Treaty rights at centre of trial of 4 Mi'kmaw fishermen set to begin next month

The trial of four Mi'kmaw fishermen accused of illegal fishing in September 2019 will begin next month in Nova Scotia provincial court.

Ashton Joseph Bernard, 31, Arden Joseph Bernard, 22, Rayen Gage Frances, 22, and Zachery Cuevas Nicholas, 34, don't dispute they were fishing in the lucrative Lobster Fishing Area 34 off southwestern Nova Scotia when the commercial season was closed. But the four men argue they had a treaty right to fish there during that time.

In 1999, the Supreme Court of Canada ruled that fishermen from Atlantic First Nation communities have the right to fish for a moderate livelihood, citing peace treaties signed by the Crown in the 1760s. A subsequent clarification of the court's decision, however, also affirmed Ottawa's right to regulate the fishery to ensure conservation of the resource -- provided the federal government could justify infringing on the right of First Nations to fish.

The trial comes as Sipekne'katik First Nation prepares to relaunch its self-regulated fishery in June in the province's southwest, despite warnings from federal Fisheries Minister Bernadette Jordan that her department will enforce rules prohibiting commercial lobster fishing outside of commercial seasons.

The case involving the four fishermen also involves a fifth man, Michael Surette. Surette is not Indigenous so his case has been severed from the others.

According to an agreed statement of facts, when the vessel Charlene Helen came into port, it had 2,560 lobsters on board after fishing the waters off Pinkney Point. The crustaceans were all seized and returned to the water. Fisheries officers also seized 32 lobster traps.

Crown and defence lawyers made a brief appearance in court Tuesday morning to discuss the next steps.

When the case returns to court in Bridgewater on May 21, the Crown will introduce the agreed statement and close its case. The process is expected to be brief. Once the statement is filed, the lawyers will then pick dates for the defence to make their constitutional arguments.

Due to COVID-19 restrictions, proceedings will likely be by video conference as the lawyer for the federal Crown, Denis Lavoie, is based in Moncton, N.B. The four fishermen are represented by Michael McDonald of Shubenacadie.