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May 10, 2021
VIAEMAIL HalfaxSupremeCount@couts.nsca
The Law Gouts
1815 Upper Water Street
HaliixxN$ B3) 187
Dear Prohonotany:
Re: — Chief Wilbert Marshall on hi oun behal, and on behalf o he members of
Potlotok Fist Nation v. The Attorney General of Canada
Notice of Application in Court
Please fi atached fr fling the folowing documents wih respect to the above noted
1. Notice of Application in Cout and
2. Afidavit of Jason T. Cooke.
‘The fling fee for the attached Notice of Application in Cour in the amount o $218.05 wit
pald va our fis eredit card once approval for fling has been given
In accordance to the directions set out in the Essental Services Model, we are required to
set out why the fing the attached documents are considered urgent or essental
Itis essenta that the within documentation be fled with the Honourable Court and issued
as scon as possible as the subject matter of the Application concems the Applicants
exercise of heir Treaty Rights, and actions being taken by the Respondent against the
Applicants, both of which are taking place curenty.
Further, obtaining the declarations sought by way of the Appication are of paramount
concern to the Applcants, whose member harvesters are ishing on a daly basis and
interacting with the Respondent in an enforcement context Any continued ambiguty about
sus


Page 2
the legtimacy ofthe Applicants‘ exercise ofthe Treaty Right is o he detiment fll partes
involved, but of partcular concem for the digny, safety and economic securty of
harvesters. As you will recall tensions surrounding exercise of the Treaty Right last year
esuted in an injunction being ordered to protect the safey of harvesters of another Mikmag
First Naton:
As a resul, itis essential that the wihin documentation be fled wih this Honourable Court
and issued as soon as possible.
if you have any questions or concerns wih respect to the fing ofthe within documentation,
please advise me immediately at cooke @burchells.ca or by caling my drect Ine at 902«
azeso7a,

Yours very try,

BURCHELLS u»

Moo}
_| | Looke

Jason T. Cooke
hus
Ene
sousso


Count Rommistation
war 1 0 2001
Somes Haltox, NS
zon Hino. — 506010
Supreme Cout of Nova Scot

Between:
CHIEF WILBERT MARSHAL his oun behalf and on behalf f the members of
rot.orek First Nation

a } Applicants
A5 and
The attorney enerat or canaoa
Respondent
Nonie or appuicamion in court

To: The Respondent

The Applicants request an order against you.

The Applicants are applying to the cout for the folowing reiet

1. A declaration that the Fisheries Act (Canada), RSC 1985, c F—14, and the
regulons promulgated thereunder, namely the Fishers (Genera) Regulations,
$0R3 53, the Mantime Provinces Fishery Regulations, SORISS—55, the Alantc
Fishey Requlains, 1985 $ORIBG—21, and the Aboriginal Communal Fishing
Licences Requlalons, SOR 02.332 (he "Requlatons‘) unustfably intinge upon
the Applcants teaty right aftemed by the Supreme Court of Canada in Rt v
Mershal, (1999) 3 SCR 496 (Marshal 1) and Marshal v. Canada, [1999] 3 SCR
533 (Marshall 7) to fh for a moderate Iveihood (he "Treaty Right) by
prohlsting or unduly restictng the Applicants fom exerciing the Trealy Fight,
fallng to prorlice the Treaty Right, and constluing a unstuctired discretionary
administative regime that fas to cutie specifc crtera for the exercise of that
discretion i a framework that propery accommodates the existence of the Treay
Right

2. A declirilon that he Fisheries Act and the Regulations, including provisions
related to enforcement, are constulonaly inapplcable to the Applcants, and of
no forge or effect, pursuant to section 35(1) and secton $2(1 o the Consifutbn


Act, 1982 to the extent they prohlbt, or unduly restfet, the exercise of the
Applcants‘ Treaty Right

3. An Inlinction enjoining the Fisheries and Oceans Canada from enforcing the
provisions of the Fishoris Act and Regulatons against Mikmag harvesters
authorized by Pototok Fist Naton fhing in complance with the Livainood
Fisheries Plan: and

4. Such further and other reief as this Honourable Court may deem fai and justin

the circumstances.

