When a commercial lobster fishery makes national headlines, it’s not about good catches.
One year ago, confrontation and violence upended the normally business-like commercial lobster season in St. Mary’s Bay and Lobster Fishing Area 35 in southwest Nova Scotia. Tensions between Indigenous and non-Indigenous fishermen in the bay had erupted in several dangerous boat-ramming incidents.
On October 13, 2020, a mob broke into a lobster pound in Middle West Pubnico where Mi’kmaw fishers were storing their catch. Three days later, the same pound was burned to the ground. One man was hospitalized with life-threatening injuries.
Two people have been charged with arson. Twenty-five commercial, non-Indigenous fishermen have been charged with break-and-enter and/or mischief for the October 13 raid on the lobster pound.
But a full year later, as the wheels of justice turn ever so slowly, none of those charged have entered a plea.
Before we examine how that happened, it’s worth noting some updates in the troubled fishery.
The Bear River and Annapolis Valley First Nations have reached interim “understandings” with the Department of Fisheries and Oceans (DFO) and are now fishing alongside commercial non-Indigenous fishermen in the same area where the commercial lobster fishery just opened.
These two First Nations — as well as fishermen from the Glooscap and Acadia First Nations — are part of one community management plan that commits Indigenous fishers to fish within the same lobster season as non-Indigenous fishermen. The four bands will share 3,500 traps and be able to sell their catch in what is being described as a “moderate livelihood” fishery that some say could serve as a template for other First Nations.
Colin Sproule, head of the United Fisheries Conservation Alliance that represents commercial fishermen in the area, has been quoted in the Chronicle Herald as saying he is “cautiously optimistic” this model “is a step in the right direction.” But Sproule also says a lot more work needs to be done.
The Sipekne’katik First Nation, located north of Halifax near Shubenacadie, is not part of this new community management plan.
Sipekne’katik Chief Mike Sack does not accept that the limits of a commercial fishing season are needed to protect lobster stocks, or that his band’s moderate livelihood fishery affects stocks. But he also didn’t want a repeat of last fall’s troubles when Sipekne’katik launched its own moderate livelihood fishery months ahead of the season in LFA 35.
This past July, Sipekne’katik switched gears and chose to launch a “food and ceremonial fishery” (FSC) that allows lobster to be caught and distributed to First Nations members, but not sold commercially.
The Sipekne’katik FSC boats went out in July, months ahead of commercial fishers from Digby, Yarmouth, and Shelburne counties, who fish during the lucrative commercial season that begins in late October and early November (depending on which area in the Bay of Fundy) and runs until May.
Chief Sack said the First Nation boats would be off the water by the time the commercial fishing season began. Sadly, Sipekne’katik suffered a tragic loss earlier this month, when the captain of one of its fishing vessels went missing. His body was later recovered from the water.
As part of its decision in the Donald Marshall case 22 years ago, the Supreme Court of Canada established the right to a “moderate livelihood fishery.” But Ottawa never got around to working out with First Nations how that would work. It was only in late August this year, during the federal election campaign, that Bernadette Jordan, Minister of Fisheries and Member of Parliament for the South Shore area that includes Shelburne County, announced the Community management plan. She lost her seat in the federal election a few weeks later.
Arguably, Sipekne’katik’s actions last year finally forced Ottawa to negotiate with First Nations to come up with an arrangement that would work in practice.
Following the Marshall Decision, the Supreme Court then issued a clarification (known as Marshall 2) that allows Ottawa to regulate the Mi’kmaq fishery if there are concerns about conservation — providing there is consultation with the First Nations.
Meanwhile, what has happened to all those people charged with breaking several laws during tensions a year ago? The short answer is, not much.
In July 2021, arson charges for destroying the lobster pound were laid against 24-year-old Brendan Porter of East Pubnico, who was injured in the fire.
Last month, 29-year-old Sean Messenger of Shelburne County was charged with arson for the same fire. Messenger had been charged last January with less serious break-and-enter and mischief offences when the mob of more than 100 people protested in front of the lobster pound. Men went inside the building owned by East Coast Atlantic Fisheries where the Sipekne’katik catch was being stored, took live lobster from the tanks, and threw them into the Bay.
As mentioned earlier, the 15 non-Indigenous fishermen from Shelburne and Yarmouth counties charged with break-and-enter are still waiting to go to trial.
