Listuguj impatient with failure to define 'moderate livelihood' in fishery

Listuguj's fall lobster fishery is underway in the Bay of Chaleur, and the First Nation's plan to sell part of the catch isn't covered by its licence, despite a 21-year-old Supreme Court of Canada ruling.

The Mi'kmaq community says most of the catch will be distributed to community members for food, and the rest will be sold to finance fisheries operations and community initiatives to support economic recovery from COVID-19.

The licence from the Department of Fisheries and Oceans prohibits the sale of Listuguj's catch this fall, limiting it only to be used for food, social and ceremonial purposes.

Chief Darcy Gray said this goes against the Supreme Court of Canada's 1999 decision on the Donald Marshall case, which reaffirmed a Mi'kmaw fisherman's right to a "moderate livelihood" under the Peace and Friendship Treaties of 1760-61.

"Canada tells us repeatedly that they acknowledge our treaty right to sell fish in pursuit of a moderate livelihood," Gray said in a news release. "But as an institution, the DFO won't change how it operates to allow us to sell the lobster we catch every fall. Instead, they criminalize us for exercising our rights. That is systemic racism. It continues year after year.

"For us, it's a violation of our rights confirmed in treaty, the right to a moderate livelihood that was confirmed in the Marshall case, and that's where this comes from."

Gray said the First Nation has been waiting for 21 years for some movement beyond the "initial allocation of a small portion of these quotas or our fishing efforts." 

Without a clear definition of what a "moderate livelihood" is, Mi'kmaq communities like his have begun to develop their own fisheries management plans to exercise their rights.

"We're trying to move on to that 'moderate livelihood' aspect and define that for ourselves as First Nations, but with the current systems and structures in place, we don't seem to be able to get there," Gray said. "I think that's a major point of frustration for us as Mi'kmaq people."

Last fall, Listuguj government developed its own fisheries management plan, similar to what is being done in Nova Scotia by Sipekne'katik First Nation, which launched a self-regulated lobster fishery last a week ago in Saulnierville.

Main season in spring

Gray said Listuguj's fishermen will be fishing 235 traps for a total of two weeks this fall, which is separate from the community's spring commercial fishing season.

"We kicked it off last fall and fished under our own law, issued our own tags and enforced our own management plan," Gray said. "We just dropped our traps again this year, under the same law and same jurisdiction."

Gray said that last year, the Department of Fisheries and Oceans refused to issue licence conditions consistent with the Listuguj plan, which allows a small commercial aspect to the fall fishery that otherwise would only be for food, social and ceremonial purposes.

"That's what we authorized last year as chief counsel to our law, and then we've done it again this year. And again, DFO has said the same, that they don't recognize the commercial aspect," Gray said. "Last year, they shut down the markets. They deemed that any lobster caught would be considered illegal and the usual markets couldn't touch it."

Gray said he expects Fisheries will again threaten buyers with fines should they purchase any of Listiguj's catch from these licences.

In an email to CBC News on Wednesday, the Fisheries Department said it recognizes First Nations' right to hunt and fish in the pursuit of a moderate livelihood and is working with them to implement it.

"Implementing the Marshall decision is critical to the work of reconciliation and it is a priority of the government," spokesperson Benoit Mayrand wrote.

Last year, Listuguj was able to make trade relations with other First Nation communities in the absence of buyers, which he said was an exciting opportunity to build community ties and economic opportunities.

Following DFO guidelines

"What we were able to do last year is work out agreements with other First Nations communities, a nation-to-nation, community-to-community trade agreement, and we're going to look the same this year if we have to."

Gray said that Listuguj's fishery plan follows the same guidelines as DFO in terms of conservation and the catch won't be any larger than what it's been each year the past 21 years.

"The entire fishing effort is within the authorized fishing effort that DFO would normally provide. There is nothing over and above. This is not a food fishery on top of the commercial fishery. It is entirely within the allocation or the allowable effort that DFO normally authorized for us as a community."

Fishery started with little commotion

Gray said that he sees a huge difference in response to Listuguj's fishery management plan compared to the response that Sipekne'katik have received, espoecially from non-Indigenous fishermen.

"We dropped our traps and yesterday to little fanfare and no opposition. We know that there are lobster fishers maybe down the coast that do have an issue, but I think their response has been different.

"We've certainly communicated that this is well within conservation limits, that there is a harvesting plan, that it is enforced and well managed. This is not a free-for-all fishery."  

Gray said it is the same case for Sipekne'katik, though he doesn't think that the understanding is there from the non-Indigenous commercial fishermen in that area.

George Ginnish of Natoaganeg First Nation in New Brunswick said his community developed a similar fisheries management plan last spring for snow crab.

"We have a snow crab management plan. Eel Ground has one that was sent to DFO last May. We haven't got a response to it," Ginnish said. "We don't have the resources to keep developing plans if our stuff is going to be shelved and not discussed."

Ginnish said that when his community tried to exercise their treaty right to fish, they had their traps seized and buyers were also threatened with fines.

Natoaganeg does not have access to food, social, ceremonial fishing licence at the moment and Ginnish said it has been difficult for his community.

"It's the government that really needs to get their act together and meet with our Atlantic First Nations and start implementing this and start looking at what existing quotas are there and set aside for our communities, so that we can benefit."