This case was heard in the Nova Scotia Provincial Court.

The defendant, Peter Francis, was a Mi’kmaw fisherman engaged in a lobster fishery who had been charged under the Atlantic Fishery Regulations with fishing for lobsters without being authorized to do so and fishing with lobster traps without valid tags attached to them. The issue before the Court was whether Mr. Francis had a treaty right to trap lobsters without authorization via the Atlantic Fishery Regulations and without valid tags.

Mr. Francis had previously fished under a licence granted to him by the Mi'kmaq Fish and Wildlife Commission. When he was later advised that this practice was no longer accepted, he went out to retrieve his traps, and in the process removed the Mi’kmaw tags and kept the catch of lobsters. Mr. Francis attempted to argue that he had a treaty right to fish protected under the Treaty of 1752, but the Court rejected this argument finding that the treaty was not applicable to his Band, the Acadia First Nation. Mr. Francis also put forward an Aboriginal right defence, but this also failed. The Court found that there was no evidence to show that fishing for lobsters was integral and distinctive to the historical culture of the Mi'kmaq who were living in the region in question before European contact. The Court went on to state the offence about the fishing tags failed as the defendant had acted to the best of his abilities in that regard (removing the traps upon realizing their tags were no longer valid). However, on the offence of fishing lobster unauthorized, Mr. Francis was found guilty on the basis that he should have released the lobsters from the holding cage once he realized the tags were no longer valid.

View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2003/2003nspc20/2003nspc20.html

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