“We can’t use our treaty rights to fish.” Mi’kmaw fishermen upset with fines following sentencing circle for fishery offences

A sentencing cirlcle was held for Zachery Nicholas, left, and his father, William Nicholas, in Pictou Landing First Nation, N.S. on Dec. 8, 2023/Photo by Stephen Brake

Two Mi’kmaw fishermen from the Pictou Landing First Nation in Nova Scotia are upset with the amount of fines they received following a sentencing circle for lobster fishing out of season.

A provincial court judge fined William Nicholas and his son, Zachery Nicholas, a total of $7,000 during a sentencing circle held in their home community on Dec. 8.

“We’ve just been found guilty for exercising our rights that we thought we had and apparently we don’t,” Zachery Nicholas, 37, said following the sentencing circle.

“I guess we’re not allowed to lobster fish,” William Nicholas, 61, added. “We can’t fish for our rights, I guess, or we can’t use our treaty right to fish.”

William Nicholas, left, and Zachery Nicholas/Photo by Stephen Brake

William Nicholas and his son, Zachery Nicholas, were each charged with four counts of fishing for and possessing lobster during a closed season. According to court documents, the offences took place in Oct. 2019 in Lobster Fishing Area 26 A in waters near their home community of Pictou Landing First Nation.

Both fishermen pleaded not guilty and filed a notice to the court that they intended to challenge the charges on constitutional grounds. They argued the Fisheries Act violates their constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood.

The first portion of their trial, called an actus reus, got underway in Pictou Provincial Court on May 3. After one day of testimony, Judge Alain Bégin concluded the fishermen’s actions violated the Fisheries Act. Five days were set aside in Feb. 2024 to hear their arguments against the charges on constitutional grounds.

However, the fishermen withdrew their constitutional challenge in September and requested Judge Bégin to sentence them instead for the fishery violations.

Pictou Provincial Court/Photo by Stephen Brake

Father and son unable to pay legal fees for experts

William Nicholas explained he and his son were forced to withdraw their constitutional challenge because they could not pay the legal fees to bring in experts to testify. He said they were also unable to get legal support from their chief and council.

“We didn’t have enough money to fight for, you know, to take it to a higher court,” William Nicholas explained. “We had no choice.”

Ku’ku’kwes News reached out to Pictou Landing First Nation for comment but did not receive a reply.

Judge Bégin granted the fishermen’s request to be sentenced through an Indigenous sentencing circle organized by the Mi’kmaw Legal Support Network. The judge also granted their lawyer’s request to have a Gladue pre-sentence report prepared before the sentencing circle took place.

A Gladue report is a type of pre-sentence report that takes into account a defendant’s Indigenous background and circumstances in sentencing.

The Mi’kmaw Legal Support Network prepared a 21-page Gladue pre-sentence report for William and Zacnery Nicholas and submitted it to Judge Bégin in November.

The Gladue report, obtained by Ku’ku’kwes News, stated that both father and son “experienced the adverse impact of many factors that continue to plague Aboriginal communities since colonization” that include racism, denial of treaty rights and “historical trauma endured by Pictou Landing First Nation as a result of systemic, overt and environmental racism.”

Restorative justice “waste of time” – lawyer

William and Zachery Nicholas explained they were hopeful Judge Bégin would take into consideration the Gladue pre-sentence report and their Indigenous background and impose a reduced fine amount. Instead, they said the judge agreed with the federal crown’s recommendation for the fines.

Zachery Nicholas was fined $750 for each offence which totalled $3,000. His father, William, was fined $1,000 for each count which totalled $4,000. They have two years to pay the fines.

William Nicholas said the sentencing circle participants, made up of community members and MLSN representatives, stated the fishermen “did the right thing” in exercising their treaty right but they also “didn’t do the right thing” in violating the Fisheries Act.

“It kind of sends mixed messages within our community,” Zachery Nicholas said.

William and Zachery Nicholas with their lawyer, Michael McDonald, centre/Photo by Stephen Brake

Their lawyer, Michael McDonald, described the entire restorative justice exercise for his clients as “a waste of time.”

“Why did we even waste our time getting ready a Gladue report and sitting here in a circle when the judge was going to give the crown (attorney) what he wanted anyway,” McDonald said.

More than 50 Mi’kmaw fishers before Nova Scotia courts

There are more than fifty Mi’kmaw fishers before the courts in Nova Scotia charged with illegally fishing for lobster or elver eels. Nineteen fishermen are currently fighting the charges on constitutional grounds.

Of the 19 Mi’kmaw fishermen who have pleaded not guilty, only two are legally supported by Mi’kmaw leadership in Nova Scotia. They are Matthew Cope from the Millbrook First Nation and Craig Doucette from the Potlotek First Nation. Both fishermen are charged with lobster fishing during a closed season.

The Millbrook First Nation has retained the Halifax-based law firm, Burchell Wickwire Bryson, to represent Cope. The Assembly of Nova Scotia Mi’kmaw Chiefs has hired Rénee Pelletier with the Toronto-based law firm, Olthuis Kleer Townshend, to represent Doucette.

When asked why the ANSMC is supporting one Mi’kmaw fisherman and not the others in their constitutional challenges, a spokeswoman declined to comment while Doucette’s case is ongoing.

“Where the issue is before the courts, we are limited on what further details we can provide,” Crystal Dorey said in an email response.

Zachery Nicholas/Photo by Stephen Brake

“Put some money aside” for fines – Zachery Nicholas

Five Mi’kmaw fishermen have recently decided not to challenge the charges on constitutional grounds. Instead, they have chosen to resolve their cases through restorative justice with the Mi’kmaw Legal Support Network.

Zachery Nicholas says those fishermen need to think twice before going through with the restorative justice route to resolve their matters.

“Unless you (already) got money, put some money aside in your cookie jar for your fines,” Zachery Nicholas said.

Even though they’re dissatisfied with the outcome of the sentencing circle, the pair say they will not be appealing their sentence.

“No one’s got your back. We’re by ourselves in this whole fight and the fight is not just ours. It’s the whole community’s,” Zachery Nicholas said.

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About Maureen Googoo 270 Articles
Maureen Googoo is an award-winning journalist from Indian Brook First Nation (Sipekne'katik) in Nova Scotia. She has worked in news more than 30 years for media outlets such as CBC Radio, the Chronicle-Herald and the Aboriginal Peoples Television Network. Maureen has an arts degree in political science from Saint Mary's University in Halifax, a journalism degree from Ryerson University in Toronto and a Masters degree in journalism from Columbia University Graduate School of Journalism in New York City.