Editor’s note: This story was updated to include details of court proceedings that took place on Mar. 6.
Several trials involving the treaty right to catch and sell fish are slated to get underway in Dartmouth, N.S. in the next few months.
One of those trials involves five Mi’kmaw fishermen who are charged with illegally fishing for baby eels, also known as elver eels. If convicted, the fishermen could each be fined a maximum of $500,000.
The trial was set to begin Mar. 6 in Dartmouth Provincial Court. However, the trial was adjourned until Sept. 19 when one of the fishermen, Robert Syliboy, was unable to attend the trial.
Another trial involves two fishermen from the Eskasoni First Nation, N.S. who are also charged with illegally fishing for elver eels. Their trial is scheduled for May 2.
Two other fishermen from the Pictou Landing First Nation are scheduled to return to court in Dartmouth on Mar. 24 to set a date for trial. They’re charged with obstruction for transporting live lobster from Saulnierville to Popes Harbour to sell.
All of the fishermen say the charges against them are unconstitutional because they violate their treaty right to catch and sell fish to earn a moderate livelihood.
That treaty right was affirmed in 1999 Supreme Court of Canada ruling in the Donald Marshall eel fishing case. The court decision found that Marshall, a Mi’kmaw fisherman from Membertou First Nation, N.S., had a treaty right under the Peace and Friendship Treaties of 1760-61 to catch and sell fish to earn a moderate livelihood.
The 1999 court decision also ruled that the federal government can regulate or limit the treaty right for conservation reasons but it also needs to consult the affected First Nation communities.
Michael Paul charged with illegal fishing in 2021
Michael Paul, a member of the Sipekne’katik First Nation, is one of the five fishermen who were charged by fishery officers with Fisheries and Oceans Canada, or DFO, for illegally fishing for elver eels near Musquodoboit Harbour, N.S. in March 2021.
Paul, 31, says he was with his brother and some friends when fishery officers confronted them and seized their gear.
Paul questions whether DFO’s enforcement of the elver eel fishery is for conservation reasons.
“If you actually went to these rivers and saw them yourself, you’d say there’s absolutely no shortage of them right now,” Paul says.
“Maybe that could be a concern down the road as more people want to get into [elver eel fishing] and maybe there should be some sort of regulation and limits but our band has already imposed those limits on us,” he explained.
In a written response, a spokeswoman with Fisheries and Oceans Canada explained that “any fishing taking place without a licence, or in contravention of a licence issued by DFO is subject to enforcement action.”
“Fishery officers conduct inspections and follow-up as required in each circumstance, which may include education, issuing warnings and/or laying charges, depending on their assessment of all the situational factors,” the spokeswoman wrote.
Eskasoni fishermen charged in 2020
Kevin Bernard and Cregg Battiste from the Eskasoni First Nation in Cape Breton were charged with elver eel fishing near Ship Harbour River in Halifax County in May 2020.
According to court documents, DFO fishery officers accused Bernard and Battiste of violating an April 2020 fisheries management order that closed the elver eel fishery due to an increase in fishing activity and conflicts between commercial and non-commercial eel harvesters.
“I just heard people were fishing for them and making a decent amount of money,” Bernard says.
The eels aren’t sold to just anyone, “The thing is to raise an elver to be an eel you need a lot of equipment,” Paul says.
The elver eels price averaged around $2,154 per pound in 2022 according to the Maine Department of Marine Resources. Catching and selling elver eels has become a popular source of income for fishermen in the Maritime provinces.
Japan, China and other Asian markets are popular buyers, Paul explains. This is because they are able to harvest the eels to full size and sell them for market price, he adds.
Both Paul and Bernard say they are unable to fish for a living because the DFO is not recognizing their treaty right when fishery officers charged them and seize their gear.
“We just feel like us Natives, we shouldn’t be getting charged for this because it’s in the treaties,” Bernard says.
Paul and Bernard are hopeful that the charges against them will either be dropped or dismissed.
“It’s just something on my record but it’s not going to stop me from fishing,” Bernard says.
Daniel Francis charged with obstruction for transporting lobster
The third case that is just starting to make its way through court in Dartmouth involves obstruction for transporting live lobster.
On Feb. 15, Daniel Francis and Trent Francis appeared in Dartmouth Provincial Court with a group of supporters to plead not guilty to a charge of obstructing a fisheries officer.
Following his court appearance, Daniel Francis explained that fishery officers followed him and then charged him for not producing identification, however, he said he did show his status card to a fishery officer.
“They said we still weren’t allowed to have the lobsters, so they told us to get out and they took the vehicle and the lobsters,” Francis said.
Del Riley, a member of the Chippewas of the Thames near St. Thomas, Ont., and a former president of the former National Indian Brotherhood, is representing Francis in court.
“We are going to prove that their treaty rights supersede the Indian Act and supersede anything that the province or federal government will try to do,” Del Riley said outside of the Dartmouth courthouse.
“This treaty is powerful,” he said.
However, one trial involving elver eel fishing that was scheduled to begin in Dartmouth on Feb. 27 didn’t go ahead.
Terence Augustine and Lance Bernard, both from the Sipekne’katik First Nation, N.S., were charged with illegally fishing for elver eels near Ship Harbour, N.S. in May 2020.
A provincial court judge dismissed fishery charges against them when federal crown attorney Sarah Newton told the court she wouldn’t be offering any evidence in the trial.