Marshall case cited in court

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Final arguments were heard in Fort Qu'Appelle Provincial Court last month on what could be one of the biggest judgments on treaty rights in the wake of recent Supreme Court of Canada rulings.

Provincial Court Judge Ross Moxley reserved judgment until Nov. 8 on the case of two Pasqua First Nation men charged with three counts of illegally catching fish for sale.

At the center of this dispute are two pickerel the two men allegedly sold for $10 to an undercover SERM agent while ice fishing on Pasqua Lake more than 18 months ago. The charges have resulted in hundreds of hours of legal work by both the prosecution and defense, says the men's lawyer, Delia Opekokew.

Harvey Ironeagle, 63, and Henry Cyr, 55, were charged with three counts of violating provincial fish and wildlife laws on Jan. 20, 1997. Their case went to trial in Fort Qu'Appelle Provincial Court last June.

In her final arguments in court Monday, Opekokew said the Donald Marshall, Jr. Case is a template for other treaty right cases throughout Canada.

"This will allow treaty Indian peoples to continue to do what they have always have done," said Opekokew, who is providing legal counsel through the Federation of Saskatchewan Indian Nations.

In September, the Supreme Court of Canada ruled 5-2 that Marshall, a member of the Mi'kmaq First Nations of Nova Scotia, had an existing treaty right to fish outside the regular fishing season, and to sell fish which he caught.

That judgment stems from a treaty signed in 1760,"The Treaty of Peace and Friendship," between the British government (Nova Scotia was then a British colony) and the Mi'kmaq people. The treaty gave Mi'kmaq people the right to fish commercially for, as was stated in that treaty, "necessities."

The Marshall judgment further protects the inherent treaty rights which both sides agreed to when the treaties were signed, though some of this wasn't mentioned in those treaties, she said.

"In both cases, treaty Indians and the federal government assumed the right to fish would also include the right to sell fish for sustenance," she added.

This is the first court case in Saskatchewan involving treaty rights and wildlife harvesting since the Marshall judgment by the Supreme Court, Opekokew added.

In his final argument, Crown prosecutor Curt Sanderson says a 1930 agreement between the federal and Saskatchewan governments transferred the responsibility of land and resource management to the province. Judge Moxley told court he would need the next six weeks to study the information that was presented to court before passing judgment.

"I'm going to have to give some consideration to that agreement of 1760," he said.

Ironeagle and Cyr face charges of marketing fish illegally, failure to identify nets used in commercial fishing, and commercial fishing without a license. Maximum fines for those convicted of such summary charges range from $235 to $575.