Commercial fishermen in Nova Scotia will know on Friday whether they can intervene in a court case testing the federal government’s power 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-regulating moderate livelihood lobster fishery. The Cape Breton Band wants a court declaration that the enforcement of the federal Fisheries Act infringes on their treaty right to earn a modest living from the fishery.
Lawyers for the Unified Fisheries Conservation Alliance – an industry association that represents the province’s non-Indigenous commercial fishermen – appeared before the Nova Scotia Supreme Court on Wednesday, seeking intervenor status in the Potlotek case.
Judge John Keith said he would render a ruling on Friday afternoon.
Alliance lawyer Jeff Galway argued that the non-Indigenous fishing industry has a vested interest in the outcome as its members depend on DFO to provide an independent and integrated fishing regime that conserves the resource for all.
The alliance said the Potlotek exemption would deprive DFO of its court-recognized authority to regulate the Mi’kmaw fishery for conservation purposes.
What the industry says is at stake
âPotlotek seeks to operate a self-regulating commercial fishery that is not subject to the federal Fisheries Act and associated regulations,â Galway told the court. “This raises a host of complex factual legal and evidentiary issues.”
In 1999, the Supreme Court of Canada recognized the right of the Mi’kmaq to earn a moderate living from fishing in the Marshall cases. He also recognized the power of the government to regulate this fishery.
But the scope of this right has never been defined, and since then it has caused uncertainty and conflict.
The Unified Fisheries Conservation Alliance has echoed an argument made by lawyers for Canada, who oppose Potlotek’s injunction request.
“The question for this honorable court is what is the nature of the claimants’ treaty right, if the claimants have demonstrated a At first glance violation of their treaty right and, if so, whether Canada’s regulatory approach in this case unjustifiably infringes the rights of claimants, âfederal lawyer Jonathan Tarlton wrote in a legal brief.
Tarlton was in attendance, but did not participate in arguments on Wednesday.
Federal lawyers have said in a filing that the Crown does not object to granting intervenor status to the alliance.
The Potlotek rebuttal
Potlotek argued that his case only affects the Band and that there is no evidence that an injunction against DFO would have a negative effect on non-native fishermen.
“This is Potlotek [fishing] plan and whether it is constitutionally compliant, âPotlotek attorney Jason Cooke told the court.
He said the case was not “the advocacy and advocacy forum” for an industry association.
“If you accept the basis for intervention, it will lead to a widening of the scope beyond the issues of the claim,” Cooke told the court. “We have real concerns that this will turn into something political.”
Cooke declined to comment outside the courtroom.
Colin Sproul, spokesperson for the Unified Fisheries Conservation Alliance, also declined to discuss the matter further.
âAll I can say is that we are really happy to have the opportunity to share our views with the court, but I cannot really comment more than that when there is problems in court, âSproul told CBC News.
Alex Cameron, a former provincial government lawyer, arrived and left with the alliance team. He was sitting at the back of the courtroom on Wednesday.
Cameron once wrote a controversial brief that questioned the government’s duty to consult with the Mi’kmaq. He has also written a scathing book criticizing the 1999 Supreme Court of Canada rulings which recognized the Mi’kmaw’s right to earn a living in moderation.
When asked if Cameron works for the Unified Fisheries Conservation Alliance, Sproul replied, âI really can’t comment on the legal issues, but I can say I’m really happy to have the chance for our members to share their views with the court, âhe said.
Cameron did not respond when asked what he was doing in court.
The case continues despite an interim measure in June 2021 between the Band and DFO that allowed Potlotek fishermen to catch and sell lobster in Cape Breton during the current commercial season. This allowed the band to implement what they called their Netukulimk livelihood fishing plan.