A Mi’kmaw fisherman from Nova Scotia is seeking permission from a provincial court judge to challenge fishery offences against him on constitutional grounds.
Cory Francis, 53, from the Acadia First Nation near Yarmouth, N.S. argues that his aboriginal and treaty rights to catch and sell American eels are constitutionally protected and the charges against him should be dismissed.
Section 35 of the 1982 Constitution Act states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
Before Francis can present that argument in a trial, a judge first needs to approve his notice to the court regarding his constitutional challenge.
“They stormed in and they seized everything” – Cory Francis
Francis said he was fishing for eels along the East River near Chester, N.S. with another Mi’kmaw fisherman on April 30, 2020, when officers with the Department of Fisheries and Oceans arrived and seized their catch.
“They knew I was there because I didn’t hide any secret from them that I was exercising my section 35 Aboriginal treaty rights for FSC (food, social and ceremonial) and moderate livelihood fisheries,” Francis said.
“They stormed in and they seized everything. They said we couldn’t do it. They said that DFO, under the Fisheries Act, had issued and posted a fishery management order approved by the minister and we had to follow it,” he explained.
According to that order, which was issued on April 27, 2020, and signed by then DFO Minister Bernadette Jordan, it prohibited anyone from fishing for eels less than ten centimetres in length in Nova Scotia and New Brunswick for conservation and safety reasons for a period of 45 days.
Francis said he went fishing again a few days later with a few other Mi’kmaw fishermen in Gold River, N.S. when DFO officers arrived once again and seized his nets, which were tagged.
According to court documents, Francis and seven other Mi’kmaw fishermen from Sipekne’katik First Nation, Millbrook First Nation and Eskasoni First Nation were charged a year later with illegally fishing for eels under ten centimetres. Francis was charged with two counts of violating the Fisheries Act.
If found guilty, each fisherman could face a fine of up to a maximum of $500,000 and/or two years in prison for each count.
Earlier this year, Francis was granted a court order to sever his two charges from the other fishermen charged so he could merge his two fishery charges into one trial and represent himself in court.
“I’ve continued a cultural way of life” – Cory Francis
According to Francis’s notice application for the constitutional challenge, he states that the charges against him violate sections of the Charter of Rights and Freedoms, the Constitution Act, the Bill of Rights and the Fisheries Act that affirm aboriginal and treaty rights.
Francis argues that his fishing activities were lawful because he was exercising his rights to fish for food, social and ceremonial purposes, and for a moderate livelihood fishery.
“Since I was born, my dad took me in the woods. I’ve continued a cultural way of life as a Mi’kmaw tradition,” Francis said.
“I’ve always accessed the natural world for all different sorts of species for the benefit of individual family and community. So this was just a natural extension and continuation, even if DFO or anyone else thinks it wasn’t, it is,” he added.
Francis argues two Supreme Court of Canada court decisions, Sparrow and Marshall, affirm his aboriginal and treaty rights to fish for food and to also sell his catch.
In 1990, the Supreme Court of Canada ruled that Ronald Sparrow, a member of the Musqueam First Nation in British Columbia, had an aboriginal right to fish for food that was never extinguished because his First Nation never signed a treaty.
In the 1999 Marshall decision, the Supreme Court of Canada ruled that Mi’kmaw fisherman Donald Marshall, Jr., had a treaty right to catch and sell the eels he caught to earn a moderate livelihood under the Peace and Friendship Treaty of 1760-61.
“American eel is a culturally significant species. Just look at Marshall,” Francis said.
He also accuses the federal government of not upholding “a legal duty to consult with Aboriginal peoples and accommodate their interests in the American eel fishery.”
Francis further argues that the federal government has not provided him or the Acadia First Nation with any “formal justification” for infringing on his constitutionally protected rights to catch and sell fish. He adds that DFO has not offered any “science and safety evidence anecdotally used to justify the closure of the elver fishery in 2020/2021.”
If Francis is granted permission from the court to pursue his constitutional challenge as a defence, he says he’ll be required to trace his family lineage to prove that he has aboriginal and treaty rights.
“I have to first prove that I’m Mi’kmaw and I have a right in that area for that species of fish I was fishing.”
A court hearing for Francis’s constitutional challenge notice takes place today in provincial court in Bridgwater, N.S.