A New Brunswick judge has recognized a constitutionally protected Aboriginal right for Indigenous defendants to be represented in provincial court by an elder or another community member instead of a lawyer.

The decision was first reported by National Post columnist Jamie Sarkonak, who warned that it could allow unlicensed representatives to advance pseudolegal arguments in Canadian courtrooms.

Provincial Court Judge Martin Goguen issued the ruling in the case of Christopher Labillois, a Mi’kmaq man facing fisheries charges related to lobster harvesting.

Labillois sought permission to have Chief Del Riley, who is not a licensed lawyer, represent him as he argued that his fishing activities were protected by Aboriginal and treaty rights.

Goguen heard evidence that Mi’kmaq communities used elders to help resolve disputes before European contact and later relied upon chiefs and delegates during treaty negotiations and dealings with the British Crown.

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He concluded that the practice was sufficiently connected to modern legal representation to qualify as an Aboriginal right protected by Section 35 of the Constitution Act, 1982.

“It is necessary to say, this Court strongly supports the advancement of the law on aboriginal and Treaty rights,” Goguen wrote. “Truth and reconciliation require this much.”

The ruling applies to proceedings involving less serious offences in provincial court. It does not authorize non-lawyers to practise law generally or automatically extend to more serious criminal cases.

However, the decision could be cited in future attempts to expand the use of unlicensed Indigenous representatives. Critics warn that allowing people without legal training to conduct cases could burden courts, expose defendants to incompetent representation and provide an opening for pseudolegal arguments.

Before his 2025 appointment to the bench, Goguen worked as general counsel for the New Brunswick Legal Aid Services Commission and delivered professional-development sessions for lawyers.

As a provincial court judgment, the decision does not bind other judges and could be reviewed or overturned by a higher court.

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