The Applcants stated tis applicaton by fing this Notce on the date cortfed by the

Protronctary

Grounds forthe order

"The Applicants are applying forthe order onthe folowing grounds: See he atached

Schedule "A.

[Name or Wiinass ___ Jswbpet __]
Allaspecis of e Appleton, ncludng but
not iet to:

+. Lack of consutation by
Respondent

+: Preparation and implementation of
the Applcants Lelhood Fisheries
Plans and

+. Barters to effete exerise ofthe
Applcants‘ Treaty Right

Individual Mitimaw Harvesters Ther experiences in attempting to
exercise the Treay Right

Such othr wirosses as doomed

nocessay

Metion for directions and date

A on ; 2021 he Applicants wil appear befor a juige

at The Law Couts, 1815 Loner Water Steet, Halfax, Nova Scota, BSJ 197, to make a

motn for an order ghing directions and appoining a time, date, and place for the

hearing. The Judge may provide dactions n your absence, f you or your counsel fa to
attend.


Affidavit on motion for directions

"The Applicants fie the afidavi of Jason Cooke, swom on May 10, 2021, as evidence on
the motion for irecions. A copy f the affd is dalvered to you wit ths Notice.
You may participate

You may fle with the court a Notce of Contest, and any affidavit fr the motion for
directions, no more than fiteen days after tis Noten is dalvered to you or you are
othanvise nofied of the Applcation. Fling the Note of Contast entitles you to notice of
futher stops n the Application.

Possible fina order against you

"The court may grant a inal order on the Applcation wthout furter noen to you if you fat
to fe a Notice of Contest, or if you or your counsel falto appear a the time, date, and
place fo the motion for rections.

Piling and delivering documents

Any documents you fe wi the court mustbe fied at the ofice o he Prothonotary, The
Law Court, 1815 Lower Water Stret, Halax, Nova Scotia, B3J 157 (olaphone #802—
Am soon)

‘When you fl a document you must memediataly deliver a copy oft te Applicants and
each oer par entiled t nalce, unles the document is ar of an ex parto maton, he
partes agree delvery is not required or a judge orders tis not required.

Contact information

The Applicants designate the folowing address:

D. Brice Clarke, .C. and Jason Cooke

Burchels LLP

1000—1801 Holis Streat

Halt, NS Bou ane

Phone: 602) dzs—e901

Fae: (@02) 420.9820

Documents delvered to this adress aro considered received by the Applcants on
dotvery.

Further contact nformation is avalable fom the Protonotary


Signature
Signed May to, 2021
0. Brice Clie, a. A) (a <
As Counselor the Applicants As Counsel forthe Applicants
Prothonotary‘s coriicate
1 eri hat this Notice of Application was fled wih the court on (has (%o .. 2021.
Proonow $ f j
& mason
Seput Prothorotay


Schedule tar
Grounds fo he Order
1. The Applicant Chief Wibert Marshall (Chief Marshal) is te Chi of Pototak Fest
Nation (Polotel), Chief Marshall bings his Applcation on his oun behalf and on
behal of th members of Potatek.

2. Polotek is a Mfirmaw communty, and Incian Band wii the meaning of the Inclan
Act, RSC 1988, G LS, cated in Richmond County, Nova Scola.

3. Tagether Chief Marshal, and Pottek, are "the Applcants‘,

Bastaround

4. in 1760.1, the Mkmaw signed a series of treaties wih the Brtish Crown, the
predecessor of the Province of Nove Scotia (the Province‘), known as the "Poace
and Frendsip" treaties (the 1760.61 Treats") which guarantoed certain hunting,
thing, harvesting, and trading rights to the Mkmaw in rotum for peacefut relations
with he Brtish Crown.

5. The Mfkmaw lving i the area now known as Cape Breton became signatodes o the
176081 Treats on June 25, 1761.

8. Among the rights n the 170061 Treaties was the promis of access to necessaries"
through rade in fish and wife with non— indigenous people (the Treaty Right).

7. The Mikimag generly, and the Applicants in paricaar, have abrays asserted that
they possess, nor ale, t Treaty Right

The Marshal Decisions

8. On October 26, 1993, Donald Marshall J. was charged wit saling 463 pounds of
cels to a nor—native fh company from New Brinsvick for $787.10, which he had
caught in Pomquet Harbour Antigonish Count, Nova Scota.

