A trial involving three Mi’kmaw fishermen who say they were exercising their treaty right to fish for a living when they were charged with fishery offences is currently underway in Digby, N.S.
James Nevin, 38, Logan Pierro-Howe, 24, and Leon Knockwood, 27, from the Sipekne’katik First Nation are each charged with four counts of violating the Aboriginal Communal Fishing Licenses Regulations and the Atlantic Fishery Regulations under the Fisheries Act.
They’re accused of fishing and catching lobster without authorization as well as possessing lobster traps that either had unauthorized tags or no tags on them.
According to court documents, the alleged offences occurred on Nov. 26, 2018, at a wharf in Weymouth, N.S.
All three fishermen say they have a constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood. They argue that the right was affirmed in the 1999 Supreme Court of Canada ruling in the Marshall fishing rights case.
The fishermen’s lawyer, Michael McDonald, explained that because his clients are challenging the charges on constitutional grounds, their trial is divided into two parts.
According to McDonald, his clients must first either agree or be found guilty of committing the offences before moving on to the constitutional challenge portion of the trial.
McDonald says instead of submitting an agreed statement of facts with the crown, his clients chose to leave it to the federal crown attorney to prove the case against them first.
“If they can prove that my clients (committed the fishery offences), then we’ll go on to the Aboriginal rights part,” McDonald explained.
DFO fishery officers testified in trial
During the one-day trial on Sept. 1, crown attorney Hugh Robichaud called six witnesses to testify which included four fishery officers with Fisheries and Oceans Canada.
The fishery officers testified about their involvement in arresting Nevin, Pierro-Howe and Knockwood at the wharf in Weymouth and seizing their traps, crates, lobster catch and pickup truck.
The officers testified that they saw the fishing vessel, The Evening Star 2, arrive at the wharf in Weymouth on the morning of Nov. 26, 2018. They told the court they witnessed the defendants offload 21 lobster traps and 12 crates from the boat and place some of them onto the wharf and the back of a pick-up truck.
The officers said that some of the lobster traps either did not have valid tags or no tags attached.
They also testified that lobsters in the crates were in excess of the amount each fisherman was allowed to catch under the food, social and ceremonial communal fishing licence issued to the Sipekne’katik First Nation for 2018-2019.
Officer Bobbi Childs told the court that the fishermen “were placed under arrest and then the lobster, the traps were seized as well as the truck.” She testified the fishermen were in possession of 1,004 lobsters with a total weight of 1, 328 pounds.
Officer Erin Patrick testified the fishermen were only allowed 90 lobsters each under the FSC licence.
After the lobsters were counted and weighed, Officer Jacklyn Titus testified she helped with releasing the lobsters back into the water in Digby.
“Have you read the Marshall decision?” – McDonald
Under cross-examination, McDonald questioned the officers about the food, social and ceremonial fishing licenses and the treaty right to fish to earn a moderate livelihood.
McDonald asked each officer if they personally witnessed his clients remove the lobsters from the traps with FSC tags while out on the water. They all answered no to the question.
McDonald then asked the officers about the Fisheries Act and whether the act in 2018 contained any regulations that governed moderate livelihood fishing activities.
“As a fishery officer, I’m guided by the Fisheries Act, and at that time, there was, the only valid fishery was food, social, and ceremonial fishery for the three individuals,” Officer Childs testified during cross-examination.
“But there was nothing regarding livelihood fishing?” McDonald asked.
“Not under the authority of the Fisheries Act,” Childs replied.
When asked the same question, Officer Patrick testified that “if it’s not within the regulations of the act, then I interpret that as being fishing without authorization contrary to the act.”
“Have you read the Marshall decision?” McDonald asked Patrick.
“I have not read it in its entirety,” Patrick replied.
McDonald informed Patrick that in the Marshall decision, the Supreme Court justices “stated that if there were no guidelines within the Fisheries Act, then Mr. Marshall could not be charged.”
“I’m not aware of that part of the decision,” Patrick replied.
Other witnesses who testified on behalf of the crown included Jemie Lent, who was DFO Aboriginal coordinator in southwestern Nova Scotia and Denise McDonald, who was the Fishery Manager’s assistant for the Sipekne’katik First Nation.
Both witnesses were asked about details of the food, social and ceremonial fishing licence for lobster that was issued by DFO to Sipekne’katik in 2018.
Following the trial, fisherman James Nevin said he is hopeful the charges will be dismissed.
“I think it went well. I think our lawyer asked the right questions,” he said outside of the courthouse in Digby.
Final arguments in the trial are scheduled to take place before Judge Timothy Landry on Oct. 18.