N.S. First Nations to exercise right to moderate livelihood during upcoming lobster season

For the third consecutive year, four First Nations in southwestern Nova Scotia will exercise their treaty right to fish for a moderate living when Canada's most lucrative lobster fishery opens next week.

The Department of Fisheries and Oceans announced Monday that it has again issued an interim authorization to Wasoqopa'q (Acadia), Annapolis Valley, Bear River and Glooscap First Nations.

The "understanding" between DFO and the groups authorizes an overall number of 5,250 traps distributed across Lobster Fishing Areas (LFA) 33 and 34 which run from Halifax to Digby and LFA 35 in the upper Bay of Fundy, where there is a limit of 1,000 traps.

In 2022, DFO announced it had approved 3,500 traps for the four bands. It later quietly increased the number by 50 per cent to 5,520 traps. The allocation was never announced and the incorrect lower number remains on the DFO website.

A department spokesperson said the number of traps may be increased again this year, without notice.

"This total allocation is subject to change. The Department continues to work with the Kwilmu'kw Maw-klusuaqn Negotiation Office on the 2023-24 fishing plan that is enabled through this interim authorization," wrote Lauren Sankey in an email.

"Should this work result in any additional access being provided, it will be done in a way that does not increase overall fishing effort."

Sankey said DFO will confirm any increases if asked by the media.

The department said the authorization is not an increase in the overall size of the fishery since traps allocated to the First Nations are from traps removed or retired from the commercial fishery and "banked."

"Reconciliation is a key priority of the Government of Canada, and an important part of that commitment is to uphold the First Nations' treaty right to fish," federal Fisheries Minister Diane Lebouthillier said in a statement.

Bands fishing within commercial season

DFO insists that moderate livelihood fishing must occur during commercial seasons — a limitation that some Mi'kmaq do not accept.

The right to earn a moderate living was recognized — but not defined — by the Supreme Court of Canada more than 20 years ago in the Marshall cases.

The court also ruled Canada has the right to regulate moderate livelihood fisheries for conservation and other reasons.

Since the Marshall decisions Canada has spent $530 million for licences, vessels and gear, and training in order to increase and diversify First Nations' participation in the commercial fisheries and pursue moderate livelihoods.

By 2020 in Nova Scotia, First Nations held 684 commercial fishing licences across many species.

Canadian authority still routinely challenged

The Sipekne'katik First Nation has regularly challenged Ottawa's power to regulate moderate livelihood fishing for lobster and elvers, the baby eels worth $5,000 a kilogram.

Once again this summer Sipekne'katik members openly defied DFO by catching lobsters in St Marys Bay inside LFA 34 when the commercial season was closed.

And once again it led to arrests and seizures by Fishery officers.

Assembly of Mi'kmaw Chiefs argue for more

Meanwhile, eight chiefs belonging to the Assembly of Nova Scotia Mi'kmaw Chiefs wrote to DFO officials in September arguing the department must greatly increase approvals for moderate livelihood fishing to deliver on the court-recognized right.

"We acknowledge the Department of Fisheries and Oceans (DFO) as having a role in the realization of our TRP [Treaty Right Protected] Rights and appreciate the opportunity to engage in constructive dialogue," the chiefs said.

The assembly said the moderate livelihood share of the overall fishery is a pittance, adding that 10,954 traps fished throughout the gulf and Maritimes regions by Indigenous harvesters amounted to less than one per cent of the commercial fishery.

The chiefs said Indigenous harvesters landed 193,273 pounds of lobster between July 2022 and October 2023 compared to the commercial fleet during record high landings of 168 million pounds in 2016.

Some of that catch was harvested by Indigenous communities holding communal commercial lobster licenses.

They said the level of Indigenous moderate livelihood fishing is unacceptably low.

"The systemic limitations placed on our TRP fishery cannot be justified," the letter states.

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