Closing arguments heard in Mi'kmaw lobster fishermen case

A provincial court judge will rule in January whether three Mi'kmaw men were guilty of illegal fishing when they landed hundreds of kilograms of lobster at a Weymouth, N.S., wharf in November 2018.

Closing arguments were delivered Tuesday in Digby provincial court.

The Crown said it was a clear violation of communal licence conditions, while the lawyer for the fishermen argued they were exercising treaty rights.

Logan Pierro-Howe, James Wallace Nevin and Leon Knockwood are accused of three fisheries violations when they landed 21 traps and 13 crates of lobster weighing 602 kilograms from the fishing boat Evening Star 2 at Weymouth on Nov. 26, 2018.

Crown lawyer Hugh Robichaud said it exceeded the three-trap, 40.8-kilogram daily limit contained in the food, social and ceremonial licence held by two of the men.

"That amount of lobsters is clearly beyond the [food, social and ceremonial licence] limits," Robichaud told provincial court Judge Tim Landry.

Michael MacDonald, appearing on behalf of Pierro-Howe, Nevin and Knockwood, said it is common practice to return found traps to a wharf. He said none of them touched the lobster after it was landed. He also said there is no proof to indicate under which licence the crustaceans were caught.

The rest of his remarks were based on constitutional claims.

MacDonald said Sipekne'katik First Nation leadership had authorized a moderate livelihood fishery "and to me, your honour, that would be the authorization that they require from the band," MacDonald said.

Moderate living

The arrests, he said, interfered with their court-recognized treaty right to fish for a moderate living.

He also asserted that conditions on the food, social and ceremonial licence were imposed by the Department of Fisheries and Oceans without adequate consultation as required under the Canadian Constitution.

"The limit placed upon Mi'kmaq in LFA [lobster fishing area] 34 is not only a prima facie infringement that cannot be justified, it is also unconstitutional and therefore should be struck down by the court," MacDonald said.

The Crown did not address constitutional questions in its arguments.

What happens next

Landry said he will deliver a verdict Jan. 9, 2023, on whether the Crown had proved the men violated fisheries acts.

If they are found guilty, Landry said Supreme Court of Canada jurisprudence obliges him to provide the defence with "a further opportunity to address any further evidence you might want to call. That's the procedure outlined in Marshall 2," Landry said, referring to the landmark 1999 case affirming moderate livelihood treaty rights.

Landry said at that point the Crown could respond to the constitutional questions.