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Ontario judge says government must pay $390,000 in legal costs after withdrawing long-standing charges against Indigenous men.

Wesley VanDinter/Getty Images

An Ontario judge has taken the unusual step of ruling that the Crown must pay the legal fees of the defendants in a criminal case after the government withdrew nearly eight-year-old charges against Indigenous men who were logging on Crown land.

In a strongly worded decision, Justice Romuald Kwolek said Ontario's Ministry of Natural Resources knew from the time charges were filed in 2008 against the Chief of the Batchewana First Nation and three other men that aboriginal issues were at stake and should not have waited until May, 2016, to ask that the charges be withdrawn in favour of a negotiated resolution.

Citing the United Nations Declaration on the Rights of Indigenous Peoples, which says Indigenous peoples have the right to prompt decisions in disputes with other parties, and the calls to action of the Truth and Reconciliation Commission, he ordered the government to pay $390,000 in legal fees – an amount he said should serve as "denunciation and deterrence" of the ministry's actions.

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Jennifer Tremblay-Hall, the lawyer for Chief Dean Sayers and two of three other men who were charged with unlawfully harvesting forest products under Ontario's Crown Forest Sustainability Act, said in a telephone interview on Monday that it is "extremely rare" for the Crown to be required to pay the legal fees of defendants in a criminal case.

"I think it's unprecedented in Ontario with respect to Natural Resources," Ms. Tremblay-Hall said.

The dispute dates back to 1859, when the Batchewana First Nation – a community on the north shore of Lake Superior – says lands set aside for its members were improperly taken by the Crown under what is known as the Pennefather Treaty.

The First Nation says it tried in recent years to get the province and the federal government to enter a "nation-to-nation" discussion to resolve the dispute. When those efforts were fruitless, Mr. Sayers decided to provoke action.

He went onto the Crown land on several occasions with three different men in 2007 and 2008 and watched as the men cut down trees. They were charged and their first court appearance was on Nov. 6, 2008.

The proceeding was delayed for several years while an expert for the defendants compiled a historical report of the Batchewana First Nation, which was completed in May, 2014.

Two years later, the Crown asked to withdraw the charges saying that although "there was a reasonable prospect for conviction," the report made it clear that constitutional issues were at stake and a criminal court was not the place to resolve complex and historical matters of aboriginal rights.

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The defendants, who had hoped for a dismissal that they could use to bolster their land claims or for a guilty plea that they could have appealed to a higher court, were furious and opposed the Crown's efforts to withdraw the charges.

Justice Kwolek agreed with the Crown that withdrawing the charges was in the public interest but, he said, it was within his jurisdiction to award costs.

The government conceded that the case should have been abandoned when the May, 2014, report was completed and agreed that it should pay for some of the defendants' legal fees dating back two years.

But Justice Kwolek said "the Crown knew from the very beginning that significant aboriginal issues were at play" and, for that reason, he considered all of the legal costs incurred by the defendants dating back to 2008 when determining how much the government should pay.

The federal government said Tuesday that it is always open to sitting down to discuss how to advance reconciliation. The Ontario government said it is reviewing the decision and "is committed to the goal of reconciliation and resolving Indigenous issues and claims – when possible – through discussion and agreement."

But Ms. Tremblay-Hall said neither the federal government nor the provincial government have expressed any interest in talks, so the First Nation will turn to the civil courts to resolve the dispute.

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