A Nova Scotia provincial court judge has reserved his decision in a court case that involves the treaty right to fish to earn a moderate livelihood.
Leon Knockwood, 27, James Nevin, 38, and Logan Pierro-Howe, 24, from the Sipekne’katik First Nation, N.S. are charged with several fishery violations that allegedly occurred near the wharf in Weymouth, N.S. in Nov. 2018. The fishermen say they have a treaty right to catch and sell lobster to earn a moderate livelihood.
A one-day trial was held in Digby Provincial Court on Sept. 1 before Judge Timothy Landry. Final arguments took place on Oct. 18.
Judge Landry said he will hand down his decision on Jan. 9, 2023.
Crown drops one of four charges against fishermen
The fishermen were each charged with four violations of the federal Fisheries Act. They included violating an Aboriginal communal fishing license that was issued to Sipekne’katik, possessing lobster traps with invalid tags, fishing for lobster without authorization and possession of lobster without authorization.
On Tuesday, federal crown attorney Hugh Robichaud said the crown was withdrawing the charge of violating the Aboriginal communal fishing license before he gave his final arguments on the remaining three charges.
In his closing remarks, Robichaud argued that the fishermen should be found guilty because of the evidence given by fishery officers with the Department of Fisheries and Oceans who arrested Knockwood, Nevin and Pierro-Howe in Weymouth on Nov. 26, 2018.
Robichaud stated the officers testified that the fishermen were in possession of 21 lobster traps and 13 lobster crates aboard the fishing vessel, Evening Star 2. He said the officers testified that two of the tagged traps were owned by “other individuals not before the court from (the) Sipekne’katik Band.”
The crown attorney also said the fishery officers testified the fishermen were in possession of 1,004 lobsters that weighed more than 600 kg, which was in violation of the food, social and ceremonial fishing (FSC) license that DFO issued to Sipekne’katik for the 2018-19 fishing season in Lobster Fishing Area (LFA) 34.
“The authorization permitted three traps each and 90 lobster per day. Clearly, the amount of traps and lobster seized exceeded the FSC license limits,” Robichaud told the court.
Robichaud did not bring up the moderate livelihood treaty right during his closing arguments.
Fishermen have both aboriginal and treaty rights to fish – McDonald
Defence lawyer Michael McDonald argued that the charges against his clients should be dismissed because the limits DFO placed on the Mi’kmaw fishermen to practice their aboriginal and treaty rights to fish in LFA 34 is unconstitutional and an infringement of their rights “that cannot be justified.”
McDonald pointed out that his clients have an aboriginal right to fish for food, social and ceremonial purposes as well as a treaty right to fish to earn a moderate livelihood.
The Mi’kmaw lawyer said that when the fishermen were arrested, they were authorized by the Sipekne’katik chief and council to fish for lobster under the food, social and ceremonial fishing license and fish for a moderate livelihood.
“That’s why two of my clients had FSC tags but my other client did not,” McDonald said. “Just because an individual fishes for FSC doesn’t limit their right to continue to fish for moderate livelihood.”
McDonald noted that during the trial, the fishery officers testified that they did not inspect the traps his clients used to catch the lobster while they were in the water.
“So they don’t know if (the fishermen) were fishing for FSC or if they were fishing for a moderate livelihood,” McDonald said.
McDonald said that under the food, social and ceremonial fishing license that DFO issued to Sipekne’katik First Nation in 2018-19, there were no catch limits for band members if they fished in LFA 32, LFA 33 and LFA 35. However, there were catch limits for band members if they chose to set lobster traps in LFA 34.
McDonald argued that previous Supreme Court of Canada decisions have stated that aboriginal and treaty rights “can only be infringed if it’s for public safety or for conservation purposes.”
“There’s no safety issues here, your Honour,” McDonald said. “With regards to conservation purposes, when I asked Officer Robichaud which area is the most lucrative, he stated that it was LFA 34,” he added.
“Since there’s no factual evidence that lobster is trending as a species at risk, there can be no justifiable infringement for conservation purposes,” McDonald said.
In regards to the charge of having traps with unauthorized tags, McDonald argued that the fishermen had found other lobster traps while they were fishing in St. Mary’s Bay on Nov. 26, 2018, and brought them back to place them on the wharf.
McDonald said both a DFO officer and a former chief and councillor with Sipekne’katik had testified during the trial that it was common practice for fishermen to bring back ghost lobster traps and leave them on the wharf.
“It’s been going on long enough” – James Nevin
Following court, one of the fishermen charged, James Nevin, expressed some frustration with Judge Landry reserving his decision until Jan. 2023. He said the case against him, Knockwood and Pierro-Howe has been before the courts for nearly four years.
“I thought the decision was going to be made today. But it wasn’t. And I think it’s just, it’s been going on long enough,” Nevin explained.
“I just hope the judge makes the right decision,” Nevin said. “You know, (DFO) shouldn’t have charged us in the first place.”
Nevin said he was encouraged that several community members travelled to Digby to show their support for the fishermen.
“It feels good. Everybody’s vouching (for) our treaty rights,” Nevin said.