A Nova Scotia band councillor who is also a Mi’kmaw fisherman is advising his fellow lobster fishers not to use food fishery tags issued by the Department of Fisheries and Oceans if they want to practice their treaty right to earn a moderate livelihood by selling their catch.
“Do not accept any food fishery tags from your band government or from DFO to fish treaty, fish for a moderate livelihood,” Sipekne’katik band councillor Alex McDonald said in a recent interview.
McDonald’s advice comes following a court trial earlier this year in which he and three other Mi’kmaw fishermen were charged in 2015 with illegally fishing for lobster in St. Mary’s Bay, N.S.
McDonald, 56, Mark Howe, 59, and Jeremy Syliboy, 36, of Indian Brook First Nation, N.S. (Sipekne’katik Band) were charged after they were pulled over by DFO fishery officers on Sept. 24, 2015, near Saint Bernard, N.S. McDonald’s son, 28-year-old Kyle McDonald who is a member of the Millbrook First Nation near Truro, N.S., was with them and was also charged.
All four Mi’kmaw fishermen pleaded not guilty and a trial got underway in Digby, N.S. on Feb. 9. After one day of testimony in Digby Provincial Court, the crown sent a letter to Judge Claudine MacDonald on Feb. 14 requesting for a stay of proceedings.
McDonald hired his younger brother, Michael McDonald, to represent him and the other fishermen at trial. The 49-year-old lawyer argued that the fishermen were exercising their treaty right to fish for a moderate livelihood, not fishing under food fishery regulations.
“The reason why they ended up withdrawing the charges is because they couldn’t prove that those traps that my brother was fishing in, the rest of those fishermen were fishing in, had those food fishery tags in it,” Michael McDonald said.
“They could not prove it because they weren’t fishing with those food fishery tags. They were fishing with traps with no tags,” Michael McDonald explained. “We have a right under Marshall to fish for a moderate livelihood. So, we don’t need to use those food fishery tags at all,” he added.
The Supreme Court of Canada ruled in the 1990 Sparrow decision that Indigenous people have an Aboriginal right to fish for food, social and ceremonial purposes. As a result, DFO created the Aboriginal Fisheries Strategy in 1992 to manage that food fishery.
In 1999, the same high court ruled in the Marshall decision that Mi’kmaq, Wolastoqiyik and Peskotomuhkati have a treaty right to earn a moderate livelihood from the commercial fishery. In 2017, DFO appointed a federal negotiator to meet with First Nation leaders in the Maritime provinces to determine what a “moderate livelihood” means to them.
One-day trial held before crown requests stay of charges
All four men were charged with fishing for lobster in Lobster Fishing Area (LFA) 34 during a closed season and being in possession of lobster that was either illegally purchased or caught illegally for the purpose of selling. Alex McDonald and Mark Howe were also charged with violating the terms of an Aboriginal communal fishing licence that was issued by DFO to the Sipekne’katik Band at the time.
DFO alleged the Mi’kmaw fishermen were in possession of a total of 1009 lobsters which came off Alex McDonald’s fishing boat, named Buck and Doe, when it docked at the wharf in Saulnierville, N.S. on Sept. 24, 2015.
According to DFO, Sipekne’katik band members were permitted to fish lobster for food, social and ceremonial purposes in LFA 34. Each member was permitted to have three lobster tags and fish up to 20 lobsters per tagged trap per day.
During the trial, four DFO fishery officers testified they pulled over two trucks driven by Alex McDonald and his son, Kyle, shortly after they left the wharf. The officers testified that the two trucks were carrying eleven crates filled with live lobsters.
The officers testified they took possession of the crates and informed the four fishermen they were taking the crates to a nearby beach to count the lobsters. Once all the lobsters were counted, 240 were returned to the fishermen and the remaining 769 were returned to the ocean.
Under cross-examination, Michael McDonald asked all four fishery officers whether they noticed if the lobster traps had food fishery tags on them. All four testified they couldn’t answer that question because they did not see the lobster traps that were used by the fishermen that day.
DFO fishery officer Dwayne Muise testified under cross-examination that he did not know how long McDonald’s boat was in the water in St. Mary’s Bay that day nor did he know if the boat left LFA 34 waters.
“I don’t know when (Alex McDonald) left so he could have fished anywhere in Nova Scotia for that matter,” Muise testified.
When McDonald asked Muise if the closed time for LFA 34 includes those Mi’kmaw fishermen who choose to fish for a moderate livelihood, Muise answered, “There’s no regulation to deal with moderate livelihood right now.”
After crown attorney Alex Pink finished calling witnesses, Judge MacDonald adjourned the trial until Feb. 23 so defence lawyer Michael McDonald could call expert witnesses. However, the crown gave notice in a letter dated Feb. 14 that it “will not be proceeding with the prosecution or seeking convictions against any of the accused.”
A DFO spokesperson in Ottawa declined to provide a comment regarding this court case. Instead, he referred media inquiries to the Public Prosecution Service of Canada. When contacted by Ku’ku’kwes News, Sarah Newton, a prosecutor with the Atlantic Regional Office of the Public Prosecution Service of Canada, wrote in an email that she exercised her “prosecutorial discretion” in seeking a stay of the charges.
“I opened a can of worms” – Michael McDonald
Michael McDonald said he was disappointed the crown asked for a stay of the charges because he wanted to bring up the treaty right to a “moderate livelihood” in court.
“I think that they withdrew it because they didn’t want to take it on, Michael McDonald said. “I opened a can of worms that they didn’t want to open.”
Meanwhile, Alex McDonald echoes his younger brother’s disappointment that the charges were stayed.
“Through all of this, we should have had an answer from the court,” Alex McDonald said. “The charges are dropped and they’re still charging other people,” he said.
“If there was justice served with some answers from the court, they wouldn’t be harassing people today,” Alex McDonald added.
Michael McDonald advises any Mi’kmaw, Wolastoq and Peskotomuhkati fisher who wants to exercise his or her treaty right to fish for a living to not use DFO-issued food fishery tags.
“Do not fish with (food fishery) tags because as soon as you do, you fall underneath regulations and you’re opening up an opportunity for DFO to come and regulate your fisheries,” Michael McDonald explained.
“There’s no regulation on moderate livelihood fisheries. Fish either with no tags or create livelihood tags,” he said.