They are: Devin Edward Belong,26; Leslie Edward Belong, 29; Damian Brett Chetwynd, 22; Roderick Bruce Conrad,53; James Alfred D’Entremont,55; Marcel Renald D’Entremont,29; Nicolas D’Entremont,43; Kevin Paul D’eon,41; Kevin Mark Donaldson,51; Christopher Howard Goreham,40; Curtis Leigh Goreham, 36; Josh Andrew Larkin,27; Shawn Joseph Muise,46; Travis Nickerson, 27; Sterling Scott Penney,49; Troy Warren Penney, 43; Jered Owen Scott, 22.
An additional eight people are awaiting trial on charges of both break-and-enter and mischief (throwing the lobsters into the Bay). They are: Tyler Leslie Belong, 28; Samuel Spencer Corning, 27; Blair Daniel Dentremont, 46; Charles Richard Hines, 50; Sean Roy Messenger, 29; Michael Pearle Nickerson, 66; Gordon Malcolm Stoddard, 57; Merle Kevin Swaine, 65.
“Assessing the realistic prospect of conviction”
Crown Prosecutor Rob Kennedy works with Nova Scotia’s Special Prosecutions Unit, which handles complicated cases that may involve multiple defendants or potential conflicts of interest. In an interview with the Halifax Examiner, Kennedy said he received the fisheries dispute file in June 2021, and there are a couple of reasons why the case had not proceeded up to that point.
Lawyers can’t advise their clients how to plead until they know what evidence the police and the Crown have gathered.
Kennedy said disclosure from the police took more time than usual because of the volume of cellphone videos taken by participants during the protest (and RCMP on the scene) in front of the lobster pound the night of October 13.
“This case has various complexities to it. Just in terms of identifying the accused in this case took some time,” said Kennedy. “There was a plea from the RCMP to the public, ‘do you know these individuals?’. There were also internal requests within the RCMP for help identifying certain individuals. These are stills obtained from video from cellphone footage.”
The RCMP laid break-and-enter charges in January 2021. The first court appearance for the 25 co-accused was on March 29. The sheer volume of charges makes pursuing convictions challenging to manage.
“We do have a (human) resource issue in the western part of the province,” said Chris Hansen, senior media relations officer with the NS Public Prosecution Service. Hansen told the Examiner that over the past year, the Digby-Yarmouth region has been without the services of one staff prosecutor, and provincial court judges are also thinly spread. COVID-19 hasn’t helped either, she added.
The unwieldy number of co-accused has led to several court appearances in order to ensure everyone has a lawyer, Kennedy said. The break-and-enter cases come back to Yarmouth court for a plea on November 5.
Of the 25 co-accused, five people are self-represented, 16 now have the same lawyer, and four others have their own lawyers.
“We are in communication with defence counsel now,” said Kennedy. “Over the last two months we have received all of the disclosure and we have been reviewing the evidence and assessing the realistic prospect of conviction for some of the co-accused.”
Although it has been 10 months since the charges were laid, Kennedy remains confident these break-and-enter cases will be concluded within the 18-month deadline set by the Supreme Court of Canada’s “Jordan” decision. Charges in Provincial Court still outstanding after that length of time can be dismissed for unreasonable delay.
In another but separate incident related to last year’s hostilities, 43-year-old Dale Richard Wagner has appeared in court five times on a charge of disobeying an October 2020 court injunction. That court order prohibited threats or harassment against members of the Sipekne’katik First Nation.
Wagner allegedly maneuvered his fishing boat “in close proximity” to another owned by the First Nation. Wagner’s September 2021 court appearance was cancelled when no judge was available. He is due to appear in Digby court this week, on October 26, where the charge may possibly be dropped. The local Crown office is currently reviewing the case.
Indigenous fishers Brendan Alexander Maloney from Sipekne’katik and Shaquest India Miller of Yarmouth County were each charged under the Canada Shipping Act for “operating a vessel in an unsafe manner” during boat-ramming incidents in St. Mary’s Bay on September 20 and October 12, 2020. A warrant has been issued for Miller’s arrest because she did not appear in court. Maloney, now a councillor for the Sipekne’katik First Nation, pleaded guilty in July and was fined $500.
Commercial fisherman Michael Burton Nickerson has pleaded not guilty to setting a fire outside the lobster pound during the break-in October 13. He is scheduled to go to trial January 6, 2022.
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