9. in parfcula, Mr. Marshal was charged with faling to have a iconce t fish for or salt
cels pursuant t s. 4(1@) of the Martine Province Ashory Regulatons and s. 352)
of the Fishery (Genera Regulations and Tahing within a closed time wit mproper
nets contrary to s. 20 of the Martine Provinces Fishory Rogulatons.

10 Ar Marshal cid not deny contravening the Regulations, but defended that he. as a
MFkrnag person, had a vald reat ight to f and sel is calch pursuant tothe Peace
and Fintan treaties of 1760.61.


11.0n September 17, 1999, the SCC released ts decison in R. . Marshal, [1999] 3
SCR 458 (Marshal 1" wherein e Court cquited Donald Marshal J of te charges
on the basis that the Mrkmag (and other Aboriginal benaflaries to 1760.61 treaties)
had both a rea right to rade and acouss to th fish and widife resources necessary
to provide them win something t ade fo a moderate lvolhood (he "Treaty Right).

12.A8 part of ts decision, the SCC upheld the tral Judge‘s finding of fact that by the nd
of 1761 al the Mrkmac vilages in Nova Scot had entered into separate but simlar
treaties" (rara, 5) and confirmed as a mater of law that the 17601 reatos aimed
‘the ight of the Mikimag people to cortinue to provide fo the oun sustenance by
taking the products of thar harling, fihing and other gathering actvites, an racing
for what in 1760 was *necossties" (para. 4).

13.As part of defining the Treaty Right the SCC noted that i was Imited to necessaries*
and not to be the oper—ended‘ accumulation of weath (hereafter "Moderato
Livelhood") and that, further, as a realy ight within the meaning of Section 35 ofthe
Consttuton Act, 1962, was subject to regulation that could be jusiied under the
Badger test (R v. Badger [1998] 1 SCR 771) (para. 7).

14.The SCC found prima facle nfingements of Mr. Marshalfs Treaty Right on the
folowing basi:

a. For Mr. Marshal to have satisifed he Regulaions, he was required to secure
a lesnce under other the Fishery (Gonera) Regulatons, the Martino
Provinces Fshary Rogulaions or the Aboriginal Communal fshing Liances
Requlions CACFL ) (para. 62)
b. The Fisheries Act and al of the Regulrions placed the issuance of fcences
within the absokite discretion of the Mnistr pare. 63).
e. There was nothing in the Regulations which gave direction tothe Miniter to
explain how she or he should exercise this discretionary authonty in a mannor
which would respect M. Marshalfs Treaty Right (para. 64.
4. Pariament may not simply adopt an unstructured discretionary administrative
regime which risks intinging Aboriginal and Treay Rights (para. 64).
e. "Mihmag reat rights were not accommodated in the Regulabons® (para. 64).
£.. Wit respect to the charge o fshing during a cased season, there can be no
limitation on the method, ining and extent of Indian hunting fr fing] under
a Treaty (para 65)
15.The SCC ordered th acquittal of M. Marshall and held the relevant provisions of the
Regulations he had been charged unde o be consttulonall incperatve agaist him
foor. 64).


18.inwriton reasons issued on November 17, 1290. in Mershallv. Canada, [1990] 3 SCR
539 (Marshall 2), the $CC dlaniased the West Nova Fishermen‘s Coaltion‘s request
for a rehearing of Mershal 1, and in so doin so further helt:

a. Anindiiduals exercise of he Treaty Right would have to b authorized by the
local Aboriginal community (para. 17)

a. Justification fr the intingement of the Treaty Right would need to happen on
a ‘species by spocis® bask, noing "the complexties and techniques of h
and widife management vary rom specias to species and resticions wil oly
have to be ustfed on a spocis—by—specias basis (oar. 21)"

©. The mplcation of Marshal! 1 wi respect to fences was not that fonsing
schemes as such are val, but that the imposition of a leonsing resticton
on the exerise of h Treaty Right had o be jusffed for conservation or other
puble purposes (pare. 20)

:. The impostion of a cased season on the exercise ofthe Treaty Right was not
invald as such, butt had to be justed (para. 29)

