Mi’kmaq fisherman intends to fight federal charges alleging illegal lobster catch

HALIFAX — A fisherman from a Mi’kmaq community in Cape Breton says he intends to plead not guilty to charges of illegal fishing after his lobster traps were seized last year by federal fisheries officers in southwestern Nova Scotia.

Ashton Bernard, 30, of Eskasoni First Nation, said in a telephone interview Monday he will rely on the 1999 Supreme Court of Canada decision in the Donald Marshall Jr. case.

The Supreme Court ruled that East Coast Indigenous 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.

Bernard said he believes the first portion of the Supreme Court decision will prevail.

“The highest court in Canada affirmed our treaty rights and we’re allowed to fish under a moderate livelihood,” he said. “I wasn’t going to wait around for the government to tell us when to fish or not.

“I told the boys, ‘Let’s go out and see how it goes,’ and now we’re into court.”

Bernard’s case is proceeding amid tensions over the launching on Sept. 17 of a livelihood fishery by the Sipekne’katik First Nation, on the 21st anniversary of the Marshall decision.

Since the Sipekne’katik fishery began, federal Fisheries Minister Bernadette Jordan has confirmed she is committed to respecting the Mi’kmaq treaty right to pursue a moderate livelihood. Her officials have been in talks with the band to define the fishery.

The seizures of Bernard’s catch occurred Sept. 7, 2019, when Bernard says fisheries officers raided his boat in the early hours of the morning and removed 32 crates of lobster.

He said he had caught the lobster after fishing off Pinkneys Point, N.S., about 20 kilometres south of Yarmouth, for two days. He says his boat had a crew of four and was using 80 traps, and he says when he was approached by DFO officers on the water, he informed them he was fishing under provisions of the Marshall case.

Meanwhile in Ottawa, the House of Commons fisheries committee delved into the dispute Monday with testimony from Indigenous leaders.

Paul Prosper, the Assembly of First Nations’ regional chief for Nova Scotia and Newfoundland, told MPs it was a rude awakening when he learned the federal government doesn’t always uphold treaty rights.

“There is no mechanism to force government to, under the laws of this land,” he said. Indigenous fishers have been waiting for 21 years since Marshall decision for a mandate to practice their moderate-livelihood fishing rights, Prosper said.

Darcy Gray, chief with the Listuguj Mi’kmaq, a First Nation in Quebec, testified that his nation has launched its own fishing management plan but continues to be rebuffed by federal authorities. 

“For the last two falls, we have conducted our own self-regulating fishery,” Gray said. “Lobster stocks in our fishing area remain healthy.”

But the Department of Fisheries and Oceans prohibits the sale of his nation’s lobster, he said. “Every fall, we are refused. Every fall, the minister insists on prohibiting us from exercising our treaty right.”

Back in Yarmouth, Bernard was in provincial court on Monday to face charges of fishing outside of the closed federal season, lobster fishing without authorization and possessing lobster in contravention of the Fisheries Act.

Two other First Nations fishermen, Zachery Nicholas and Rayen Francis from Pictou Landing First Nation, were also charged with those three offences.

Ashton Bernard’s younger brother, Arden Bernard, is facing the same charges, and the brothers are also both charged with violating Aboriginal communal fishing licensing regulations.

Another man, Michael Surette, is facing the same charges in the matter, and he said in a teleconference with the judge that he intends to hire a lawyer.

The lawyer for the Indigenous fishers, Michael McDonald, and the federal prosecutor agreed to set a date of Dec. 1 for election and plea in the case.

Before becoming a fisherman, Bernard played major junior hockey for the Cape Breton Screaming Eagles, the Rouyn-Noranda Huskies and the Shawinigan Cataractes. He says he entered the fishing industry with a snow crab licence obtained by his band, and shifted into lobster fishing last year.

Bernard said he is currently fishing for lobster in St. Peters Bay in another of the recently opened livelihood fisheries. “It’s been 21 years since the Marshall decision, and we didn’t want to wait another 21 years,” he said.

This report by The Canadian Press was first published Oct. 26, 2020.

Michael Tutton, The Canadian Press