Elver case involving 5 Mi'kmaw men ends with single guilty plea to obstruction

The federal Crown has halted its prosecution of five Mi'kmaw men accused of unauthorized elver fishing three years ago on Nova Scotia's Eastern Shore, after one pleaded guilty to obstructing a fisheries officer and was fined $1,500.

The five men had claimed a treaty and Aboriginal right to fish for the tiny juvenile eels, which have become a highly lucrative export, but last week a federal prosecutor said Fisheries Act charges against them related to elver fishing should be stayed.

It was not clear in Halifax provincial court why the Crown decided to change course in the case, but prosecutor Mark Donohue said the stay "should not be perceived as an acceptance of the defendants' claims of a constitutional right to fish for elvers."

The elver fishery has become highly contentious in recent years, with violence, intimidation and threats along riverbanks in Nova Scotia and New Brunswick. Unauthorized fishing has surged due to demand from Asia, where the eels are raised for food.

Earlier this year, the federal fisheries minister cancelled the spring season, citing concerns about violence and conservation. However, harvesting has continued and federal fisheries officers have made dozens of arrests.

The case in provincial court last week dates to March 30, 2021, at Smiths Settlement, N.S. A trial began this fall to determine the facts of what happened, and whether the men had violated the federal Fisheries Act, but it was not completed.

In a brief statement of facts, Donohue said fisheries officers observed people fishing for elvers. One of the men, Robert Syliboy, refused to put up his hands, became upset and threatened to throw an officer to the ground and fight them.

The Crown said it's clear Syliboy "strongly believes" he has a right to fish for elvers and told officers he wanted to be charged, but it's not an excuse to obstruct a fisheries officer. He also noted that Syliboy calmed down.

"We're all aware from news reports that the elver fishery involves significant tension and some conflict," Donohue said, according to a recording of last week's hearing. "The officers have a job to do, and at times it's a dangerous job."

'Huge disconnect'

Syliboy's lawyer, Michael McDonald, told the court his client has had bad experiences with Department of Fisheries and Oceans officers in the past, and while this was not an excuse for his behaviour that night, it does explain the frustration and anger.

"There's this huge disconnect between my community members and past experiences with the Department of Fisheries," said McDonald. 

"The relationship between our community members and DFO has been strained over the last number of years, ever since the Marshall decision came out. We've been experiencing a lot of mistreatment — what we feel is mistreatment — from the Department of Fisheries in not recognizing our rights to fish for a moderate livelihood."

Marshall was a landmark 1999 decision by the Supreme Court of Canada, which ruled Mi'kmaq had a right to hunt, fish and gather for a "moderate livelihood," although the court added that the federal government could regulate for conservation or other reasons.

Some Mi'kmaq have increasingly asserted they have a right to fish and sell lobster and elvers outside of DFO regulations, but have faced opposition from commercial fishermen and enforcement from federal fisheries officers who have seized lobster traps and elver nets.

The constitutional challenge involving the five men accused of elver fishing had not yet been heard before the Crown sought the stay last week. The Crown has the option of resuming the prosecution within a year.

In an earlier brief filed in the case, McDonald, who represented the men, argued the laws preventing his clients from fishing for elvers were unconstitutional as they violated their treaty and Aboriginal rights.

Fine amount

Judge Bronwyn Duffy fined Syliboy $1,500. Syliboy told the judge he had objected to being handcuffed because he did not want to be treated like a criminal, but said he regretted becoming upset.

McDonald had requested a fine of $1,752, matching the year of the Peace and Friendship Treaty of 1752, which was signed between Jean-Baptiste Cope, a Mi'kmaw chief, and the British governor of Nova Scotia, Peregrine Hopson.

Donohue said he did not think that fine amount was appropriate, noting there are other cases making their way through the courts where defendants have asserted treaty rights.

"There's an argument on one side that the treaty is still active, and there are potentially arguments on the other side that it was terminated," he said.

The eight-article Treaty of 1752 created new terms of peace between the Mi'kmaq and British, and gave Mi'kmaq who came under the treaty "free liberty" to hunt and fish, and to sell things through trading posts. The peace was shattered just months later after hostilities broke out.

In the Marshall case, lawyers for Donald Marshall Jr., initially said he had a right to fish and sell eels under the Treaty of 1752. They abandoned that defence following expert evidence from a historian, and instead relied solely on the Treaties of 1760-61 in successfully arguing the case.