First Nations lobster fishermen in N.S. not required to observe whale closure

A Department of Fisheries and Oceans (DFO) fishery closure in Nova Scotia this week to protect endangered North Atlantic Right Whales will not apply to First Nations lobster fishermen in the area, CBC News has learned.

The department is allowing ceremonial lobster fishing in St. Marys Bay to continue, raising concerns about conservation and fairness.

Closures were announced on Monday after a right whale was spotted at nearby Tiverton.

On Wednesday, the department informed First Nations with active food, social and ceremonial lobster fisheries in the area the order does not apply to them.

"DFO is implementing a closure for certain fisheries in the surrounding area which pose an entanglement risk," Yarmouth-based manager Todd Stevens wrote.

"While Indigenous food, social and ceremonial (FSC) fisheries are not impacted by this closure, we wanted to share the related information with you for your awareness, and potential action according to any related community protocols that may exist."

Who is affected and why

All commercial crab and herring fisheries with unattended gear in the water are being ordered out of St. Marys Bay effective 5 p.m. on Thursday, which is standard practice after sightings. There is no commercial lobster fishing in St Marys Bay right now as that season is closed.

Canada imposed fixed-gear fishery closures in Atlantic Canada after a slew of the critically endangered whales died in the Gulf of St. Lawrence beginning in 2017. 

At least two of the dead whales were found entangled in crab gear.

The Department of Fisheries and Oceans did not explain its decision regarding the closure in St. Marys Bay. 

"Food Social and Ceremonial (FSC) lobster fisheries that are currently licensed in this area can continue," DFO spokesperson Lauren Sankey said in an emailed response to CBC.

"The department continues to work with First Nations on the management of FSC harvesting activities related to whale protection as part of ongoing consultation processes."

Concern from commercial fishermen

Dan Fleck of the Brazil Rock 33/34 Lobster Association represents commercial fishermen in the area. He said he's been getting calls from concerned fishermen this week.

"I would expect that the rules would be applied fairly and equitably amongst all resource users," Fleck said.

Fleck said in the case of an entanglement, it won't matter whose gear it was.

The U.S. Marine Mammal Protection Act can block market access to seafood found to harm whales.

"It would jeopardize all commercial fisheries, because it could be viewed as Canadian lobster fishermen killing whales. They will not be concerned with whether it was an Indigenous person or a commercial harvester."

Sean Brillant is manager of the Canadian Wildlife Federation and has advocated for right whale protections for years.

'Seems contrary to the purpose of the closures'

Brillant said unless whale-friendly gear is being used, no lobster fishing should be permitted in a closed area.

"If they are not using gear that would prevent the entanglement of whales, then this seems contrary to what the purpose of these closures are for," Brillant told CBC News.

"I am surprised if it is permitted to continue to use typical gear."

Fleck says FSC fishing in St. Marys Bay has been underway all week.

The Sipekne'katik First Nation has been active in the FSC lobster fishery in St. Marys Bay.

Chief Mike Sack did not respond to a request for comment.

The First Nation did release the letter it received from DFO on the matter, but a communications adviser was unable to say if the First Nation had changed its fishing operations in light of the whale sighting.