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In 2016, two Court of Queen’s Bench judges called on the province of New Brunswick to do more to resolve legal ambiguities about how Aboriginal and treaty rights apply to hunting. The judges, in two January rulings on separate cases, suggested that perhaps the courts are not the best forum for deciding the complex issues that can arise in Aboriginal rights cases.

Stephen Bernard was one of those cases. He is a Sipekne’katik band (Indian Brook) member but didn’t grow up in that Nova Scotia community; his grandfather was from there but lost his Indian status as a result of fighting in the Second World War. The family only regained status in the 1990s after Canada amended the Indian Act to address some of its discriminatory provisions. Bernard has lived his whole life in Saint John.

“Stephen’s case raises complex history and issues around displacement of communities and Indian status rules and who should decide who can exercise the Mi’kmaq right to hunt."
— Professor Naiomi Metallic

The specific case against Bernard, who was convicted of hunting without a licence in Saint John, has dragged on for years, during which he had represented himself in court because he couldn’t afford to hire a lawyer. The case hinges on whether he was outside the traditional hunting grounds of his Mi’kmaq community.

The Honourable Justice Hugh McLellan of the Court of Queen’s Bench of New Brunswick struck down the jail time and fine imposed on Bernard but ruled that he was too far from Sipekne’katik territory to be exempt from New Brunswick’s requirement for a provincial hunting licence. However, McLellan agreed with the provincial court trial judge that the case “illustrates the need to find a more effective, timely, and fair method to resolve questions between Aboriginals and the state over Aboriginal rights.”

Fast forward to November of 2016, when Professor Naiomi Metallic and two Burchells LLP colleagues, lawyer Rosalie Francis (LLB ’15) and articled clerk Roy Stewart, represented Bernard in the New Brunswick Court of Appeal. All three are Indigenous and specialize in Aboriginal law.

Five years ago, Bernard had contacted Metallic to ask for help with his case. They had a few conversations, and she helped him find Legal Aid counsel. After McLellan’s decision, and realizing the significance of the case not only to Bernard but to Mi’kmaq people in general, Metallic pitched it to Burchells’ managing partners, who said yes. “Stephen’s case raises complex history and issues around displacement of communities and Indian status rules and who should decide who can exercise the Mi’kmaq right to hunt,” she says.

“I felt great pride that Naiomi, Rosalie, and Roy were fighting with me, and it gave me the sense of belonging to a bigger community. They saw the injustice of my situation and felt compelled to help me. I will be forever thankful for them.”
— Stephen Bernard

At the appeal, Metallic argued that because Mi’kmaq hunting rights are communal rights, the Aboriginal community has control over them. “It’s the Mi’kmaq right to decide who can exercise the Mi’kmaq right to hunt, not the New Brunswick government,” she told the panel of what she describes as “extremely engaged” judges: The Honourable Justices Marc Richard, Margaret Larlee, and Kathleen Quigg.

Metallic felt that the hearing went well. “It was crazy adrenaline, because we worked so hard on Stephen’s case and he was so happy and really moved that we were doing this for him,” she says. “A case like this is why I got into law.”

For Bernard, who is 58 and hasn’t been allowed to hunt to provide food for his family since he was charged in 2004, the hearing was empowering. “The legal team’s professionalism and preparedness, and their knowledge of the issues at hand, gave me overwhelming relief,” he says. “I felt great pride that Naiomi, Rosalie, and Roy were fighting with me, and it gave me the sense of belonging to a bigger community. They saw the injustice of my situation and felt compelled to help me. I will be forever thankful for them.”

“If the judges allow the appeal, it may be precedent setting in New Brunswick and across the country in that Aboriginal communities will have the right to self-regulate regarding their Aboriginal rights.” — Professor Naiomi Metallic

That gratitude runs deep. Throughout the years Bernard has faced many challenges, including not having the finances for proper representation, not being educated in Aboriginal law within New Brunswick, and not having information on rights of off-reserve status Indians in modern times.

“It was hard to balance my job and my family with self-representation and trying to educate myself as the case developed,” says Bernard. “The highs and lows, and struggling with just letting it go but knowing I couldn’t, became bigger than just me – it was about preserving a native right.” Bernard’s hope for the judges’ decision? “That I will be able to hunt and fish without incident in my own province.”

Metallic’s fingers are also crossed for a positive outcome. “You have hearings when you know the judges aren’t in line with your thinking, and that didn’t seem to be the case with this hearing,” she says. “If the judges allow the appeal, it may be precedent setting in New Brunswick and across the country in that Aboriginal communities will have the right to self-regulate regarding their Aboriginal rights.”