. Wik respect tothe Courts comments in Marshal 1 regarting the unstructured
discretionary adminivalve regime in the Fishories Act and Regulaions, the
§CC noted that specifc orteia must be established forthe exerise by the
Minister of hs or he discraion to grant or refuse leences in a manner tat
recognizes and accommodates the existence of an abodginal or treat right
(para. 33) and that "he Gevermor in Council has the power to amend the
Aboriginal Communal Fishing Liconces Regulations to accommodate the
linked commercial fuhary as described in the September 17, 1999 majoriy
Judgment in addtion to the food Ashory" (para. 94).

e. That ‘t is for the Crown to propose what controls are justfed for the
management ofthe resource, and why thy are justilc® (ora. 41)

£.. That in accordance wih the Badgor tea, ‘Aboriginal people ar anttled to be
consuted about limkations and resticions on [heir fghis] and that "he
concerms and proposals of naive communis mustbe taken into accountpror
to estabisting such limitaton on the ight (oras. 4344).

9. Finaly, that with respoctto the Jusfieaton process in the circumstances, aer
appropriate consultion wi the Aboriginal community, the government could
ate at the conclusion tat "he same techniques of resource conversation
and management as are used to cantol th non—native fishery may be hokd to
be jusild‘, or, ltemativay, i could conclude thatthe oncom and proposals
of the natve communties "might lead to diferent techniques of consonvaton
and management in respect of he exercise of th Treaty Right (para. 44)


From the Marshal Decisions to Present

17.Sice Mershall was decided no substantive amendments have been made to te
Fishers Act or Regulations to accommodate the Treaty Right witin the regulatory
framework.

19.Furher, no agreement has been reached between Canada and the Mkmag of Nova
Scotia concering conduct ofthe Treaty Right.

19.in 2010, the isherios Act was amended to require thatit be construed as upholding
the rights of Indigenous peoples recognized and aftimed, by section 35 of
the Constiuion Act, 1982, and not as abrogating or derogating fom them (section
23).

20. Futher 2010 amendments to the Ashorios Ac requie tht the Miniter consider any
adverse effects hat a decision may have on the rights o te Indigenous peoples of
Canada recognized and affrmed by secion 35 of the Constiuton Act, 1982 when
making a decision under that Act (section 2.4).

21. Alhough Potatek, and certain other Fist Natons in Nova Scot, have recalved
commercial lances from Fisheries and Oceans Canada, including under a program
called the ‘Marshall Response Inttve" these are not, and were not intended to be,
an implementation ofthe Treaty Right.

22 Beginning in 2010, Polotek authorized some of ts members t begin exercising te
Treaty Right in a linted manner.

23.Uzing the informaton and experiences gained from this med exercise, and with
the partcipaton and authorization of mermbers of s communty, Pootek developed
a Liehood Fishoris Plan.

24. The Liveinood Fisheries Plan came in effect on Septamber 20, 2020.

28. The Liveinood Fisheries Plan is a ing document that is subject to on—going review
and amendment depending on a myriad of factors, Inching community needs and
conservation requirements.

28. Licences and tags are issued under the authorly of he Chief and Councl of Pototek
to is member harvesters.

27. Rotetek conducts harvest unde is Liveitood Fisheries Plan in an area incuding St.
Peters Bay

28.St Peters Bay is wthin the scope of Pobole‘s 170061 Treaty Right.


29.0n March 2, 2021, the Honcurable Bermadat Jordan, Miniter of Fisheries and
Oceans and Canadian Coast Guard (he "Minister), wrote to Miimag First Nations n
Nova Seata communicating the Respondents intenton to, among other things,
uinlateraly restfc the Applcants‘ oxerise oft Treaty Right wi respect to lobster
harvest to the estabished commercial season and require that harvesters oblan
Heences issued pursuant to the Fishoios Act (he ‘March 2021 Restrictions‘.

30.The Minister also indlealed that authorized Moderate Lvaihood harvesters fuhing
without th above—noted leences wil be sublet to enfrcemant actons by Fishoies
and Oceans Canad.

