Charged with illegal fishing, Mi'kmaw man seeks to redefine Supreme Court's Marshall decision

Exactly 18 years after the Supreme Court of Canada issued a clarification of its ruling on Indigenous peoples' right to fish, the case of a Mi'kmaw fisherman from New Brunswick was in court in an attempt to have it clarified again.

Joseph Hubert Francis's lawsuit against the Crown began Friday — the first scrimmage in his battle to affirm his individual treaty rights, and earn a living on the water.

In 1999, the Supreme Court's controversial ruling on R. v. Marshall affirmed a 240-year-old treaty right allowing Indigenous peoples to earn a "moderate livelihood" through commercial fishing in Atlantic Canada. After months of criticism from non-Indigenous fishermen, the court issued a clarification on Nov. 17, 1999, which reinforced the federal government's power to regulate the fishery.

Francis's lawyers hope his case will lead to a ruling that will clearly define a "moderate livelihood" and could set a precedent on Indigenous peoples' access to natural resources.

Legal counsel for Francis, a member of the Elispogtog First Nation in New Brunswick, appeared in Halifax Federal Court Friday to ask for advance costs. Simply put, he wants the Crown to pay for his side of the case.

Francis' counsel needed to prove that he'd exhausted all options to fund the case himself and that without the funding, he will be denied access to justice. They also need to prove that the case is of enough importance to warrant public funding.

After three and a half hours of legal arguments, Judge Mirelle Tabib reserved her decision for a later date.

Multiple criminal charges

Francis' case stems from three sets of criminal charges including fishing without a licence and being in possession of illegal shrimp, issued to Francis and his crew by the Department of Fisheries and Oceans (DFO) in 2015. The shrimp Francis landed, which he says had a combined value of nearly $20,000, was seized by DFO.

Francis has elected not to speak publicly about the case on the advice of his lawyers.

During a cross-examination by the Crown in August, Francis said that on all three occasions he was fishing by legal methods, with legal equipment, under the authority of the Mi'kmaq Grand Council.

"We told the DFO of my intention," he told the court.

"I'm going fishing under my right to fish as per the Supreme Court of Canada, acknowledging that, yes, I have a right to fish, and I'll be fishing under the treaty. I told them the night before."

He said he was exercising his "Marshall treaty right" and added that even after explaining his intentions to DFO, they intervened, which violated his right to earn a moderate living on the water.

Robert Pineo, Francis' lawyer and spokesperson, said earlier this week that the complex case is a matter of clarifying the Supreme Court's ruling on R. v. Marshall.

"Essentially we're looking for the [federal] court to sort out number one: what Aboriginal right is there?" said Pineo.

"And secondly, whether there's a right to fish and earn a living even outside of the Marshall decision."

R. v. Marshall

On Sept. 17, 1999, the Supreme Court ruled that Donald Marshall Jr., a Mi'kmaw man who had been charged with fishing eels out of season, fishing without a licence, and fishing with an illegal net, was justified in doing so — under the 1760s "Peace and Friendship" treaties.

In its decision, the Supreme Court stated that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship."

Across Atlantic Canada, First Nations fishermen began fishing lobster out of season, claiming the ruling gave them full, unregulated fishing rights.

Violence erupts

Over the next few months, violence between Indigenous and non-Indigenous fishermen erupted on the water and land across New Brunswick and Quebec. Racially-charged vitriol, vandalism and arson swept communities.

Non-Indigenous fishermen eventually called to have the case re-heard, saying that, despite the First Nations' relatively small percentage of fishermen, unregulated fishing would make lobster stocks plummet and put the entire lobster industry — their livelihood — in danger.

The Supreme Court decided against the rehearing, but issued the "Marshall 2" clarification, which stated that the government reserved the power to regulate fishing by Indigenous communities, for the purposes of conservation.

After years of negotiations, agreements and court cases between First Nations bands and governments, and protests on both sides of the Marshall 1 and 2 decisions, Ottawa began investing millions of dollars to support First Nations fishing.

Programs like the Atlantic Integrated Commercial Fisheries Initiative (AICFI) were developed to provide the First Nations affected by the Marshall decision with the means to better access commercial fishing, but within the constraints of government regulations.

Denied by his own chief and council

Hubert Francis's band, Elsipogtog First Nation, had access to the fisheries through Aboriginal Communal Fishing Licences, which are licence-related resources distributed by DFO to eligible bands, managed by chief and council.

That's where Francis says he was first denied his right to fish.

"The licences were gone," Francis stated during testimony.

"The boats were all given away."

Because Elsipogtog had a limited amount of resources to distribute among the community, Francis says his fundamental right to fish was taken from him.

"We were denied access — not from the DFO at that point, but from our own chief and council. Our own band."

In its arguments Friday, the Crown said the alleged treaty violations could be settled as part of Francis' criminal case, and did not need to be addressed in a civil action. It added that because the Federal Court does not have the power to stay criminal charges in provincial court cases, Francis could end up being part of two trials at the same time.

The criminal charges against Francis and his crew are scheduled to be addressed in a Quebec provincial court in December. For now, it's unclear if the decision on advance costs in the civil action will affect the criminal case against Francis.