More than 50 Mi’kmaw fish harvesters from Nova Scotia and New Brunswick are currently before the courts in Nova Scotia on fishery-related offences.
The charges range from fishing for lobster or elver eels without authorization, failing to use lobster tags issued by Fisheries and Oceans Canada, or DFO, and obstructing a fishery officer in his or her duties.
Trials for 23 fishers are currently underway or are set to begin in provincial courts in Annapolis Royal, Bridgewater, Dartmouth, Digby, Port Hawkesbury and Yarmouth.
Nearly half of the harvesters charged have informed the courts they intend to defend themselves by arguing they have a treaty right to catch and sell fish to earn a moderate livelihood.
Robert Syliboy, 29, is one of five fishermen from the Sipekne’katik First Nation near Shubenacadie, N.S. currently on trial for illegally fishing for elver eels, or baby eels, in March 2021. Syliboy is also charged with obstruction.
Syliboy says he and his fellow fishermen shouldn’t have been charged in the first place for practicing their treaty rights.
“I don’t think today, in 2023, we should be still at this point where we’re so far past the Marshall decision,” Syliboy said following day one of his trial in Dartmouth Provincial Court on Sept. 19.
“It’s hard for me to have to fight this but it’s very easy for me to want to fight this,” he added.
Limit or infringement of treaty right needs to be justified
The treaty right to catch and sell fish to earn a moderate livelihood was affirmed by the Supreme Court of Canada in September 1999 in the Donald Marshall, Jr., fishing rights case.
The high court ruled the Peace and Friendship Treaties of 1760-61 that the Mi’kmaq, Wolastoqiyik and Peskotomuhkati signed with the British Crown were valid and the moderate livelihood treaty right was guaranteed within it.
However, the Supreme Court of Canada issued a clarification of its initial ruling two months later, stating that the federal government can regulate the moderate livelihood treaty right but only for conservation or other public objectives.
The court also clarified that any limit or infringement of that treaty right, which is also a communal right, has to be justified and done in consultation with the affected First Nations.
Affected rights holders not consulted, defence lawyer argues
Jeremiah Raining Bird is a Halifax-based lawyer who represents two Mi’kmaw fishermen from the Eskasoni First Nation, N.S. charged with illegally fishing for elver eels in May 2020.
Cregg Battiste, 31, and Kevin Bernard, 27, are accused of violating a DFO 2020 fisheries management order that closed the elver eel fishery for a period of 90 days.
The fishermen’s trial got underway in Dartmouth Provincial Court on May 2 and resumes on Oct. 25.
Raining Bird says that while the DFO order may have quelled some unrest between commercial fishers and Indigenous fishers in 2020, it also infringed on his clients’ treaty rights.
“What we’d be arguing is that the order that was put in place was done without consultation with affected rights groups,” Raining Bird said.
“So we would argue that the order itself and the process by which the order was put in place was a flawed process,” he explained.
Won’t “experience rights in my lifetime” – Matthew Cope
Matthew Cope is another Mi’kmaw fisherman currently fighting fishery charges against him in Digby Provincial Court.
Cope, who is from the Millbrook First Nation near Truro, N.S. is accused of fishing for lobster during a closed commercial season in August 2020.
Cope says he resents that Mi’kmaw fishermen like himself have to go back to court to prove they have a constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood.
“I’d say it’s pretty insulting. These (rights) have been affirmed,” Cope said following the start of his trial in November 2022.
“With all this awareness being put on this fishing, I can’t believe that I’m still even here having to argue the fact that we’re allowed to fish,” he said.
“I was 14 years old when the Donald Marshall, Jr., decision was made. It’s been 20-something years now. I’m 36 years old. If I keep waiting, I won’t get to experience my rights in my lifetime,” he added.
Number of Mi’kmaw fishers charged “unusually high” – Naiomi Metallic
Naiomi Metallic, an associate professor at Dalhousie University’s Schulich School of Law, said the number of Mi’kmaw fishers currently before the courts is unusually high.
“This is the stuff that ought to be dealt with in negotiations and not through the courts,” Metallic said.
Charging more than 50 Mi’kmaw fishers and holding trials is a lot for a court system that’s already under-resourced, she explained.
“It’s a massive amount of judicial resources being thrown at this for what is effectively a political negotiations issue,” she said.
When asked about the high number of Mi’kmaw fish harvesters currently before the courts in Nova Scotia, DFO spokesperson Lauren Sankey stated that “all fishing activity is subject to compliance verification by fishery officers.”
“Fishery officers take a variety of enforcement approaches, which includes education, issuing warnings and/or laying charges, depending on their assessment of the situational factors,” Sankey wrote in an email.
“Any fishing activity occurring without a required licence or not in compliance with conditions of licence is subject to enforcement action,” she added.
“It’s an uneven game” – Jeremiah Raining Bird
Of the 54 Mi’kmaw fishers who have been charged with fishery-related offences, 16 of them have informed the court they are still seeking lawyers to represent them.
Bench warrants have been issued to ten other harvesters for failing to appear in court.
Raining Bird says the charges against his clients and other Indigenous fishers impose “a significant burden and cost and time on them in responding to the charges.”
“At the end of the day, these are just individuals with limited resources. The federal government has unlimited resources and it’s an uneven game,” Raining Bird said.
“If you want to fight and try and uphold and say that you have these rights, the federal crown is not going to even admit that they exist,” he said.
With the high number of court cases like his before the courts, Cope says Mi’kmaw leaders in Nova Scotia need to be more involved in defending the moderate livelihood treaty right.
“I think all the chiefs and councils need to get together and fight this head-on,” Cope said.
The Assembly of Nova Scotia Mi’kmaw Chiefs confirmed to Ku’ku’kwes News it is providing legal counsel for one lobster fisherman from the Potlotek First Nation in his defence of the fishery charges against him.
Cope says the Millbrook First Nation has hired a law firm to represent him when his trial resumes in May 2024. A spokesperson for Millbrook First Nation did not respond to Ku’ku’kwes News to confirm this.
Metallic also questions whether the federal government is committed to reconciliation with Indigenous people while all of these treaty-related cases are before the courts.
“In a time where the (federal) government is committed to the United Nations Declaration on the Rights of Indigenous Peoples, which lays these down as fundamental human rights of Indigenous peoples, when are we going to get to a point where we’re really taking this stuff seriously?” Metallic asks.
“Charging all these people, that doesn’t seem like a way to achieve real reconciliation here.”