31.The Applicants were not consulled about the March 2021 Restictons, nor did he
Applcants agree to voluntarily restic thir exercise ofthe Treaty Right inthis manner

32.0 March 3, 2021, th Minister made a publ announcement consistent wih her later
of March 2, 2021,

33.Since at ast January of 2021, a number of harvesters authorized by Pot since
2019 to exercise the Treaty Right have been charged wit offences pursuant to the
Fisheries Act.or have bean the subject of ther enforcement actions including sezure
of fehing gear such as traps.

The Rescordents Intingement ofthe Treaty Right

34.The Applicants say that aspects of he curent requatany framework, that is, he
provisions of he Fisheries Act and Regulaions described in paragraphs 35, 38 and
41 below, and the unlaterlnpostlon of the March 2021 Resticions on the conduct
of thir authorized Moderate Livelihood Fishery, consttite prima facie intingemants
of Applicants‘ Treaty Right

35.The Treaty Right is mul—species in natur. The inpostion of a general prohbtion
agaist hing without a leonce and against sling fish without a ence, as wal as
a spacies specifc Icansing regime, and prohibitions on retaining by—catch pursuant to
he Fisheries Act and Regulations, lnfnge upon the Appicants‘ Treaty Right by
effecvely denying them the cpportunty to harvest a range of Asheries resources for
Moderate Livelihood purposes.

36.Wih respect to the March 2021 Restictons in partcular, the Applcants say that he
requrement tnat authorized harvesters cbtain commercial lbstor Reenses is an
unteasonableresticton on the exercise ofthe Treaty Right an, in many cases wil
opere as a complete or near complea barrier tothe Applcants in accessing the
lebstar fhery. These icons are the producto a Imt eny system, making ham
a fate and valuable resource tat cannot be obtained by the Applicants as of right.

37. The Applicants futher say that, since the Marshall decisions, neta th Fishorios Act
or Regulaions thereunder were amended to speoty crtara for the exercise of


Mistral discretion to grant or refuse lences in a manner that recognizes,
accommodates, and proritzes the Applicants Traly Right.

38.The Treaty Fight is not me—imted i nature. The management scheme set out inthe
Fisheries Act and Requlabons is based to a large degree on seasonal restictons and
fime—limited openings. Insofar as the time that Mikmaq harvester may exorcise the
Treaty Rightis rested, and specialized vessels and gear are required for harvesting
during a designated season, lime Imted openings intinge the Applcants Treaty
Right

30.Wih respect to the March 21 Restrictions in parteuar, the Applcants say that the
requirement that authorized harvestors restrict obstor harvesting actviles to the
establshed commercial season is an unmeatonable retricion on the Applicans
Treaty Right because timpais th exercise ofthe Treaty Right during prefered tmes.

40.For the Treaty Right to be meaningfly exercised, the Apolcants must be able to
lawhily havest, retain, and sol fi harvest in accordance wih the Livelhocd
Fisheries Plan.

41.Enforcament actions taken pursuant to the Fisheries Act or Regulations against
harvestors authorized by Pollok in elation to Reonsure, timing of harvest, orspecies—
selecton whle acing in accordance wit the Livelihood Fisheries Plan actvely
nestraizes he Applicants‘ Treaty Right and breaches the Honour ofthe Crown.

‘The intingements Cannot Be dustiled

42 Any and al intingements ofthe Applcants Treaty Right by the Respondent must be
Justfed via the tost arleulated in Rv. Badger 1909) 1 scr 771.

43. This requires, among other things, a val legislative objecive, a consideration of the
special tmst relatonship and the responsibity of Canada to te Applcants. The
fnfingement must also be as mir as possbl, and there must be reasonable
compensation and consultation, including with respect to any conservation measures.

44. The Applcants recognize tat some of he above—noted prima faclo intingements
could constlute vaid Iimtatons on the Treaty Right, however, the Applcants repeat
that for this to be the case, any and al intations must be Justfed on a specion by—
species basi.

45. The Applcants have not been maaninghity consuted by the Respondent wih respect
to accommodation ofthe Treaty Right to fh for a Moderate Livelihood.

48.The Appleants were not mearinghily consulted by the Respondent wit respect to
the March 2021 Restictons which unfateraly impose imations on the Applcants
exercise ofthe Treaty Right


47:Thete has been no compansation fom Canada to the Applcant for the intingement
ofthe Applcants‘ Treaty Right toa Moderte Livelihood Ashory.

