An Alberta Indian found guilty of illegally exporting grain to the United States is appealing his conviction.
Harley Frank’s lawyer says the recent Supreme Court decision on native fishing rights may help his client’s cause.
“They gave a very generous interpretation of the treaty right in that case,” said Peter Leveque of Calgary. “If you apply the same kind of approach in our case, apply the treaty that broadly, I think we’re probably in good shape.”
Frank, a Blood Indian from near Lethbridge, Alta., was found guilty in provincial court in that city Sept. 15 of violating the customs act by exporting barley to the U.S. without an export licence from the Canadian Wheat Board.
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Frank argued the Indian Act gave him the right to transport his grain to the market of his choice and therefore he was not subject to the CWB Act and its requirement for an export licence.
During the lengthy trial, defence lawyers also made the case that general aboriginal rights and specific rights arising from an 1877 treaty exempted Indians from CWB regulations.
They also said the requirement for an export licence was discrimination on the basis of race, contrary to the Charter of Rights, and that the buy-back provisions of the CWB Act constituted an illegal tax on Indians.
The judge rejected all those arguments, found Frank guilty and then gave him an absolute discharge.
Leveque said last week that the appeal would be based on technical legal arguments that the judge applied the wrong legal tests in determining aboriginal and treaty rights and in resolving the taxation argument.
The Supreme Court recently ruled that a 1760 treaty gave natives in the Maritimes the right to fish year-round without a licence from the federal government.
