriginal offenders are such that, in accordance with the Gladue principles, sentences of incarceration were inappropriate.

[63] The third reason for concluding that the sentences imposed on the appellants were too harsh is that they are considerably more severe than the sentences imposed in other protest/blockade cases. In MacMillan Bloedel Ltd. v. Brown (1994), 88 C.C.C. (3d) 148, the British Columbia Court of Appeal allowed in part appeals from sentences for criminal contempt consisting of public disobedience of court orders related to logging operations in Clayoquot Sound. McEachern C.J.B.C., for the majority, discussed past sentences that were imposed by B.C. courts for contempt in non-violent protest cases, at para. 8:



[66] For these reasons, I conclude that the custodial and monetary components of the sentences imposed on the appellants were too harsh. [67] Nor, at this juncture, would I order any custodial sentence. That is not to say that incarceration is always out of place in civil contempt cases. In some cases, including potentially this case down the road, incarceration and substantial fines may be necessary. However, it would be wrong to cross this bridge now for these first offenders in a situation that cries out for dedicated negotiation among Ontario, the AAFN and Frontenac with a view to reconciliation of the competing interests.

[68] On this final point I could cite almost 20 years of Supreme Court of Canada decisions, from Sparrow to Mikisew, or the eloquent Report of the Ipperwash Inquiry (Queen's Printer for Ontario, 2007). However, I choose to quote the equally thoughtful observation by the motion judge near the end of his reasons in support of the interlocutory injunction he issued on September 27, 2007:

I fully recognize that this case engages complex relations between the Crown and aboriginal peoples. I also recognize that respect for consultation lies at the heart of resolving such disputes even when certainty over the legitimacy and extent of the claim is unresolved. As the Supreme Court of Canada has noted in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 and in Haida, supra, conciliation between aboriginal and non-aboriginal peoples, and their respective claims, interests and ambitions is the fundamental objective of these negotiations.

E. DISPOSITION
[69] I would allow the appeal and set aside the custodial and monetary components of the sentences imposed on the appellants.

[70] The appellants are entitled to their costs of the appeal. They may file costs submissions of not more than five pages within 30 days of the release of these reasons. The respondents should file their responses within 14 days thereafter. The interveners should neither pay nor receive costs.