N.S. fishing industry granted intervenor status in Mi'kmaw treaty rights case

·2 min read
Mi’kmaw harvesters from Potlotek First Nation are shown on St. Peters Bay on Oct. 1, 2020.  (Brent Kelloway/CBC - image credit)
Mi’kmaw harvesters from Potlotek First Nation are shown on St. Peters Bay on Oct. 1, 2020. (Brent Kelloway/CBC - image credit)

An association representing Nova Scotia commercial fishermen has won intervenor status in a court case that tests the federal government's authority to regulate a Mi'kmaw lobster fishery.

The ruling Friday afternoon by Supreme Court Justice John Keith gives the Unified Fisheries Conservation Alliance (UFCA) standing in a proceeding against the Canadian government by the Potlotek First Nation.

The Cape Breton band is seeking an injunction to prevent the Department of Fisheries and Oceans from interfering with its self-regulated moderate livelihood lobster fishery. It wants a court declaration that enforcement of the federal Fisheries Act infringes on its treaty right to earn a moderate living from fishing.

In an oral decision, Keith said UFCA's intervention would not unduly delay, prejudice or politicize Potlotek's case.

He said as a group representing non-Indigenous fishers across the province, UFCA members "have an interest in the manner in which the treaty will be implemented" since they share the same waters and resources as Indigenous fishers.

"It is important for the court to hear a diversity of opinion," Keith said.

"If persons represented by a public group such as UFCA who are so closely connected to and engaged with the same single resource are not heard, confidence in the judicial process and the ability of the judicial process to properly unfold may suffer."

He said the intervention is a "venue where their unique and relevant perspective can be heard."

Potlotek lawyer declines to comment

The industry association argued its members have a stake in the outcome since its members depend on DFO to provide an independent and integrated fishery regime that conserves the resource for all.

The UFCA has said exempting Potlotek would strip DFO of its court-recognized authority to regulate the Mi'kmaw fishery for conservation purposes.

No one from UFCA was in the courtroom Friday. Its team participated by phone, including former provincial government lawyer Alex Cameron.

UFCA president Colin Sproul told CBC News in a statement that it would be inappropriate to comment on the issue while it is before the court.

Potlotek lawyer Jason Cooke declined comment after Keith issued the ruling.

Association wants say in other cases

The UFCA is seeking similar intervenor status in two other Nova Scotia First Nations court cases that challenge the authority of the provincial government to regulate fish buying.

With intervenor status settled in the Potlotek application, the case goes forward.

The federal government rejects the band's claim that enforcement of the Fisheries Act — which prohibits out-of-season commercial lobster fishing — is an infringement on the Mi'kmaw treaty right to a moderate livelihood.

In 1999, the Supreme Court of Canada recognized the right of the Mi'kmaq to pursue a moderate livelihood from fishing in the Marshall cases. It also recognized government authority to regulate that fishery. The scope of the right has never been defined and has caused uncertainty and conflict ever since.


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