By Andrews Bates, Local Journalism Initiative, Telegraph-Journal
An Indigenous nation has been granted intervenor status in a case involving a U.S.-based lobster fisher accused of illegally fishing in Passamaquoddy Bay.
Erik D. Francis, 55, of Perry, Maine, faces charges under the Coastal Fisheries Protection Act alleging that he illegally fished from a foreign vessel in New Brunswick waters. According to court documents, he was stopped on Nov. 15, 2022, off the coast of Deer Island by fisheries officials, who seized 36 lobster traps owned by Francis.
Francis, who is self-represented, has claimed Indigenous fishing rights as a part of the Peskotomuhkati (Passamaquoddy) Nation, which has two communities in Maine including Sipayik (Pleasant Point), where Francis lives, and the community known as Skutik in Charlotte County.
The Peskotomuhkati people, which were part of the Peace and Friendship Treaties of 1725, have not been federally recognized in Canada as a First Nation since 1951. For years, the Peskotomuhkati Nation at Skutik has been pushing to negotiate with the federal and provincial governments regarding its Aboriginal title rights.
On Friday in Saint John provincial court, Paul Williams, legal council for the Peskotomuhkati Nation at Skutik, was granted status to intervene on behalf of the nation’s three chiefs. Judge Kelly Ann Winchester heard arguments in October about the application, which would allow Williams to call witnesses and make submissions to the court.
“This is a subject matter that involves complex legal issues based on Aboriginal and treaty rights,” Winchester said in her decision, adding it’s a unique case for the court.
Winchester said the chiefs had argued they had expertise to intervene regarding negotiated treaties on the right to fish, and that their interest in participating was to protect and promote their treaty rights. She said the Crown had argued that without evidence on the table, it wasn’t possible to determine if Williams’s clients had expertise.
The judge said the issues would impact the nation and that experts would offer a “different and relevant perspective” without unnecessarily increasing the length or complexity of the case, and allowed the application.
Afterwards, Crown prosecutor Leonard MacKay said the Crown had closed its case following the introduction of an agreed statement of facts.
In the statement, fisheries officers said that on Nov. 15, 2022, they found 36 lobster traps in Lobster Area 36 near Deer Island and the U.S. border with tags issued to Francis in Maine. When two vessels arrived, including Francis’ boat Bug Zappah, Francis took ownership of the traps, according to documents.
He told officers the border was an “imaginary line determined by governments” and that the area was the traditional fishing grounds of the Passamaquoddy Tribe, according to documents. He also cited the 1999 Supreme Court of Canada decisions recognizing Indigenous treaty rights for moderate livelihood fishing.
According to the statement, Francis had asked for the traps that had been pulled up and requested a month to remove his traps that were still in the water. When fisheries officers refused the request, they say they watched Francis’ vessel turn away and pick up a number of additional traps.
After stopping him two more times, the officer issued a court summons and seized the 36 traps, the statement said.
On Friday, Williams said he’d need some time to speak to possible witnesses. Crown prosecutor Peter Thorn brought up the issue of delay, and Francis said he would wave delay concerns.
Francis is also facing Coastal Fisheries Protection Act charges related to a second incident Sept. 20, 2023, of unlawfully fishing for lobster in a foreign vessel and obstructing a fisheries officer along with Erik S. Francis, 28, of Perry, Maine, and Tyler Francis, 26, of Herrington, Maine. Federal spokesperson Lauren Sankey said in August that the charges relate to an alleged seizure of 12 traps during a patrol of the bay.
That case is set for trial on Dec. 1 and 2, 2025, and on Tuesday, all three appeared by phone for pre-trial conferences. Erik D. Francis said that he was going to speak to the Passamaquoddy Tribe about the case, noting that it also has constitutional issues.
“You’re a busy guy,” Winchester said.
“Apparently, it still doesn’t change fact that I have the right to engage in the activities we were engaged in,” Francis said.
Winchester said that would be a decision of the court and Francis said “Absolutely.”
Erik S. Francis said he had his disclosure and was speaking to the nation about a lawyer. Tyler Francis said he hadn’t gotten disclosure from the Crown yet, and prosecutor Jillian Jordan said they needed Francis to respond to an email to confirm his address.
Tyler Francis said he hadn’t checked his email due to being busy, saying it’s a bigger issue than the case at hand, saying “there are numerous other fishermen who are fishing that line.”
Winchester said it wasn’t the time to discuss what happened, and reminded him his trial is coming up in December.
“I ain’t too worried about it, I just need that disclosure sent over,” Francis said.
Winchester asked if he’d know in a month if he was getting a lawyer and he said he didn’t know.
“That gives you four weeks, something that’s so important, hopefully you put that on your to do list,” Winchester said.
“I don’t see it as that important,” Tyler Francis said.
“Well it is important,” the judge replied.
The three defendants were set to return for pre-trial conferences March 25.
With files from John Chilibeck
