A lawyer who is representing several Mi’kmaw fishermen in three separate fishery trials in Nova Scotia says the federal government is using the courts to limit where his clients can practice their treaty fishing rights.
“Rights are territorial-based rights. We have rights throughout our entire territory. Mi’kma’ki is an entire territory,” Michael McDonald explained.
Mi’kma’ki is the traditional territory of the Mi’kmaw people. It includes what is now known as Nova Scotia, Prince Edward Island, northern New Brunswick and a portion of the Gaspé region of Quebec.
McDonald represents eight fishermen in trials being held in Bridgewater, Digby and Pictou. All defendants are charged with several violations under the Fisheries Act in relation to lobster fishing activities. The fishermen are from the First Nation communities of Sipekne’katik, Pictou Landing and Eskasoni.
McDonald’s clients are using their treaty right to catch and sell fish to earn a moderate livelihood to defend themselves against the charges.
That treaty right was affirmed in a 1999 Supreme Court of Canada ruling in the Donald Marshall, Jr., fishing case. In that decision, the high court ruled that Marshall had a treaty right to earn a moderate livelihood from fishing under the Peace and Friendship Treaties of 1760-61.
Fishermen must prove they’re from the local area
McDonald has filed a notice in the three provincial courts that he intends to defend all of his clients on constitutional grounds. He argues that because the Supreme Court of Canada affirmed the treaty right to earn a moderate livelihood from catching and selling fish, that right is now protected under section 35 of the Canadian constitution.
In response to McDonald’s constitutional notice in the Digby court case, federal crown attorney Denis Lavoie submitted a letter to Judge Timothy Landry in May 2021. In it, he wrote that the Mi’kmaw fishermen would have to prove several criteria if they were to pursue a constitutional challenge.
Lavoie wrote that the defendants would need to prove there was a historical local Mi’kmaw community in the specific area where the alleged offences occurred and that community signed on to the Peace and Friendship Treaties of 1752 and 1760-61.
He said the fishermen must prove that the local Mi’kmaw community still exists in the same area and that members of that community are beneficiaries of the signed treaties.
The federal crown attorney stated the defendants must demonstrate an “ancestral connection” to the historic local Mi’kmaw community near where they fished for lobster and they are current members of that local community.
Lavoie also wrote the defendants must prove that lobster was historically traded before the treaties were signed.
The local area in question in the Digby court case includes land around the wharf in Weymouth. The other local areas in the two other court cases are Pinkneys Point in Yarmouth County and Merigomish in Pictou County.
Lavoie explained to Ku’ku’kwes News that while another federal crown attorney has taken over the fishery court case in Digby, the argument outlined in the letter will be submitted if the trial moves onto the constitutional challenge portion.
He also confirmed that he intends to put forward similar arguments in the fishery court cases in Bridgewater and Pictou.
“Why do we have to re-prove that we have a right?” – Michael McDonald
McDonald said the federal government is trying to narrow the moderate livelihood treaty right that was affirmed in the 1999 Marshall decision by putting forward these arguments in the three court cases.
“They’re trying to say that the Mi’kmaw people in Cape Breton, the treaties don’t include them. The treaties only deal with the Mainland Mi’kmaq and two of my clients are from Eskasoni,” McDonald said.
“So they’re saying that those two people are not entitled to our treaties,” he said.
“They’re trying to say that if you’re from Eskasoni, you can only fish near Eskasoni. You can only practice your rights near Eskasoni,” McDonald explained. “If you’re from (Sipekne’katik), you can only practice near (Sipekne’katik) and so forth,” he added.
McDonald said that preparing a defence for his clients based on the crown’s arguments means having the same expert witnesses that testified during the Marshall fishing rights case testify in these cases.
“They’re making us go through all the same process that Donald Marshall did,” he explained. “Why do we have to re-prove that we have a right? And that’s what the crown is forcing us to do.”
“The crown basically just wants another kick at the can. That’s all it is,” he said.
McDonald also explained that arranging for expert witness testimony means extra legal costs that his clients cannot afford.
“They don’t have any money to afford experts but they want me to bring all these experts to talk about the right,” he explained.
Closing arguments in the Digby fishing trial is scheduled for mid-October. The trial in Pictou court is scheduled for Jan. 2023. The trial in Bridgewater court is scheduled for one week in Feb. 2023 and one week in May 2023.