Mi'kmaq tackle decades-old standstill on fishing rights with historic, self-regulated lobster fishery
Nic Meloney | CBC News | Posted: September 19, 2020 12:44 PM | Last Updated: September 19, 2020
New, ‘moderate livelihood’ strategy met again with fierce opposition from non-Indigenous fishing communities
After decades of differing opinions with government officials on First Nations' right to earn a "moderate livelihood" while fishing, a Mi'kmaw community in Nova Scotia has launched its own Mi'kmaq-regulated, rights-based lobster fishery.
It's said to be the first of its kind in the province.
Hundreds of Mi'kmaq from across the province gathered on the federal wharf in Saulnierville, N.S., on Thursday, to celebrate the launch by Sipekne'katik First Nation.
The ceremony, which included the distribution of licences and lobster trap tags to seven Mi'kmaw harvesters from Sipekne'katik, took place exactly 21 years after a landmark Supreme Court ruling in the case of Donald Marshall Jr.
On Sept. 17, 1999, the court ruled that Marshall, charged with fishing eels outside of the Department of Fisheries and Oceans [DFO] regulated season, was justified in doing so — under the 1760s Peace and Friendship Treaties.
"[It's] 21 years since the Marshall decision, so there's a lot of emotion," said Mi'kmaw harvester Robert Syliboy, who received one of the new licences.
"Our band is behind us, everyone's behind us, and we're not taking no for an answer. The government's got to come to the table. It's been long enough. We've waited long enough."
Following the 1999 Marshall ruling, Mi'kmaw harvesters across the Atlantic region, who'd begun fishing lobster outside of DFO regulations, were met with fierce opposition. Violence between Mi'kmaw and non-Indigenous fishers erupted on the waters in New Brunswick and Quebec in the weeks following the decision.
Opposition from non-Indigenous fishers ultimately led to a rare clarification on the case, known as Marshall 2. In it, the court clarified that the federal government, through DFO, could still regulate Mi'kmaw harvesting for the purposes of conservation, if it consulted with the First Nation and could justify the regulations.
In 'Marshall 2,' the supreme court ruled that governments must justify restrictions or regulations on treaty rights based on previous, legally-tested criteria including "a valid legislative objective" such as conservation, "whether there has been as little infringement as possible" on rights, and "whether the aboriginal group in question has been consulted" on the government's proposed restrictions.
Twenty-one years later, that same opposition revealed itself a few kilometres offshore from the Saulnierville wharf, where up to 50 lobster fishing boats from numerous non-Indigenous fishing communities circled the first Mi'kmaw boats to push off and drop the traps.
"It was just straight intimidation," said Syliboy. "They were sailing in close and saying, 'We're going to cut your buoys,' right after we set [the traps]."
The tensions continued until later that evening, when a video posted to social media surfaced, showing emergency flares narrowly missing a Mi'kmaw boat fleeing up to a dozen fishing vessels near Saulnierville.
According to Sipekne'katik officials, the band has been unable to find common ground in recent discussions with DFO on the definition of "moderate livelihood." As a result, the community's fishery will allow Mi'kmaq to harvest and sell their catch, under regulations enforced by Mi'kmaw compliance officers.
The plan also includes licences for non-Mi'kmaw lobster consumers that state their purchase is legal, as per the Peace and Friendship Treaties.
In an email statement Friday, DFO Minister Bernadette Jordan extended an invitation to "Indigenous leadership and industry leadership," to meet with her and find a "peaceful resolution on the water."
"The issues surrounding this fishery are longstanding, complex and deeply personal to all involved," she said. "The goal is, and always has been, to further implement First Nations' rights and have everyone participate in a constructive and productive fishery."
'Modern rights, historic treaties'
DFO's lack of definition on the Mi'kmaw right to fish was a problem from the beginning, said Melanie Wiber, an anthropologist recently retired from the University of New Brunswick. Her research expertise includes how cultural, religious or spiritual laws intersect with the laws of states or other nations.
"This is one of the things about [Indigenous] experiences after colonization," Wiber said of the recent developments in N.S.
"Much of their behaviour was created as illegal behaviour under state law."
In 2007, Wiber co-authored a report titled "After Marshall: Implementation Of Aboriginal Fishing Rights In Atlantic Canada," with Chis Milley, an adjunct professor at Dalhousie University in Halifax.
Their report examined how the federal government responded to the first and second Marshall decisions in the early 2000s, and how Mi'kmaw fishing practices "were disregarded" under DFO's regulations and conservation mandate, she said.
Wiber said the government's approach was likely influenced by the collapse of codfish stocks in the mid-1990s, and also an attempt to avoid further violence among the fishing communities.
At the time, DFO operated under the belief that there would be enough fish to add more Mi'kmaw harvesters to the fishery, without restricting the existing fishing communities, she said.
"The federal government began from the position that they could not possibly increase fishing effort on the East Coast," she said.
"They had to somehow integrate Indigenous fishing rights into the existing [fishing] effort, which meant taking some effort out somehow. How are they going to do that?"
In 2000, following months of discussions and negotiations on how to share the resource, DFO began redistributing existing lobster licences and signed agreements to establish economic development, training and lending programs in Mi'kmaw communities.
"I think [it] was an attempt to ... create modern rights based on historic treaties," Wiber said.
"I don't believe it was the only option, but it fit within the sort of paranoid framework of a government that'd already created one crisis in the fisheries, through bad fisheries management."
Sipekne'katik's moderate livelihood fishery is the first of what could become multiple Mi'kmaw-regulated fisheries launched in the province. Potlotek First Nation is scheduled to launch their own on Oct. 1, according to the community's chief.
"We're doing the same thing," Wilbert Marshall. said. "We'll follow a community plan, which we've been talking about it for the last two or three months now ... 21 years is long enough."
Marshall said Potlotek's operation will be similar to Sipekne'katik's, with a licence and up to 70 tags issued to their harvesters and said DFO was notified of its plan.
"We let them know what's up, but we didn't have to," he said.