48. Conservation is not endangered by the harvest authorized by the Applcants
Uielhood Fisheries Pan.

49. he Applicants rey on th statements of the SCC in Marshall 1 and Marshal 2 to
inform he oblgation of Canada i he creumstances, including tat tis orthe Crown
to propose what contals are fused for the management of he resource, and why
they are jusifed" as wellas o he comments bythe SCC in 2 v. Gladstone, [1096] 2
SCR 723, thatin stabishing a usted intingemant ofa Treaty Right the govemmant
must demonstrate that "in alcating the resource, it has taken account of the
existence ofthe Aboriginal ights and alocatad th resource in a manner respectful of
the fact hat hase rights have prioriy over he explotaton of the fshery by other
users‘ (pare. 62)

50.The Applicants futher rey on the statements of the SCC in Marshall 1, cling R v
Adams, 1996 CanLll 169 (5CC) that Ia statute confars an administrative iseretion
which may cany signifeant consequences fr the exercise of an aboriginal ight, the
stale or its delegate requittons must outine specifc crtera for the granting or
refusal of hat cisereion which seak to accommodate the existence of aboriginal
fihis. Inthe absence ofsuch spectic guidance.. the statute wile found to represent
an nfingement of aboriginal rights under the Sparrow tot (para. 54)°

51: The Applcants say that the above—noted iningements upon thar Treaty Right cannot
be justified.


[ Count Administration
| war 1 0 102
Fom 30.08
Halter. NS
20 reece Hix No s06010
Supreme Court of Nova Scota
Between:
CHF WILBERT MARSHALL on his own behalf and on behalf ofthe
members of POTLOTEK FIRST NATION
Applcants
ara
The atrorney cenerat or canapa
Respondent
arFipavit or Jason cooke
1, Jason Cooke, of Halfax, Nova Scotia, make ath and give evidence as folous:

1... | am a Partner at Burchells LLP, counsel to the Appleants.

2. | have personal knowledge ofthe evidence swom in this affdait excapt where
othermise stated o be based on information or belef.

3. state, in thi aida, the source o any information thatis not based on my oun
personal knowledge, and I state my belef of the source

4. Apart from the Applicant, al Mikmag communttes in Nova Scata may have an
interest in matters raised by tis Applcation. These communties include Acadia
Fist Naton, Annapolis Vay Fist Nation, Bear River First Nation, Eskasont Fist
Naton, Glooscap First Nation, Membertou First Nation, Milbrook First Nation,
Pagtnkek First Nation, Pictou Landing First Naton, Sipeknekatk Fist Nation,
Wagmatcook Fist Nation, and We koqmaly First Nation.

5. Tothe bestof my knowledge atthis time, the istof possible winesses in the Notce
of Appication is complete, except wth respect to names of some winesses, which
are being determined, and subject to any noed for rebuttal witnesses. The
anticipated winesses orthe Applcants at ths time are: Chief Wibert Marshal and
Inidal Mikmaw Harvesters

zomises


8... A copy of all relevant, nom—prvleged documents within the possession or control
of the Appleants wil, applying best ffer, be provided to the Respondent on or
before the dead for the fing o atidavis in the proceeding.

7. The Applicants do not anticipate the need for discovery, but n the event tat the
partes proceed to discovery, the Applicants would fuly participate.

8. — The Applcants antipate that ony one hearing wil be required for the merts of
this Application

8. The within Application concerns the ongoing exercise of the Applicants‘ Treaty
Rights.

10. _ The within Application does not concerns rights subject to erosion

11. — To the best of my knowfedge at this time, all information that could signiicanty
affect the estinate of ime needed to prepare for the hearing and the length of the
heating self is set out in the Notice of Applicaton in Court

12... | swear this Affdavit in support of the Applcants‘ Appleation, and for no other
improper purpose

AFFIRMED TO at Halfax, inthe County .)
of Halfax, Province of Nova Scota, this .)
10. day ot May, 2021 before )
)
)
A Gamster of he Supr mor — )
Nova Scotia ) * core
seem ecouto )
Revrme une rm
Entoisetn
sions