Mi’kmaw fisherman using 1752 treaty, ancestry in legal battle with DFO

Matthew Cope, 36, aboard his lobster boat, Mystique Lady, in Digby, N.S./Photo by Stephen Brake

A Nova Scotia Mi’kmaw fisherman says he has a constitutionally protected treaty right to catch and sell fish because he is a direct descendant of the Mi’kmaw Grand Chief who signed one of the Peace and Friendship treaties with the British Crown in the 1700s.

Matthew Cope, 36, of the Millbrook First Nation near Truro, N.S. says he has proof Mi’kmaw Grand Chief Jean Baptiste Cope, who signed the Peace and Friendship Treaty of 1752 on behalf of the Mi’kmaq, is his direct relative.

“So I have a 50-page lineage that was done up by the Confederacy (of Mainland Mi’kmaq). And it took years to make where it shows that I’m a direct descendant of Jean Baptiste Cope. So I am, in fact, the tribe of Indians that 1752 treaty signed for,” Cope explained.

The Mi’kmaw fisherman says he intends to use this evidence to fight federal fishery charges against him in Digby Provincial Court. He is currently representing himself against charges that he illegally fished for lobster in waters near Digby during a closed commercial fishery.

According to court documents, the alleged offences happened in August 2020 but the Department of Fisheries and Oceans didn’t officially charge Cope until February 2021.

Matthew Cope outside of Digby Provincial Court on July 19, 2022/Photo by Stephen Brake

Cope, who doesn’t deny setting the lobster traps, says his treaty right to catch and sell fish is protected because the Canadian constitution states that treaty rights are recognized and affirmed. He argues that by charging him, DFO is infringing on his treaty rights.

“I’m saying my 1752 treaty rights give me the right to fish unhindered, freely and to sell that catch,” Cope said.

Cope’s trial was scheduled to begin in Digby on July 19 but crown attorney Alex Pink asked to be removed from the case due to his law firm’s conflict of interest with previously representing Cope on other legal matters.

Cope is back in court on Aug. 8 to set a new date for a trial.

“Free liberty of hunting and fishing as usual”

The Peace and Friendship Treaty of 1752 was signed between the Mi’kmaq and the British Crown in Halifax on Nov. 22, 1752. Jean Baptiste Cope, who was the Grand Chief of the Mi’kmaw Nation at the time, lived at a settlement along the banks of the Shubenacadie river when he signed the treaty on behalf of the Mi’kmaq.

According to article four of the treaty, it states that the Mi’kmaq “shall not be hindered from, but have free liberty of hunting and fishing as usual.” The article also states the Mi’kmaq may construct a “truckhouse” along the river “or any other place of their resort” to trade and sell provisions and goods in “Halifax or any other settlement within the province.”

In 1985, the Supreme Court of Canada ruled in the Simon hunting rights case that the 1752 treaty “continues to be in force and effect.” James Simon, a member of the Sipekne’katik First Nation in Nova Scotia was charged in 1980 for hunting out of season without a license.

Simon argued that he didn’t need a hunting license or follow provincial hunting regulations because he had a treaty right to hunt under the 1752 treaty. The Supreme Court of Canada agreed and acquitted him of the charges.

Matthew Cope reviews his court documents in his legal battle with DFO/Photo by Stephen Brake

Cope says that due to his direct ancestry, the 1752 treaty is more applicable to his current situation than the Peace and Friendship Treaty of 1760-61 which was used in the 1999 Marshall fishing rights case.

In that case, the Supreme Court of Canada ruled that Donald Marshall Jr. from the Membertou First Nation had a treaty right to catch and sell fish to earn a moderate livelihood.

However, in a subsequent clarification ruling two months later, the Supreme Court ruled that any fishery under the treaty right could be regulated if the regulations are justified for conservation or other public objectives.

“I’m being criminalized and vilified for exercising my treaty rights” – Cope

Cope has asked the Millbrook chief and council in the past to help him in his legal battle against DFO. He says he has not received an official response.

In the 1985 Simon hunting rights case, Simon was represented by the tribal organization, the Union of Nova Scotia Mi’kmaq. In the 1999 Marshall fishing rights case, Marshall was represented by two tribal organizations, the Union of Nova Scotia Mi’kmaq and the Confederacy of Mainland Mi’kmaq.

Matthew Cope at home in Millbrook First Nation, N.S./Photo by Stephen Brake

Cope says Mi’kmaw leaders should be helping fishermen like himself who are fighting these charges in court.

“Right now, I’m being criminalized and vilified for exercising my treaty rights,” he said. “But here I am taking this battle on myself.”

Millbrook Chief Bob Gloade or the Assembly of Nova Scotia Mi’kmaw Chiefs didn’t respond to Ku’ku’kwes News’s request for comment regarding Cope’s court case.

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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.