First Nations fishermen win court battle

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As Harvey Ironeagle tried to break through the large crowd in the courtroom, a friend shook his hand.

"Congratulations, so far," said the man.

Ironeagle, 63, and his 55-year-old friend, Henry Cyr, walked from the Provincial Court as free men, but, they and their lawyer say, the issues surrounding their charges of illegally selling fish haven't been resolved.

"You have won the battle, gentlemen, but not the war," Judge Ross Moxley said in passing judgment to their case.

Judge Moxley acquitted Cyr of all three charges stemming from a January 20, 1998 incident at Pasqua Lake. The judge also acquitted Ironeagle of two of three charges stemming from the incident, but convicted him of commercial fishing without a licence.

On that January day, Ironeagle and Cyr were fishing on Pasqua Lake, and Ironeagle sold two pickerel for $10 to an undercover conservation officer with Saskatchewan Environment and Resource Management (SERM).

However, Judge Moxley stayed Ironeagle's conviction, saying the conservation officer who made the arrest went too far.

"The conservation officer went over the line in the way he handled this sale of fish," the judge said in passing judgment.

But Judge Moxley rejected an integral part of the two men's defence strategy, saying status Indians in Saskatchewan don't have a right to operate a commercial fishery.

Previous court judgments concerning such cases say "the right is to take fish to consume, not to sell for the purpose of purchasing other items such as gasoline, however essential," said Judge Moxley in his decision.

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 means status Indians' right to hunt, trap, or fish for commercial purposes was extinguished, said the judge.

However, lawyer Dewayne Stonechild, said First Nations believe the treaties signed between their people and the federal government take precedence over whatever arrangements are made between the federal government and the provinces.

"The judge relied on the NRTA of 1930 as the basis of the decision," said Stonechild. "That is highly controversial for Aboriginal people."

Ironeagle agrees, saying international agreements should take precedence over federal-provincial agreements.

"It takes two nations to make a treaty," Ironeagle said.

However, the province is satisfied that the court upheld the government's long-standing position regarding the NRTA, Crown prosecutor Kurt Sandstrom said.

"The judge also rejected defence arguments from the Donald Marshall Jr. case. Last month the Supreme Court of Canada acquitted Marshall of fishing and selling fish without a licence. In a 5-to-2 decision, Canada's highest court ruled that Marshall, a member of the Mi'kmaq Nation of Nova Scotia, had an existing treaty right to fish out of season and to sell the fish he caught.

The basis of that decision comes from the 1760 "Treaty of Peace and Friendship" between the Mi'kmaq peoples and the British government (at the time of the treaty, Nova Scotia was a British colony).

Judge Moxley said the Marshall case had no bearing on the charges facing Ironeagle and Cyr.

Stonechild said the two men were considering an appeal. Ironeagle and Cyr said after court the appeal is as good as filed.

"There's no way there shouldn't be an appeal," said Cyr.