N.S. fishing industry wants say in Mi'kmaw treaty rights case

Nova Scotia commercial fishermen will find out Friday whether they can intervene in a court case that tests the federal government's authority to regulate a Mi'kmaw lobster fishery.

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

Lawyers for the Unified Fisheries Conservation Alliance — an industry association that represents non-Indigenous commercial fishermen across the province — appeared Wednesday before the Nova Scotia Supreme Court, asking for intervenor status in the Potlotek case.

Justice John Keith said he will issue a decision Friday afternoon.

Alliance lawyer Jeff Galway argued the non-Indigenous fishing industry has a direct interest in the outcome since its members depend on DFO to provide an independent and integrated fishery regime that conserves the resource for all.

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

What the industry says is at stake

"Potlotek seeks to operate a self-regulated commercial fishery that is not subject to the federal Fisheries Act and associated regulations," Galway told the court. "That raises a host of complex legal and evidentiary factual issues."

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.

But the scope of that right has never been defined, and has caused uncertainty and conflict ever since.

The Unified Fisheries Conservation Alliance echoed an argument made by lawyers for Canada, who oppose the Potlotek injunction application.

"The question for this honourable court include what is the nature of the applicants' treaty right, whether the applicants have demonstrated a prima facie infringement of their treaty right, and if so, whether Canada's regulatory approach in this case unjustifiably infringes the applicants' rights," federal lawyer Jonathan Tarlton wrote in a legal filing.

Tarlton was present, but did not participate in arguments Wednesday.

Federal lawyers said in a filing the Crown does not oppose granting the alliance intervenor status.

The Potlotek rebuttal

Potlotek argued its case only affects the band and there is no evidence an injunction against DFO would adversely affect any non-Indigenous fishermen.

"This is about Potlotek's [fishing] plan and whether it passes constitutional muster," Potlotek lawyer Jason Cooke told the court.

He said the case was not "the forum for promotion and advocacy" from an industry association.

"If you are accepting the basis for the intervention, that will result in the scope widening beyond the issues in the application," Cooke told the court. "We have real concerns this gets turned into something political." 

Cooke declined comment outside the courtroom.

Colin Sproul, a spokesperson for the Unified Fisheries Conservation Alliance, also declined to discuss the case further.

"All I can say is that we're really happy to have the opportunity to share our perspectives with the court, but I can't really comment much more than that while there are the issues before the court," Sproul told CBC News.

Alex Cameron, a former provincial government lawyer, arrived and departed with the alliance's team. He sat in the back of the courtroom Wednesday.

Cameron once wrote a controversial brief that questioned the government's duty to consult the Mi'kmaq. He has also written a scathing book criticizing the 1999 Supreme Court of Canada rulings that recognized the Mi'kmaw right to earn a moderate living

When asked if Cameron is working for Unified Fisheries Conservation Alliance, Sproul responded: "I just really can't comment on legal matters, but I can say that I'm really happy to have a chance for our members to get to share their perspectives with the court," he said.

Cameron did not respond when asked what he was doing in the court.

The case is proceeding despite an interim measure in June 2021 between the band and DFO that cleared the way for Potlotek fishermen to catch and sell lobster in Cape Breton during the existing commercial season. That allowed the band to implement what it called its Netukulimk livelihood fisheries plan.