N.S. judge issues injunction to end interference, threats against Sipekne'katik fishery
Paul Withers | CBC News | Posted: October 21, 2020 5:03 PM | Last Updated: October 22, 2020
Band cites 'notorious campaign of violence, intimidation and property damage'
A Nova Scotia Supreme Court judge has issued a temporary court injunction to end blockades, interference and threats against Sipekne'katik band members lobster fishing in southwest Nova Scotia.
The band applied Wednesday for an injunction to prohibit anyone from trying to stop members from accessing two wharfs in the region, in Saulnierville and Weymouth, and a lobster pound it uses in New Edinburgh.
The band was also seeking to end interference at sea, where it says traps have been damaged, destroyed or taken by non-Indigenous fishermen.
The decision Wednesday by Justice Jamie Chipman to approve the interim injunction following a short hearing in Halifax means police are required to arrest and remove any person who violates its terms.
In granting the injunction, Chipman talked about the deep historic links between the Acadian and Indigenous communities.
"I would hope everyone could agree that violence is no way to sort things out," Chipman said.
"We are in a civilized nation with the rule of law ... Canadians are better than this."
The Saulnierville and Weymouth wharfs were the scene of ugly confrontations between commercial and Mi'kmaw fishermen after the band launched its own self-declared moderate livelihood lobster fishery last month.
Last week, hundreds of commercial fishermen and their supporters gathered outside the New Edinburgh lobster pound, which has been the target of vandalism.
The court application said "band members have been subjected to an ongoing and notorious campaign of violence, intimidation and property damage by non-Indigenous fishers and their supporters."
Sipekne'katik Chief Mike Sack said in an interview in Digby, N.S., that the injunction is a response to safety concerns for band members.
"We're looking to keep anyone away who could do harm to people involved, and de-escalate the situation and ensure everyone's safety for people in and around the wharf, and bring peace to what's going on," he said.
The band says it is exercising the Mi'kmaw right to fish for a moderate livelihood affirmed by a 1999 Supreme Court ruling known as the Marshall decision. However, there is some debate about the definition of the term "moderate livelihood" and the Mi'kmaw lobster fishery is taking place while the commercial season is closed and without regulation by the Department of Fisheries and Oceans.
Commercial fishermen have reacted violently to the fishery.
One of the affidavits filed by the band to support the injunction is from Jason Marr, a Sipekne'katik fisher who received a moderate livelihood licence and 50 trap tags when the fishery was launched on Sept. 17 at the Saulnierville wharf.
Marr said when he and other band fishermen sailed out of the harbour that day they were confronted by a flotilla of 75 boats with non-Indigenous fishermen that circled Sipekne'katik vessels in an attempt to intimidate them.
Marr said since then, his traps have either been taken, destroyed or had their lines cut, and gear stored at the Saulnierville wharf has been stolen.
He said he has had to buy 260 traps in the past two months to replace what has been lost.
"In the approximately six weeks since the season began, I have only caught a small number of lobster," he said in the affidavit.
RCMP will enforce injunction, commissioner says
Before the injunction was issued, RCMP Commissioner Brenda Lucki said the force would obey any court order.
"With any court order or injunction, if there is an enforcement order we will definitely enforce," Lucki said Wednesday in Ottawa.
She said the order was not needed for the RCMP to do its job.
"If people are not abiding by the law according to the Criminal Code of Canada, we will step in, we will intervene, we will investigate and we will hold those people to account through the judicial system," Lucki said.
"We would like peaceful resolutions, and often in some of these cases we use our divisional liaison teams to have that dialogue, so people have the right to peaceful protest, we can keep the peace, we can keep people safe."
Colin Sproul of the Bay of Fundy Inshore Fishermen's Association said his group and allied fishing organizations condemn the violence "on a fundamental level."
"As Canadians, we should expect to solve our problems through dialogue — not through violence. That is not the way," he told CBC News.
New details on Pubnico mob incident
In his affidavit, Marr said that last week he and another Sipekne'katik fisherman, Randy Sack, took 33 crates of lobster to a pound in the community of Middle West Pubnico because the facility the band uses in New Edinburgh, was surrounded at the time by commercial fishermen.
Sack is the son of the late Donald Marshall Jr., whose case involving eel fishing was at the centre of the Supreme Court's moderate livelihood decision 21 years ago.
Marr said after he and Sack unloaded and weighed the lobster in Middle West Pubnico, the building was surrounded by an angry mob that threatened them. The men locked themselves in the building as the numbers outside grew.
When six to 10 RCMP officers arrived, Marr said they told him "they were unable to ensure my safety because the mob was so large and they had so few officers present."
In the affidavit, Marr said the RCMP stood aside as members of the crowd vandalized and destroyed property and removed lobster from the pound.
He and Sack were eventually escorted out of the building — safely but without their lobster — and picked up by Marr's sister, who had also arrived on the scene.
Since the incident, Marr said, he has not fished lobster either with his moderate livelihood licence or with his smaller food, social and ceremonial licence.
"I am afraid for my safety and do not want to incur more damage to, or theft of, my fishing gear," he stated in the affidavit.
Included in Marr's affidavit was a USB key containing a copy of a Facebook Live video he recorded the night of the Pubnico incident.
"I have participated in some interviews with media and believe based on that I have gained some notoriety as an Indigenous fisher," he said. "I have been threatened on social media. Because of the threats and my experience on October 13, 2020 I do not leave my home as often as I do otherwise."
Several days after the mob scene in Pubnico, the pound there burned to the ground in a fire authorities say is suspicious.
The injunction was sought without the knowledge of the commercial fishing industry.
"The acts in question have been committed by persons unknown who are hostile to the Indigenous rights-based fishery," the band claims in the injunction, which was sought without the knowledge of the commercial fishing industry.
The respondents are identified as John Doe, Jane Doe and persons unknown.
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