Fishing group wants judge to declare Sipekne'katik First Nation lobster fishery unlawful

A group representing commercial fishing interests has filed a lawsuit against the chief of a central Nova Scotia First Nation and wants a judge to declare that the band's summer and fall lobster fishery in St. Marys Bay is unlawful and they do not have a treaty right to it.

The suit was filed Thursday in Nova Scotia Supreme Court by the Unified Fisheries Conservation Alliance and comes at a time of renewed tensions in southwest Nova Scotia over a fishery operated by Sipekne'katik First Nation outside of the commercial season.

The lawsuit claims lobster stocks in St. Marys Bay have been hurt, forcing 30 licensed commercial fishermen to "abandon" the area, harming the incomes of those that remain and leading to the closure of a lobster processing business in the area.

"We're seeing the removal of tens of thousands of pounds of lobster from St. Marys Bay," said Colin Sproul, the president of the Unified Fisheries Conservation Alliance.

CBC has reached out to Sipekne'katik Chief Michelle Glasgow for comment. Ron Pink, a lawyer who represents the band, said he'd not yet been served with the statement of claim and couldn't comment. The lawsuit also names the Attorney General of Canada as a defendant.

2020 fishery

The Mi'kmaw band launched its own fishery in September 2020 outside of federal regulations, issuing its own lobster trap tags and licences, and arguing its members had a treaty right to make a "moderate livelihood" by selling their catches.

Several weeks of unrest followed, with commercial fishermen claiming the fishery was a cloak for a large-scale commercial operation. Lobster pounds were surrounded and one was set on fire.

The band has operated the fishery each year since.

In 1999, the Supreme Court of Canada ruled in the Marshall case — which involved fishing for adult eels — that Mi'kmaq had a treaty right to fish, hunt and gather for a "moderate livelihood." The court did not define the term and said the federal government could regulate under certain circumstances.

The Department of Fisheries and Oceans has faced heavy criticism, both from Indigenous and commercial fishing groups, for how it's handled enforcement in both the lobster fishery and the highly lucrative but fraught fishery for baby eels.

Mediation

In 2021, Sipekne'katik filed a lawsuit and sought a declaration from the court that the federal Fisheries Act and regulations infringe on the treaty right to fish lobster for a moderate livelihood.

Two months ago, a judge agreed to allow the band and the Attorney General of Canada to enter into mediation, although litigation will resume if an agreement is not reached by December. The Unified Fisheries Conservation Alliance is an intervener in the case.

"These mediation processes have been in action for more than 20 years," Sproul said, when asked why the alliance was not waiting for the results of the process. "The industry and the resource need legal clarity in the vacuum that we're operating in now, so that all participants to the fishery can understand what the rules are." 

In its new statement of claim, the fisheries group says lobster was not traditionally traded by the Mi'kmaq when the Peace and Friendship Treaty of 1760-61 was signed, and that St. Marys Bay was not part of traditional Sipekne'katik territory.

The alliance wants a judge to declare Sipekne'katik has no treaty right to a commercial fishery, or a right to fish in St. Marys Bay. It also wants the judge to rule that "federal provisions" do not infringe on the band's treaty right to fish, and that they are justified.

The claim also argues that financial resources "from government and from private endeavours, are sufficient to constitute a moderate livelihood without an unregulated summer/fall commercial lobster fishery in St. Marys Bay."

One of the lawyers representing the fisheries group is Alex Cameron, a former provincial government lawyer who wrote a book published in 2009 that was critical of the Supreme Court's decision in the Marshall case.

In 2016, as a Department of Justice lawyer, he authored a legal brief in another case involving Sipekne'katik that said the Crown's obligation to consult extended only to "unconquered people." That statement was subsequently disavowed by then-Premier Stephen McNeil.

Cameron was removed from the file. He abruptly retired the next year and sued the premier and the justice minister for defamation, abuse of public office, constructive dismissal and violation of his constitutional rights.