Nova Scotia Mi’kmaw fishermen sue DFO for racial profiling, infringing on treaty rights

Alex McDonald, left, and Mark Howe are two of four Mi'kmaw fisherman suing DFO for racial profiling, infringing on their treaty rights/Photo by Stephen Brake

Four Mi’kmaw fishermen from Nova Scotia are suing the Department of Fisheries and Oceans for charging them with fisheries violations and seizing their catch in 2015.

Mark Howe, 59, Jeremy Syliboy, 36, Alex McDonald, 57, and his son, Kyle McDonald, 28, accuse DFO fishery officers of racial profiling and infringing on their treaty right to commercially fish to earn a moderate livelihood.

Howe, Syliboy and Alex McDonald are from the Indian Brook First Nation near Shubenacadie, N.S. and members of the Sipekne’katik band. Alex McDonald’s son, Kyle, is a member of the Millbrook First Nation near Truro, N.S.

“It’s to get the message out that the Department of Fisheries and Oceans needs to stop abusing their power,” Alex McDonald said in an interview.

“It’s outright harassment, discrimination and its abuse, an abuse of power,” he added.

In their statement of claim which was filed on Feb. 7 at Nova Scotia Supreme Court in Halifax, the four fishermen are seeking compensation for loss of income, out of pocket expenses, pain, suffering, inconvenience and loss of amenities.

Howe said fighting the fishery violations in court for nearly three years has affected his physical and mental health.

“To be yanked off the water cost me my marriage, my son. He’s moved out. Now I’m just an old man living on a welfare cheque when I should be out on the water. I can work,” Howe said.

DFO has yet to respond to the fishermen’s lawsuit. When contacted, a DFO spokesperson in Ottawa stated it would be inappropriate to comment on a case that’s before the courts.

Fishermen charged with illegal fishing in Sept. 2015

According to court documents filed at Digby Provincial Court, the fishermen were charged with fishery violations after they were pulled over by DFO fishery officers on Sept. 24, 2015, near Saint Bernard, N.S.

The men were charged with commercially fishing 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 Howe were additionally charged with violating the terms of an Aboriginal communal fishing license that was issued by DFO to the Sipekne’katik First Nation at the time.

The DFO officers seized a total of 1009 lobsters from the fishermen and returned 240 lobster to the fishermen. According to DFO, each of the fishermen were allowed to have three Aboriginal food fishery lobster tags and fish up to 20 lobsters per tagged trap per day. The remaining 769 lobsters were released back into St. Mary’s Bay.

Digby Provincial Court/Photo by Stephen Brake

All four fishermen pleaded not guilty and a trial got underway in Digby, N.S. on Feb. 9, 2018. The men hired Alex McDonald’s younger brother, Michael McDonald, to represent them in court.

Michael McDonald, 49, argued his clients were exercising their treaty right to fish for a moderate livelihood, not fishing under Aboriginal food fishery regulations. He stated the Mi’kmaw fishermen did not tag their lobster traps with food fishery tags that were issued by their respective First Nations, Sipekne’katik and Millbrook.

During cross-examination, four fishery officers testified that did not notice if the fishermen’s lobster traps had Aboriginal food fishery tags attached to them. One officer testified he wasn’t sure how long Alex McDonald’s boat, Buck and Doe, was in St. Mary’s Bay that day or if the boat left LFA 34.

When the fishermen’s lawyer asked fishery officer Dwayne 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 one day of testimony, the crown attorney sent a letter to Judge Claudine MacDonald on Feb. 14, 2018, requesting for a stay of proceedings.

“Nothing short of racial profiling”

In their statement of claim, the Mi’kmaw fishermen allege that DFO fishery officers only pulled them over in Sept. 2015 because they are First Nation people.

“The plaintiffs feel that the defendant’s DFO fishery officers’ motives in pulling them over that day was nothing short of racial profiling,” the claim states.

“They know we’re Natives. They know what we were doing. They know we were fishing. They knew we had a right to be there but yet, they stopped us and charged us for illegal fishing,” Alex McDonald explained.

“They put us out there like we were hardened criminals, you know, for practicing our Aboriginal and treaty rights. To me, that’s profiling,” he said.

Mark Howe is a Mi’kmaw fisherman from Indian Brook First Nation, N.S./Photo by Stephen Brake

The fishermen also claim the seizure of their lobster catch infringed on their “constitutionally protected treaty right which was affirmed in Marshall, that Mi’kmaq have a right to catch and sell fish for a moderate livelihood.”

In 1999, the Supreme Court of Canada overturned a conviction of Donald Marshall, Jr., a Mi’kmaq from the Membertou First Nation who was charged with catching and selling eels without a license near Pomquet Harbour, N.S. The Supreme Court justices ruled that Marshall had a treaty right to earn a moderate livelihood from the commercial fishery under the Peace and Friendship Treaties of 1760-61 signed between the Mi’kmaq and the British Crown.

“These rights cannot be infringed unless for conservation purposes and giving the amount of commercial lobster licenses in that area and the amount of lobster being caught each year commercially, there is no justifiable infringement that the defendant can use for the defendant’s DFO fishery officer’s actions that day,” the claim states.

“We have a right to be there. We have a right to sell the species that we catch and they’re stopping us. If that’s not infringement, then, what is it?” Alex McDonald said.

Howe said for him, the lawsuit is to send a message to DFO to stop harassing Mi’kmaw fishermen like himself who want to exercise their treaty right.

“We are full-blooded Mi’kmaq and to just honour our rights, you know, and stop all of this,” Howe explained.

“Enough’s enough. If this is what it takes to tell them to back off, so be it,” he added.

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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.