A legal advisor for the Assembly of Nova Scotia Mi’kmaq Chiefs says the outcome of a recent court case involving Mi’kmaw fishermen charged with illegally lobster fishing shouldn’t affect negotiations between the assembly and the Department of Fisheries and Oceans.
“(The court) case is present-day, on-the-record, in the real world, where there is no DFO regulated moderate livelihood fishery designated as such,” Bruce Wildsmith said.
“The negotiations are off-the-record, about what might happen in the future, based on some form of Mi’kmaq regulatory scheme for an aggregate moderate livelihood fishery,” he added.
“Every court case has its risks” – Bruce Wildsmith
Four Nova Scotia Mi’kmaw fishermen were charged in Sept. 2015 for illegally catching lobster during a closed commercial season and violating an Aboriginal food fishery license in Lobster Fishing Area (LFA) 34 in southwestern Nova Scotia.
The fishermen pleaded not guilty and a trial got underway in Digby, N.S. in February. Their lawyer, Michael McDonald, argued that his clients were not guilty because they were not participating in the Aboriginal Food Fishery which sets daily limits on their catch.
McDonald argued his clients were exercising their treaty right to earn a moderate livelihood from the commercial lobster fishery.
The fishermen relied on the 1999 landmark Supreme Court of Canada decision in the Donald Marshall, Jr. fishing rights case as their defence. In that ruling, the high court ruled that the Mi’kmaq, Wolastoqiyik and Peskotomuhkati have a treaty right guaranteed under the 1760-61 Peace and Friendship treaties to earn a moderate livelihood from the commercial fishery.
Under cross-examination, four DFO fishery officers testified that did not see the traps the Mi’kmaw fishermen used to catch the lobster that day so they couldn’t say whether the traps had either food fishery tags, moderate livelihood tags or no tags at all.
After one full day of testimony, the crown asked the court for a stay on the charges before the lawyer for the fishermen could call expert witnesses to testify on their behalf. When contacted, a prosecutor with the Public Prosecution Service of Canada would only say that she exercised her “prosecutorial discretion” in seeking a stay of the charges.
“Every court case has its risks as to what the judge will decide in how far or long you end up in a process that could conceivably go to the Supreme Court of Canada,” Wildsmith said about the crown’s decision to ask for a stay of the charges.
“I think you have to tie their decision into the complexities of litigation. You have to tie into the fact that there are these negotiations. You have to tie it into the risk that there would be a positive decision for the Aboriginal fishers,” he explained.
Creating a short-term treaty-related measure for an aggregate fishery
In Nov. 2017, the Department of Fisheries and Oceans appointed longtime public servant J.B. (Jim) Jones as a federal negotiator to meet with First Nation leaders in the Maritimes and Quebec to begin talks on defining what a “moderate livelihood” fishery means to them.
So far, Jones has met with all First Nations but one since his appointment. In Nova Scotia, the Assembly of Nova Scotia Mi’kmaq Chiefs has set up a steering committee to work with Jones on defining a moderate livelihood. The steering committee includes the assembly’s own lead negotiator, lawyers and the executive director for the Kwilmu’ku Maw-klusuaq Negotiation Office.
According to Wildsmith, both sides are working towards two main objectives in negotiations to determine what a ‘moderate livelihood” means to the Mi’kmaq in Nova Scotia.
The first objective is to create a rights reconciliation arrangement which would apply to all areas of negotiation with both the federal and provincial governments. The second objective would be to create a short-term process called a treaty-related measure (TRM).
“That’s intended to be a shorter term to trial run how an aggregate fishery would be governed by the Mi’kmaq and how it would be rights-based,” Wildsmith said.
Wildsmith said staff with Kwilmu’kw Maw-klusuaqn Negotiation Office is preparing to visit First Nation communities in Nova Scotia in the coming months to hear from community members on their ideas on a moderate livelihood fishery.