Court fight over treaty right to fish will continue

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What started as a sale of two pickerel fish caught in Pasqua Lake almost two years ago is heading back to court as two First Nation men continue to assert that they have a treaty right to fish for food.

Earlier this month Dwayne Stonechild, lawyer for Harvey James Ironeagle of the Pasqua First Nation, launched the appeal.

In early November Fort Qu'Appelle Provincial Court Judge Ross Moxley found Ironeagle of Pasqua First Nation guilty of illegally marketing fish. However, Judge Moxley entered a stay of proceedings on the sentencing, deciding not to sentence Ironeagle because he had been entrappped, or influenced to commit the offences by law enforcement officials.

Ironeagle and Henry Cyr, also of Pasqua First Nation, were each originally charged with three counts of provincial conservation infractions. Judge Moxley dismissed five of the charges.

However, the trial did not clarify the issue of treaty rights and commercial fishing, which became the central debate of the proceedings, said Stonechild.

"The court didn't consider the definition of sustenance," he said during a phone interview. "The definition of a fishery for sustenance should be determined by what was agreed to by Treaty 4, the Canadian Constitution and the Donald Marshall case.

"When Mr. Cyr and Mr. Ironeagle were first charged, we gave the Department of Justice an option to negotiate a settlement out of court - after all, the case revolved around selling two pickerel for $10," he added. "We were forced to go to court to stand up for our peoples' treaty rights."

But in order to mount such a defence, this would have required a trial of the scope of the ground-breaking Delgamuukw case, which clarified the inherent rights of First Nations in British Columbia, said Stonechild.

"The courts are now under an obligation to consider and give weight to Elders' testimony of our history, which until recently has been handed down orally from generation to generation.

"What this court stated was that we didn't lay a proper foundation for oral testimony."

In 1930 the federal government transferred the right to maintain and collect royalties from natural resources on Crown land to the Province of Saskatchewan. The Natural Resources Transfer Agreement gives status Indians the right to hunt, trap, and fish for food on Crown lands year round.

Whatever rights First Nations people had to hunt, trap or fish for commercial purposes were extinguished when the NRTA was signed, Judge Moxley said in his decision.

The appeal will be heard in Regina, Stonechild said. A date for the appeal will likely be set in late January or early February.