Today Dalhousie University posted a great Jane Doucet article to its website on the recent New Brunswick Court of Appeal case of R. v. Bernard. The piece profiles both the case and Burchells' involvement.
Stephen Bernard's case gives rise to issues of concern for both the lawyers of our Aboriginal Law practice group and many Burchells clients. With this in mind we agreed to represent him last year pro bono, culminating in submissions before the New Brunswick Court of Appeal last November.
In 2004 Mr. Bernard -- a Mi’kmaq and status Indian registered with the Sipekne’katik Band and who has lived his entire life in Saint John, N.B. -- was charged with hunting without a provincial license. At trial he represented himself, arguing he had an Aboriginal right to hunt for food and thus did not require a license. Both the New Brunswick Provincial Court and Court of the Queen’s Bench concluded, however, that Mr. Bernard was too far from the territory of Sipekne’katik to be hunting without a license under the Band's regulation.
Among other issues, these decisions run counter to Mi’kmaq rights to govern themselves and the hunting activities of their people.
The Mi’kmaq historically managed their hunting activities. The New Brunswick government should not assume such jurisdiction, but leave it to the Mi’kmaq communities to collectively manage hunting as an indigenous governance right. At the November 2016 hearing the Court of Appeal judges were extremely engaged in the submissions of Burchells’ lawyers Naiomi Metallic and Rosalie Francis, along with Articled Clerk Roy Stewart, on Mr. Bernard's behalf.
The Court of Appeal has not yet rendered its decision. But a finding for Mr. Bernard could have major implications for Mi’kmaq communities, recognizing that Aboriginal people have the right to manage their hunting activities.