A Mi’kmaw lobster fisherman from Eskasoni First Nation in Nova Scotia says he plans to fight several fishery charges against him.
Ashton Bernard, 30, says he was exercising his treaty right to fish for a moderate livelihood when officers with the Department of Fisheries and Oceans seized approximately 3,200 pounds of his lobster at the wharf in Pinkney’s Point near Yarmouth, N.S. in Sept. 2019.
“They took all of our lobsters. I don’t even know what they did with it,” Bernard explained.
Bernard and his younger brother, Arden, were charged. Two other fishermen, Zachary Nicholas and Rayen Francis from Pictou Landing First Nation, were also charged.
The charges against the four include fishing in Lobster Fishing Area (LFA) 34 during a closed time, lobster fishing without authorization, possessing lobster in contravention of the Fisheries Act and violating the Aboriginal communal fishing licences regulations.
According to Bernard, they all plan to plead not guilty when they appear in provincial court in Yarmouth on Monday morning. He says they plan on using moderate livelihood as their defence in fighting the charges.
“We just wanted to practice our rights,” Bernard said.
Bernard notified DFO they intended to fish under moderate livelihood
A 1999 Supreme Court of Canada decision ruled that Mi’kmaq, Wolastoq and Peskotomuhkati have a treaty right to earn a moderate livelihood under the Peace and Friendship Treaties of 1760-61 signed with the British crown. The high court also ruled that DFO can regulate the treaty right for conservation or other public objectives but must justify the regulation.
According to Bernard, he and the other fishermen notified DFO that they intended to fish in LFA 34 as part of their treaty right to fish for a moderate livelihood. They labelled their buoys and traps as moderate livelihood and included their personal identification.
Bernard said they caught 32 crates of lobster over a two-day period and already had a buyer waiting for them at the wharf.
As they were making their way to the wharf in Pickney’s Point, Bernard said he saw DFO trucks on the shoreline observing them.
“They waited until we unloaded all of the lobster off the boat. They came and surrounded us, DFO and RCMP officers as well,” Bernard explained.
“It was frigging heartbreaking because we worked so hard to even get ready to (fish),” Bernard said. “We were about to sell our fish and DFO surrounded us.”
“It’s just this on-going harassment from DFO” – Michael McDonald
Mi’kmaw lawyer Michael McDonald is representing the Bernard brothers and Nicholas. He describes the charges against his clients as a form of harassment.
“They’re laying these charges. They’re confiscating gear. They’re getting vehicles confiscated, the fish that they catch,” McDonald said. “It’s just this on-going harassment from DFO.”
McDonald previously represented his brother, Alex McDonald, and three other Mi’kmaw fishermen from Sipekne’katik First Nation who faced similar fishery charges in 2015. During the trial in Feb. 2018, he used moderate livelihood as a defence. After one day of testimony, the crown gave notice to the court that it was no longer pursuing the case.
McDonald then filed a lawsuit on behalf of his clients against DFO for bringing the charges against them in the first place. He said the lawsuit was settled out of court for an undisclosed amount of money.
McDonald said he hopes to have the charges against the Bernard brothers and Nicholas dismissed.
“When the Supreme Court of Canada lays down any decisions, all the lower courts have to follow those decisions. They’re bound by those decisions,” McDonald explained.
“Yet the Department of Fisheries and Oceans continue to make these arrests and they continue to press these charges on Mi’kmaw people who are just practicing their right,” he said.
Bernard said despite the charges against him, he continues to fish for lobster under his treaty right. He said DFO seized lobster traps he set in St. Peters Bay earlier this month.
“They’re going to have to keep charging me because I’m not going to stop,” he said.