Federal government distributes first of 322 dormant commercial fishing licences to Maritime First Nations

The federal government has started to distribute dormant, or "banked," commercial fishing licences to First Nations in the Maritimes to finally implement a 1999 Supreme Court ruling that First Nations are entitled to earn a moderate livelihood from the fishery.

The first 10 "banked licences" — out of a pool of 322 available in the Maritimes — were issued this month to Elsipogtog and Esgenoôpetitj First Nations in New Brunswick as part of historic Rights and Reconciliation Agreements signed in August 2019. The agreements settled moderate livelihood negotiations between Ottawa and the two bands.

They were lobster licences retired decades ago from Lobster Fishing Area 25 (LFA 25) in the southern Gulf of St Lawrence.

The Department of Fisheries and Oceans says it set aside licences for precisely this reason, but the reactivation has upset commercial fishermen who claim the entry of licences dormant for decades amounts to "new effort" in the fishery.

"We're not talking about being part of the treaty negotiations. That's not what we're asking for. We were asking to be part of the discussion when it comes down to taking any type of decision or a discussion surrounding fisheries management," said Martin Mallet, executive director of the Maritime Fishermen's Union.

"We were not consulted. We should be consulted. We don't know if they are going to move these licences or concentrate them in ports near the bands. That creates issues over conservation ," Mallet says.

DFO: banked licences a tiny fraction of fishery

The department of Fisheries and Oceans insists the banked licences represent "a very small fraction of the active commercial licences."

For example, in the Maritimes region there are currently 2,945 lobster licences, and banked licences represent only half a per cent of that total, a DFO document obtained by CBC News states.

Indigenous holders of commercial licences are under the same rules as non-native fishermen.

DFO spokesperson Barre Campbell said in a statement that the department's stock management has always taken into account all available licences whether or not they have been actively fished.

"The reissuance of these existing licences will not affect the sustainability of stocks. Indeed, lobster landings in LFA 25 in recent years have been among the highest levels in the past 20 years," Campbell said.

DFO refuses to say how or when the licences will be distributed, on the grounds that negotiations are confidential.

"So as not to impact ongoing and future Rights Reconciliation Agreement negotiations, DFO will not be releasing the number of banked licences it holds, nor other details, such as species and/or fishing area(s)," Barre said.

CBC News has obtained the list of banked licences in the Maritimes. DFO has confirmed the accuracy of the information.

A breakdown of the banked licences

The pool of 322 banked licences cover a wide variety of species including lobster, scallop, swordfish, herring and oysters.

A partial list:

• In Nova Scotia, banked licences include 17 commercial lobster licences, 15 for herring, 11 for groundfish and five for swordfish.
• In New Brunswick, banked licences include 16 for lobster (10 have been distributed), 17 for herring, 16 for oysters, 12 for clams and six for sea scallops.
• In PEI, banked licences include 38 for oysters, 19 for mussels, 18 for clams and only one for lobster.

The total breakdown per province: 99 licences in Nova Scotia, 122 in New Brunswick and 101 in Prince Edward Island. There is a complete list at the bottom of this story.

DFO says it has committed not to move the licences between provinces.

The Mi'kmaq Rights Initiative, which represents chiefs in Nova Scotia, did not respond to a request for comment.

Fisheries lead Chief Terry Paul of Membertou First Nation was unavailable.

Time for another buyback?

Martin Mallet of the Maritime Fishermen's Union says Ottawa should consider a new buyback program to buy out existing licence holders if it wishes to distribute commercial licences to Indigenous communities.

Since the right to a moderate livelihood was affirmed in the 1999 Marshall decision the federal government has spent $545 million to promote Indigenous fishing, mostly to buy commercial licences for First Nations and training.

In an assessment published last fall on the 20th anniversary of the Marshall decision, the Macdonald-Laurier Institute estimated on-reserve revenues in the Atlantic region increased from $3 million to $152 million in 2016.

While it has been largely peaceful on the water between Indigenous and and non-Indigenous fishermen, tensions have erupted in recent years in southwest Nova Scotia over the Indigenous food, social and ceremonial fishery.

Tension again in St. Marys Bay

Once again this summer tensions are on the rise over the Indigenous harvest of lobster in St. Marys Bay, which is closed to commercial fishing.

The fishery is conducted under a food, social and ceremonial licence, which prohibits the sale of the catch.

Non-native fishermen say the licences are being used as cover for an unregulated commercial fishery and have demanded enforcement of the rules.

Fisheries and Oceans Canada says it is aware of the concerns raised by some industry members and associations about fishing activity.

"DFO does not authorize the sale of fish caught under a Food, Social and Ceremonial licence," spokesperson Campbell said in a statement. "Therefore, it is illegal to buy, sell, barter or trade fish unless it was caught and retained under the authority of a licence that permits the sale of fish....The Department is working with First Nations through the Rights Reconciliation negotiations process to implement this right.

"We encourage all those wishing to participate in Indigenous fisheries not currently authorized, to work with their community to discuss how these fisheries may be considered as part of these negotiation tables."

A complete list of the licences is below: