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

Exactly 18 years after the Supreme Court of Canada issuedaclarification of its ruling on Indigenous peoples' right to fish, the case of a Mi'kmawfishermanfrom New Brunswick was in court in an attempt tohave it clarified again.

Joseph Hubert Francis's lawsuit against the Crown began Friday the first scrimmage in hisbattle to affirmhis individualtreaty 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 rightallowing Indigenouspeoples to earn a "moderate livelihood"throughcommercial fishingin Atlantic Canada.After months of criticism from non-Indigenous fishermen, the court issued a clarification on Nov. 17, 1999,whichreinforced the federal government's power to regulate the fishery.

Francis's lawyers hope hiscase will lead to aruling that will clearlydefinea "moderate livelihood"and could set a precedent onIndigenous peoples' access to natural resources.

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

Francis' counsel needed to provethat he'd exhausted all options to fund the casehimself andthat without the funding, he will bedenied access to justice. They also needto prove that thecase is of enough importance to warrant public funding.

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

Multiple criminal charges

Francis' case stems from three sets of criminal chargesincludingfishing 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 Francislanded, which he sayshad a combined value of nearly $20,000, was seized by DFO.

Francis haselected not to speak publicly about the case on the advice of hislawyers.

During across-examination by the Crown in August, Francis saidthat 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," hetold 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 hewasexercising his "Marshall treaty right"andadded that even after explaining his intentions toDFO, they intervened, which violated his right to earn a moderate living on the water.

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

"Essentially we're looking forthe [federal] court to sort out number one: what Aboriginal right is there?" saidPineo.

"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'kmawman 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 andarson 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 casesbetween First Nations bands and governments, andprotests 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 CommercialFisheries Initiative(AICFI) were developed toprovidethe First Nations affected by the Marshall decision with the means to better access commercial fishing, butwithin the constraints of government regulations.

Denied by his own chief and council

Hubert Francis's band, Elsipogtog First Nation, had access to the fisheries throughAboriginal Communal Fishing Licences,which arelicence-related resources distributed by DFO to eligiblebands, managed by chiefand council.

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

"The licences were gone," Francisstated during testimony.

"The boats were all given away."

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

"Wewere 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 allegedtreaty violations could be settledas part ofFrancis' criminal case, and did not need to be addressed in a civil action. Itadded that because the Federal Court does not have the power to stay criminal charges in provincial court cases, Franciscould 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 aQuebec provincial court in December.For now,it's unclearifthe decision on advance costsin the civil actionwill affect the criminal case against Francis.