A Nova Scotia provincial court judge has dismissed fishery charges against three Mi’kmaw lobster fishermen who argued they had a constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood.
In his decision in Digby Provincial Court, Judge Timothy Landry said the federal crown failed to provide evidence to prove the fishermen, all from the Sipekne’katik First Nation, did not have any other legal authority under the Fisheries Act to fish for lobster.
“In order for me to know that (the fishermen) possess fish that were caught contrary to the Fisheries Act, I have to know that they don’t have the authority to fish in any other fashion, which I don’t,” Judge Landry said in court before issuing his ruling on Monday.
To date, there are no sections in the federal Fisheries Act that directly regulate the treaty right to a moderate livelihood fishery.
James Nevin, one of the three fishermen charged, said he was “ecstatic” and “excited” over Judge Landry’s ruling.
“It’s going to open a lot of doors for all of us, you know, our Mi’kmaw fishermen in the whole province,” Nevin said following the decision.
Fishermen were charged in 2018
Nevin, 38, along with Leon Knockwood, 27, and Logan Pierro-Howe, 24, were charged with illegally fishing for lobster near Weymouth, N.S. in Nov. 2018.
The federal crown alleged the fishermen violated the Fisheries Act by not following a food, social and ceremonial (FSC) communal license that Fisheries and Oceans Canada issued to Sipekne’katik for 2018-19 fishing season.
The crown also alleged the fishermen fished for lobster during a closed commercial season.
The fishermen pleaded not guilty and their lawyer, Michael McDonald, filed a notice to the court they intended to use their moderate livelihood treaty right as a defence and challenge the charges on constitutional grounds.
According to McDonald, the fishermen chose not to submit an agreed statement of facts and instead forced the federal crown to prove they violated the Fisheries Act before constitutional arguments could be presented.
A one-day trial was held in Sept. 2022 and closing arguments took place in Oct. 2022.
With Judge Landry dismissing the charges against the fishermen, this means the constitutional challenge will not happen.
“The crown couldn’t prove beyond a reasonable doubt … because they couldn’t prove there’s no other fishery my clients could fish under,” McDonald said following the court ruling.
“In order to be charged with an offence, there has to be some law in place (in the Fisheries Act) that you’re breaching and there’s nothing in place,” he said.
Nevin said a lot of weight was lifted off his shoulders now that the charges against him and his fellow fishermen have been dismissed. He said dealing with this court case has affected his personal finances and mental health.
“A few months back, I was suffering from a real bad depression thinking about this all the time,” Nevin said. “It’s been over four years,” he added.
McDonald said now that the charges have been dismissed against his clients, he intends to file a lawsuit against DFO on their behalf seeking damages for racial profiling, harassment, loss of earnings, seizure of fishing equipment and a vehicle, travel expenses to attend court as well as pain and suffering.
More fishery trials scheduled for this year
Meanwhile, McDonald says he intends to apply the same legal strategy in another fishery trial involving two Mi’kmaw fishermen from the Pictou Landing First Nation. That trial is scheduled to take place in Pictou Provincial Court on Jan. 19.
The Pictou trial is one of seven trials scheduled to take place this year in Nova Scotia courts involving 14 Mi’kmaw harvesters who are charged with either illegally fishing for lobster or elver eels.
Seventeen other Mi’kmaw harvesters are before the courts in the province but their cases are either at the arraignment or election and plea stage.
McDonald’s advice to those Mi’kmaw harvesters currently before the courts is not to sign any agreed statement of facts if they want to use the moderate livelihood treaty right as a defence against fishery charges.
“Whatever you do, do not have your lawyers sign an agreed statement of facts. Do not agree to anything because we have a right,” McDonald said.
“We have a right that was afforded to us by the Marshall decision. It’s a treaty-based right. It was affirmed by the Supreme Court of Canada, that we have a right to fish for a moderate livelihood,” he said.