A Mi’kmaq fisherman from New Brunswick hopes that his civil suit against the Crown will lead to a clarification of the Supreme Court of Canada’s Marshall decision on Aboriginal fishing rights.
The defense of Joseph Hubert Francis of the Elispogtog First Nation will appear at the Federal Court in Halifax on Friday for the first part of his March suit.
The Supreme Court of Canada issued the Marshall decision in 1999, which recognized the Mi’kmaq and Maliseet people’s right to participate in the various fisheries and the right to sell their catches. The court concluded that under the treaties, these Aboriginal people have the right to engage in hunting, fishing and gathering to ensure “adequate livelihood”.
After months of criticism from non-Aboriginal fishers, the Supreme Court issued a clarification on November 17, 1999, which strengthened federal authority to regulate the fishery.
Mr. Francis’s lawyers hope that his case will lead to a decision that will specify what is meant by a suitable livelihood. This could set a precedent for indigenous peoples in terms of access to natural resources.
Multiple criminal charges
The lawsuit filed by Joseph Hubert Francis arose out of several criminal charges against him, including fishing without a license and illegal possession of shrimp.
The Department of Fisheries and Oceans (DFO) laid the charges against him in 2015 after seizing a shrimp landing. The landing in question was worth nearly $ 20,000, according to Francis.
Joseph Hubert Francis makes no comment about the lawsuit, on the recommendation of his lawyers.
In a cross-examination conducted by the Crown in August, Mr. Francis stated that he fished on three occasions using legal methods, legal equipment, and acted under the authority of the Band Council and that he had informed DFO of his intentions.
Joseph Hubert Francis explained that he had informed DFO that he would be fishing the next day under the Supreme Court of Canada’s decision recognizing a treaty right to fish. According to him, DFO’s intervention violated his right to secure a decent livelihood.
Robert Pineo, a lawyer and a spokesman for Mr. Francis, says it’s about clarifying the Marshall decision. First, what are the rights of aboriginals? And second, do they have the right to fish for a decent livelihood outside the Marshall decision?
Right to fish refused in his own community
Elsipogtog First Nation has community fishing licenses granted by DFO to eligible communities. These licenses are managed at the local level by Band Chiefs and Councils.
This is where Joseph Hubert Francis’s fishing rights were denied for the first time, according to him. He said there was no license for him and that all the boats had already been given to other members of the community.
Since the community has only limited resources to distribute to its members, Mr Francis believes that his fundamental right to fish has been denied. He says that his own leader and band council refused to allow him access to the fishery.
On Friday in Halifax, the Federal Court will consider Joseph Hubert Francis’ request for the Crown to pay legal fees in addition to his own. His lawyers must prove, among other things, that he can not pay his legal fees himself and that his prosecution is in the public interest.
As for the criminal charges against Mr. Francis, the proceedings will be held in provincial court in Quebec in December. The charges could be stayed according to the Federal Court’s decision on the costs of the civil suit.