Editor’s note: Updated at 10:52 p.m. Includes response from DFO.
Two Nova Scotia Mi’kmaw fishermen say the Department of Fisheries and Oceans are violating their treaty right to fish for a moderate livelihood by seizing their lobster traps.
Jason Lamrock, a member of the Acadia First Nation, says DFO officers seized his ten lobster traps he dropped in waters just off Woods Harbour near Barrington, N.S. on Monday.
“I clearly told them the gear was perfectly identified as mine, top to bottom,” Lamrock said Monday. “They said it wasn’t a tagged pod. Clearly, they don’t recognize our inherent right to be able to do this,” he said.
David McDonald, a member of the Sipekne’katik First Nation, says DFO officers also seized ten of his lobster traps from St. Mary’s Bay on Aug. 9.
“We have a right to do this, a right to make a moderate living,” McDonald said.
Both fishermen are demanding that DFO either return their traps or charged them with fishery violations.
“We’ve got to go back to court to straighten this out or they’ve got to allow us to fish,” McDonald said. “They’ve got to stop making us look like criminals down here and that’s exactly what they’re doing,” he added.
Treaty right to fish for moderate livelihood upheld in R v. Marshall
In 1999, the Supreme Court of Canada ruled that the Mi’kmaq, Wolastoqiyik and Peskotomukati have a treaty right to earn a moderate livelihood from the commercial fishery. The court case involved Mi’kmaw fisherman, Donald Marshall, Jr., who was charged with catching and selling eels without a license in Pomquet Harbour, N.S. in 1993.
Marshall, a member of the Membertou First Nation, N.S., argued that he had a treaty right to catch and sell fish under the Peace and Friendship Treaties of 1760-61 signed between his Mi’kmaw ancestors and the British Crown.
Following a trial in 1995, Marshall was found guilty of the fishery violations. He appealed his case to the Nova Scotia Court of Appeal which upheld his conviction. He then appealed that ruling to the Supreme Court of Canada which overturned his conviction.
Following the 1999 court ruling, a majority of the 33 First Nations in the Maritime provinces signed interim commercial fishing agreements with DFO. In those agreements, the department offered money for fishing boats, gear and training in return for following current commercial fishery regulations.
However, negotiations between DFO and First Nations in the Maritimes to define a moderate livelihood fishery only began in late 2017.
Not the first time DFO has seized moderate livelihood traps
Lamrock says DFO officers seized his lobster traps and fishing boat while he was fishing in St. Mary’s Bay near Digby, N.S. last year. He says he wasn’t charged with fishery violations and his traps were eventually returned.
Marilynn-Leigh Francis, who is also a member of the Acadia First Nation, says DFO officers also seized her traps while she was fishing in St. Mary’s Bay last year.
“I would go into the DFO office with hope that we would talk but nobody knew what the treaty was. Nobody knew what inherent right meant,” Francis said. “They view what I’m doing as illegal even though in my treaty, it says I’m allowed to do what I’m doing,” she said.
Like Lamrock, Francis said her lobster traps were eventually returned to her but she wasn’t charged with any fishery violations.
“I’m being harassed for no reason because what I’m doing is not illegal,” Francis said.
This year, Francis has been setting her lobster traps offshore near Yarmouth, N.S. So far, she says DFO officers haven’t seized her traps.
Fishery officers to take appropriate enforcement, investigative actions – DFO
Ku’ku’kwes News contacted DFO to ask why fisheries officers were seizing traps from Mi’kmaw fishers exercising their treaty right to earn a moderate livelihood.
In an email response, DFO spokesman Benoit Mayrand wrote that while the department recognizes the Mi’kmaw fishers’s treaty right, it also needs “to promote and monitor compliance of all harvesters with the Fisheries Act and its regulations.”
“As such, fishery officers will take appropriate enforcement and investigative actions,” Mayrand wrote.
When asked why DFO officers were only seizing traps and not charging the Mi’kmaw fishers with illegal fishing, Mayrand wrote that “fishery officers have a range of compliance that they can use depending on the particular situation.”
“Any compliance measures taken are based on numerous factors, including severity of the offence, history of the offender, and the public interest,” Mayrand explained.
“The Supreme Court of Canada recognized a treaty right to fish, hunt and gather in pursuit of a moderate livelihood and directed the Parties to negotiate what is required to implement this right. Accordingly, DFO has been working with the Mi’kmaq at negotiation tables to implement the right,” Mayrand wrote.
Sipekne’katik fisherman suing DFO says traps remain untouched this season
Alex McDonald, a member of the Sipekne’katik First Nation (band), says his 15 lobster traps have remained untouched since he started fishing in St. Mary’s Bay earlier this month.
“I have’t really seen much of DFO,” Alex McDonald said. “They (DFO officers) haven’t spoken to me and they haven’t bothered me at all,” he said.
Alex McDonald and four other Mi’kmaw fishermen with Sipekne’katik are currently suing DFO for charging them with commercial fishery violations in 2015. The charges were withdrawn following one day of testimony in Digby Provincial Court in Feb. 2018.
Alex McDonald and the other fishermen are seeking compensation for loss of income, seized lobster, legal fees and travel costs to attend court appearances. He says negotiations with DFO lawyers on a settlement amount is ongoing.
McDonald says he plans to file another lawsuit against DFO if fishery officers seize his traps in St. Mary’s Bay.